McDaniel v Barresi, Jr. Brief Amicus Curiae

    m  THE

Supreme Court of the United States
October Term, 1970

No. 420

CHARLES McDANIEL, et al.,
Petitioners,

-VS-

JOSEPH BARRESI, JR., et al.,
Respondents.

On W rit o f Certiorari to the Supreme Court 
o f Georgia

BRIEF OF THE STATE OF GEORGIA 
AS AMICUS CURIAE

Arthur K. Bolton 
Attorney General
Harold N. Hill, Jr.
Exec. Assistant 
Attorney General
Alfred L. Evans, Jr. 
Assistant Attorney General
J. Lee Perry
Assistant Attorney General

PLEASE ADDRESS ALL 
COMMUNICATIONS TO: 
Alfred L. Evans, Jr.
Asst. Attorney General 
132 State Judicial Bldg. 
Atlanta, Ga. 30334 
Telephone (404) 525-0401



INDEX

INTEREST OF THE STATE OF GEORGIA. . . .  1
Page

QUESTIONS PRESENTED.....................................  2
STATEMENT............ ................................................. 2

(1) Nature of the Case............................................. 2
(2) Statement of Facts........................................  3

SUMMARY OF ARGUMENT...............................  20
A R G U M E N T .....................    24

(1) Governmental attempts to impose racial exclu­
sions (i.e., quota, percentage or balance require­
ments) upon pupils and teachers in Georgia’s 
public schools are unauthorized by the Constitu­
tion and laws of the United States in the first 
instance, but in any event are prohibited in that 
they violate transcendental rights secured to 
children, parents, teachers and the State itself 
under said Constitution and laws....................  24
(a) The government of the United States is with­

out legal authority to impose racial exclusions 
by coercing school attendance in such manner 
as to achieve any particular balance, quota, 
number or percentage requirement for a given 
race in a given school..................................  26

(b) Even if a rational connection could be said to 
exist between the legitimate governmental goal 
of prohibiting State-required racial separation 
and the imposition of racial quotas as one 
available means of achieving this legitimate 
end, such means is a remedial oversweep 
which violates transcendental countervailing 
rights, privileges and immunities secured to 
parents, pupils, teachers and the State by the 
Constitution and laws of the United States. 36

x



Page

(2) Even if racial exclusions in the form of quota, 
percentage or balance requirements could be said 
to be constitutionally permissible or required, 
existing lop-sided enforcement against children, 
parents, teachers and school districts in Southern 
States only, constitutes invidious sectional dis­
crimination which in and of itself is violative of 
rights secured to such persons under the various 
“due process” and “equal protection” guarantees
of the United States Constitution...................  46

CONCLUSION.......................................................... 54

u



TABLE OF AUTHORITIES

Page

Cases

Alexander v. Holmes County Board o f Education,
396 U.S. 19 (1969)................................. 3,21,30,32,56

American School o f Magnetic Healing v.
McAnnaulty, 187 U.S. 94 (1902)..................... 52

Banks v. Housing Authority, 120 Cal. App. 2d 1,
260 P. 2d 668 (1953)........................................... 21,34

Barresi v. Brown, President o f the Clarke County
Board o f Education, et al., 226 Ga. 456,_____

S.E. 2 d _____ (1970)...............................................  3
Bivins v. Board o f Public Education and

Orphanage for Bibb County, et al., No. 1926,
M.D. Ga. (Order filed Jan. 21, 1970)...................  16

Bivins v. Bibb County Board o f Education, 424 F.
2d 97 (5th Cir. 1970).........'....................................  16

Board o f Education v. Barnette, 319 U.S.
624 (1942)............  22,23,25,35,36,38-39,55

Bolling v. Sharpe, 347 U.S. 497 (1954)...................... 48
Bradley v. School Board of the City o f Richmond, 

Virginia, 345 F. 2d 310 (4th Cir. 1965)................. 4
Briggs v. Elliott, 132 F. Supp. 776 (E.D.S.C.

1955).........................................................................  4
Brown v. Board o f Education,

347 U.S. 483 (1954). . 3-6,14,20-22,26,28-29,35,43,56
Brown v. McNamara, 263 F. Supp. 686 

(D.N.J. 1967)......................................................  48,49
Cain v. Bowles, 4 F.R.D. 504 (D. Ore. 1945)........... 52
Colon v. Tompkins Square Neighbors, 294 F.

Supp. 134 (S.D.N.Y. 1968)..........................  21,33-34

in



TABLE OF AUTHORITIES—Continued

Page
Dixon v. District o f Columbia, 129 U.S.App.

D.C. 341, 394 F. 2d 966 (D.C. Cir. 1968).............  52
Dismuke v. United States, 297 U.S. 167 

(1936)........................................................................  52
Dobbins v. Los Angeles, 195 U.S. 223 

(1904)..............................................................  23,51-52
Ellis v. The Board o f Public Instruction of 

Orange County, Florida, 423 F. 2d 203 
(5th Cir. 1970).........................................................  15

Epperson v. Arkansas, 393 U.S. 97 (1968). . .. 22,28,39
Erie Railroad Company v. Tompkins, 304 U.S.

64 (1938)................................................................... 35
Fay v. Noia, 372 U.S. 391 (1963)...............................  35
Fulwood v. Clemmer, 111 U.S.App.D.C. 184,

295 F. 2d 171 (D.C. Cir. 1961).................................  49
Georgia, et al. v. Mitchell, et al., No. 265-70 

(D.D.C.), appeal pending, No. 24,423,
D.C. App..................................................................  14

Griswold v. Connecticut, 381 U.S. 479 
(1965).........................................................  22,36,48,49

Harper v. Virginia Board o f Elections, 383 U.S.
663 (1966).................................................................  50

Harrell v. Tobriner, 279 F. Supp. 22 
(D.D.C. 1967)........................................     48

Henry v. Clarksville Municipal Separate 
School District, 409 F. 2d 682 (5th Cir.
1969).........................................................................  15

Kwock Jan Fat v. White, 253 U.S. 454 (1920)............  52

iv



Loving v. Virginia, 388 U.S. 1 (1967).................... .... 30
McLaurin v. Oklahoma State Regents, 339 U.S.

637 (1950).................................................................  5
Meyer v. Nebraska, 262 U.S. 390 

(1923)...............................................  22,27-28,37,41,42
Missouri ex rel. Gaines v. Canada, 305 U.S.

337 (1938)................................................................. 4
Myers v. United States, 272 U.S. 52 (1926).............. 51
N.A.A.C.P. v. Alabama, 357 U.S. 449 (1958).... 36-37
Northcross v. Board o f Education o f The 

Memphis, Tennessee City Schools, 397 U.S.
232 (1970).........................      46

Pierce v. Society o f Sisters, 268 U.S.
510 (1925)....................................................... 22,37,41

Shelton v. Tucker, 364 U.S. 479 (1960)...............  22,36
Singleton v. Jackson Municipal Separate School 

Dist., et al., 419 F. 2d 1211 (5th Cir. 1969).......... 15
Social Security Board v. Nierotko, 327 U. S.

358 (1945)................................................................. 52
Sweatt v. Painter, 339 U.S. 629 (1950).......................  5
Taylor v. Leonard, 30 N.J. Super. 116, 103 A.

2d 632 (1954)............................................................ 33
Todd v. Joint Apprenticeship Committee, 223 F.

Supp. 12 (N.D.I11. 1963).........................................  49
Truax v. Raich, 239 U.S. 33 (1915)......................  21,34
Turner v. Fouche, 396 U.S. 346 (1970)......................  18

TABLE OF AUTHORITIES—Continued

Page

v



United States v. The State o f Georgia, et ah,
Civil Action No. 12,972, N.D.Ga. (Order
filed Dec. 17, 1969).................................................. 16

United States v. Greenwood Municipal School 
District, 406 F. 2d 1086 (5th Cir. 1969)................ 15

United States v. Indianola Municipal Separate 
School Dist., 410 F. 2d 626 (5th Cir. 1969).......... 15

United States v. Jefferson County Board of 
Education, 380 F. 2d 385 (5th Cir. 1967).............. 14

United States v. Walker, 109 U.S. 258 (1883).......... 35
Windsor v. McVeigh, 93 U.S. 274 (1876).................. 35
Yick Wo v. Hopkins, 118 U.S. 356 (1886)...........  23,51
Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952).................................................  50

Constitutional Provisions
U.S. Const. Art. IV, § 2, par. 1...............................  47
U.S. Const. Amend. 1.....................................  22,36,38
U.S. Const. Amend. V ...................................  22,47-49
U.S. Const. Amend. IX .................................. 47,49-50
U.S. Const. Amend. X ...................................  47,49-50
U.S. Const. Amend. XIV.........  3-5,26,29,42-43,47-48

Statutes
79 Stat. 911, 8 U.S.C. §§ 1151 et seq........................ 24
42 U.S.C. § 2000c(b).................................................... 44
42 U.S.C. § 2000c-6(a)................................................  44
42 U.S.C. § 2000d........................................................ 45

TABLE OF AUTHORITIES—Continued

Page

vi



TABLE OF AUTHORITIES—Continued

Miscellaneous
Page

1965 U.S. Code and Admin. News, pp. 3328-3354... 24
Alsop, “The Tragic Failure”, Newsweek,

Feb. 23, 1970...........................................................  6
Bickel, “Desegregation, Where Do We Go 

From Here?”, The New Republic, Feb. 7,
1970, p. 20......................................  32-33,40,42,46-47

Bickel, “The Supreme Court and the Idea of 
Progress”, Harper & Row (Feb. 1970)............... .. 43

Perry, “Racial Imbalance and the Fourteenth 
Amendment—Equal What?”, 52 A.B.A.
Journal 552 (1966)................................................... 43

Raspberry, “Concentration on Integration 
is Doing Little for Education”, The 
Washington Post, Fri., Feb. 20, 1970...................  6

The Atlanta Constitution, Vol. 103, No. 67 
(Wed. Sept. 2, 1970)................................................ 18

U.S. Commission on Civil Rights, “Racial 
Isolation in the Public Schools”, 1967 
Report......................................................... 6-10,53-54

U.S. Department of Health, Education and 
Welfare, “HEW NEWS”, Jan. 4, 1970..............  6

U.S. Department of Health, Education and 
Welfare, “Revised Statement of Policies for 
School Desegregation Plans Under Title VI 
of the Civil Rights Act of 1964” (March 
1966).................................................................... 11-12

U.S. Department of Health, Education and 
Welfare, “Revised Statement of Policies for 
School Desegregation Plans Under Title VI 
of the Civil Rights Act of 1964” (Dec. 1966, 
as amended for the school year 1967-68).............  12

Vll



U.S. Department of Health, Education and 
Welfare, “Policies on Elementary and 
Secondary School Compliance with Title VI 
of the Civil Rights Act of 1964” ......................... .. 12

TABLE OF AUTHORITIES—Continued
Page

viii



IN THE

Supreme Court of the United States
October Term, 1970

No. 420

CHARLES McDANIEL, et al.,
Petitioners,

-vs-

JOSEPH BARRESI, JR., et a l,
Respondents.

BRIEF OF THE STATE OF GEORGIA 
AS AMICUS CURIAE

INTEREST OF THE STATE OF GEORGIA
The State of Georgia has many and varied interests in 

the mental and physical development of its children, not 
the least of which is that they become productive mem­
bers of our multiracial, culturally variegated society. The 
cynic may doubt the truth of this assertion. The con­
cerned and knowledgeable observer will not. The impor­
tance to the State of Georgia of a continually improv­
ing rather than deteriorating program of public educa­
tion would seem self-evident. As we will show, the State’s 
ability to achieve this goal is in jeopardy.

1



2

QUESTIONS PRESENTED
1. Are attempts of the federal government to impose 

racial exclusions (i.e., quota, percentage or balance re­
quirements) upon pupils and teachers in Georgia’s pub­
lic schools authorized by the Constitution and laws of 
the United States?

2. Assuming arguendo that the answer to question 
one is in the affirmative, are attempts to coerce racially 
motivated exclusions nonetheless prohibited to the gov­
ernment in that they violate transcendental countervailing 
rights, privileges and immunities which the Constitution 
and laws of the United States secure to the children, par­
ents, teachers and public school districts of Georgia as 
well as to the State itself?

3. Assuming arguendo that the federal government 
is authorized by law to impose racial exclusions upon 
pupils and teachers in the public schools, may it engage 
in invidious sectional or geographic discrimination in its 
exercise of this power—coercing only those children, par­
ents and teachers who happen to reside in the Southern 
States?

STATEMENT
(1) Nature of the Case.

Presented for decision is a case involving a local board 
of education in Georgia which in response to the funds 
termination power of the United States Department of 
Health, Education and Welfare adopted racial ratios of 
black 20% to 40% and white 80% to 60% in all but 
two of the elementary schools within its jurisdiction. 
This goal was to be attained by the exclusion of both 
black and white pupils from the schools nearest their 
homes or of their choice, solely on the basis of their race



3

or color, and by assigning these pupils, again solely 
because of their race or color, to more distant schools— 
not of their choice. In the two excepted schools, the bal­
ance sought was 50% black and 50% white. It appears 
that these exceptions were made in response to the 
desire of citizens within the black community to main­
tain some degree of racial identity in the two schools.

The plaintiffs below (here respondents) are both black 
and white parents and children. Objecting to being ex­
cluded solely for racial reasons from the schools they 
desire to attend, they filed suit to enjoin implementation 
of the local school board’s plan. Although it is not, in 
our view of the case, material to the issues presented, we 
note that each of the pupils either walks or is bused to 
his (or her) school, depending upon its distance from 
his (or her) place of abode. The Supreme Court of Geor­
gia held that the racial exclusions were contrary to this 
Court’s ruling in Alexander v. Holmes County Board of 
Education, 396 U.S. 19 (1969), that “no person is to 
be effectively excluded from any school because of race 
or color”. See Barresi v. Brown, President of the Clarke
County Board of Education, et al,, 226 Ga. 456, ____
S.E.2d ____ (1970). As we will show, the Supreme
Court of Georgia was correct.
(2) Statement of Facts.

The precise “holding” of Brown v. Board of Education1 
was that State-enforced exclusion of black children from 
a public school pursuant to State laws either “requiring 
or permitting” segregation by race violated rights secured 
to such children by the Fourteenth Amendment to the 
Constitution. In the context of its express prohibition

x347 U.S. 483 (1954).



4

of State-enforced racial separation or segregation, there 
is no doubt but that implementation of the decision has 
been an unqualified success in those States generically 
described as “the South”. Despite strong emotional as 
well as intellectual opposition to Brown, the overwhelm­
ing majority of Southern school officials have long since 
come to accept the fact that State-enforced racial separa­
tion is dead. These officials recognize that black children 
have a personal, present and unqualified constitutional 
right to be neither excluded from a particular school 
because of their race nor required to attend a particular 
school because of their race.

In Georgia, as in other Southern states, most school 
districts sought to implement the newly defined “personal 
right” through adoption of “freedom of choice” plans. 
In essence, these plans gave each child’s parents the right 
to choose the school their child would attend. While this 
quite predictably resulted in most students electing to 
attend schools in which their own particular race was in 
the majority, it was generally thought that this normal 
ethnocentric phenomenon was in no way inconsistent with 
Brown. The existence of a truly free choice as to school 
assignment was ipso facto considered to negate the pres­
ence of State enforcement respecting the assignment. See 
e.g., Bradley v. School Board of the City of Richmond, 
Virginia, 345 F.2d 310, 313, 316-17 (4th Cir. 1965); 
Briggs v. Elliott, 132 F.Supp. 776 (E.D.S.C. 1955) [3 
judge]. Under this concept of Brown, it is a personal right 
which the Fourteenth Amendment protects. This view 
is thoroughly consistent, of course, with the repeated 
declarations of this Court that it is “the individual” who 
is entitled to equal protection of the laws. E.g., Missouri 
ex rel. Gaines v. Canada, 305 U.S. 337, 351 (1938);



5

Sweatt v. Painter, 339 U.S. 629, 635 (1950). As stated 
in McLaurin v. Oklahoma State Regents, 339 U.S. 637, 
641 (1950):

“State-imposed restrictions which produce such in­
equalities cannot be sustained.

It may be argued that appellant will be in no 
better position when these restrictions are removed, 
for he may still be set apart by his fellow students. 
This we think is irrelevant. There is a vast differ­
ence— a Constitutional difference— between restric­
tions imposed by the state which prohibit the in­
tellectual commingling of students, and the refusal 
of individuals to commingle where the state presents 
no such bar.” (Italics added)

But another view of Brown arose. This second view 
was one which construed the underlying philosophy of 
that decision not as the vindication of a personal right 
of black students not to be subjected by the State to 
racial segregation, but as a broad policy attack against 
the very fact of racial separation, whether resulting from 
personal choice, State compulsion or otherwise.2 It is this 
view of Brown which the federal government has so 
diligently sought to implement in Georgia and the various 
other Southern States—while ignoring the fact of racial 
separation elsewhere. For the South and the South alone, 
the effort has been one of achieving racial quotas or bal­
ance. If in fact and law this second view is the ultimate 
mandate of Brown, it can only be said that while federal 
officials may have achieved a certain degree of educa­

2The particular alchemy by which the former personal constitu­
tional “right” is converted into a personal constitutional “duty” 
under the Fourteenth Amendment has never been explained.



6

tional disaster in the South, implementation has been an 
abysmal failure nationally.3

The scope of the national failure to achieve, approach 
or even hold even with this second (and we think de­
based) view of Brown is well described by the govern­
ment s own statistical releases. While the level of racial 
integration in the public schools of Georgia and the 
other Southern States has been forced upwards, the 
national trend has for the most part been in exactly the 
opposite direction, i.e., towards increased racial separa­
tion. The most recent statistical information released by 
the United States Department of Health, Education and 
Welfare (January 4, 1970) shows that by the Fall of 
1968, the national level of racial separation in the public 
schools had risen to the point where only 23.4 percent 
of black pupils enrolled in the Nation’s public schools 
were attending schools with a predominantly white enroll­
ment, and further shows that fully 61 % of the country’s 
black pupils were enrolled in almost totally (95 to 100 
percent) black schools.4

Nor can this Nation-wide trend be said to be “newly 
discovered”. Discussing the great increase in racial segre­
gation in the public schools of 15 selected Northern 
cities5 between 1960 and 1965, the 1967 report of the

8The totality of the failure has been increasingly recognized by 
writers, both black and white, who have long been associated 
with the furtherance of Civil Rights. See e.g., Stewart Alsop, “The 
Tragic Failure”, Newsweek, Feb. 23, 1970; William Raspberry, 
“Concentration on Integration is Doing Little for Education”, 
The Washington Post, Friday, Feb. 20, 1970.
“See U. S. Department of Health, Education and Welfare “HEW 
NEWS”, Jan. 4, 1970.

^Cincinnati; Milwaukee; Pasadena; Philadelphia; Pittsburgh; In-



7

United States Commission on Civil Rights entitled 
“Racial Isolation in the Public Schools” noted at p. 8:

“Eighty-four percent of the total Negro increase in 
these 15 city school systems was absorbed in schools 
that are now 90-100 percent Negro, and 94 percent 
in schools more than 50 percent Negro. In Cin­
cinnati, Ohio, the Negro elementary school enroll­
ment doubled over the last 15 years, but the num­
ber of Negro children in majority-Negro schools 
almost tripled. In 1950, 7 of every 10 Negro ele­
mentary school children in Cincinnati attended ma­
jority-Negro schools. In 1965, nearly 9 of 10 did. 
In Oakland, Calif., almost half of the Negro ele­
mentary school children were in 90-100 percent 
Negro schools in 1965. Five years earlier, less than 
10 percent were. During the 5-year period, Negro 
elementary school enrollment increased by 4,100 
but the number of Negro students in 90-100 percent 
Negro schools increased by almost 8,000.”

The exact increases in percentages of black pupils attend­
ing almost all (90 to 100 percent) black schools and

dianapolis; Cleveland; Oakland; Detroit; Buffalo; San Francisco; 
Chester; Harrisburg; Springfield, Massachusetts; and New Haven.



8

predominantly black schools in the specified Northern 
cities were set forth by the Report as follows:

C ity Y e a r

90-100%
N egro
E n ro ll­
m en t

M ajo rity -
N eg ro
E n ro ll­
m en t Y e a r

90-100%
N egro
E n ro ll­
m en t

M ajo rity -
N eg ro
E n ro ll­
m en t

Cincinnati _ —1950 43.7 70.7 1965 49.4 88.0
Milwaukee .-1 9 5 0 51.2 66.8 1965 72.4 86.8
Pasadena _ -1 9 5 0 0.0 26.2 1965 0.0 71.4
Philadelphia -1950 63.2 84.8 1965 72.0 90.2
Pittsburgh __-1 9 5 0 30.4 51.0 1965 49.5 82.8
Indianapolis -1951 83.2 88.2 1965 70.5 84.2
Cleveland ...__1952 57.4 84.4 1962 82.3 94.6
Oakland _ -1 959 7.7 71.1 1965 48.7 83.2
Detroit _ .I960 66.9 91.1 1965 72.3 91.5
Buffalo ___ -1961 80.5 89.4 1965 77.0 88.7
San Francisco 1962 11.6 75.8 1965 21.1 72.3
Chester __ -1963 71.1 85.8 1965 77.9 89.1
Harrisburg _ 
Springfield,

-1963 58.1 82.7 1965 54.0 81.3

Mass. ... -1963 0.0 58.8 1965 15.4 71.9
New Haven -1963 22.5 71.0 1965 36.8 73.4

As for the other side of the racial polarization, the Re­
port showed that the bulk of the white pupils were being 
permitted to attend virtually all (90 to 100 percent) white 
schools. It showed the following percentages respecting 
enrollment of the white pupils in 90 to 100 percent white 
schools:
Cincinnati _________ 63.0%
Milwaukee _________ 86.3%
Pasadena __________ 82.1%
Philadelphia________ 57.7%
Pittsburgh____ ________62.3 %
Indianapolis________80.7%
Cleveland________  80.2%
Oakland ___________ 50.2%

Detroit ____________ 65.0%
Buffalo __________— 81.1%
San Francisco ___ — 65.1 %
Chester ________ -3 7 .9 %
Harrisburg ______ -5 6 .2 %
Springfield, Mass__ __82.8%
New Haven - ___ -4 7 .1 %

The pattern of increasing racial separation, isolation



9

or segregation within these particular Northern cities was 
found by the United States Commission on Civil Rights 
to be typical of Northern school districts. The Report 
pointed out that by the 1965-66 school year fully 89.2 
percent of Chicago’s black students were attending vir­
tually all (90 to 100 percent) black schools while at the 
same time 88.8 percent of the city’s white pupils were 
being permitted to attend virtually all (90 to 100 per­
cent) white schools. Statistics for some of the other 
Northern cities, as set forth at pp. 4-5 of the Commis­
sion’s report, showed the following situation by 1965:

City

% of Negro Pupils in 90-100% Negro Schools

% of Negro Pupils Majority Negro Schools

% of White Pupils in 90-100% White Schools

Richmond, Calif. ______ ___  32.9 82.9 90.2
San Diego, Calif. _ ___  13.9 73.3 88.7
Denver, Colo. .. _ _ _____  29.4 75.2 95.5
Hartford, Conn. ____ ___  9.4 73.8 66.2
New Haven, C onn.____ ___„ 36.8 73.4 47.1
East St. Louis, 111. .. _ . . ___  80.4 92.4 68.6
Fort Wayne, Ind. _ . . ___  60.8 82.9 87.7
Gary, Ind. ____________ ___  89.9 94.8 75.9
Wichita, Kans.__ ___  63.5 89.1 94.8
Baltimore, Md. _______ ___  84.2 92.3 83.8
Boston, Mass. _______ ___  35.4 79.5 76.5
Flint, M ich.___ ______ ___  67.9 85.9 80.0
Minneapolis, Minn. ____ ____ None 39.2 84.9
Kansas City, Mo. __  - ___  69.1 85.5 65.2
St. Louis, Mo. ____________  90.9 85.5 65.2
Omaha, Neb. _ ___ _ ____  47.7 81.1 89.0
Newark, N. J. ______ ___  51.3 90.3 37.1
Camden, N. J . __  ____ ___  37.0 90.4 62.4
Albany, N. Y. ______ _______ None 74.0 66.5
New York, N. Y_______ _ _  20.7 55.5 56.8
Columbus, Ohio ____  ____  34.3 80.8 77.0
Tulsa, Okla___________ ___  90.7 98.7 98.8



10

C ity
(C o n t’d .)

%  o f  N eg ro  
P u p ils  in  
90-100%  
N egro  

Schools 
(C o n t’d .)

%  o f N eg ro  
Pup ils  

M ajo rity  
N eg ro  

Schools 
(C o n t’d .)

%  o f  W hite
P up ils  in  
90-100%  

W hite  
Schools 
(C o n t’d .)

Portland, O re ._____ -  46.5 59.2 92.0
Providence, R. I . ___ -  14.6 55.5 63.3
Seattle, W ash._____ 9.9 60.4 89.8
Washington, D. C .__ __ 90.4 99.3 34.3

The Report concluded at p. 6:
“Nor does the pattern necessarily vary according to 
the proportion of Negroes enrolled in the school 
system. For example, Negroes are 26 percent of the 
elementary school enrollment in Milwaukee, Wis., 
and almost 60 percent of the enrollment in Phila­
delphia, Pa., yet in both cities almost three of every 
four Negro children attend nearly all-Negro schools. 
Negroes are 19 percent of the elementary school 
enrollment in Omaha, Nebr., and almost 70 per­
cent of the enrollment in Chester, Pa., yet in both 
cities at least 80 percent of the Negro children are 
enrolled in majority-Negro schools.”

Noting that during the time covered by its study (i.e., 
primarily before 1966 and the start of federal official­
dom’s intensive efforts to impose racial quota and racial 
balance requirements upon Southern school districts) the 
level of racial separation was only slightly higher in the 
South, the Commission concluded at p. 7 of its Report:

“The extent of racial isolation in Northern school 
systems does not differ markedly from that in the 
South.”

Due to the lop-sided efforts of the Justice Department 
and HEW, the Commission’s conclusion of substantial 
similarity between Northern and Southern school systems 
has become wholly inaccurate. While the general dearth 
of black pupils in many Northern systems may tend to 
give misleading statewide figures, examination of rec­



11

ords of the federal government respecting those Northern 
school systems which do have any appreciable number 
of black students clearly demonstrates that these systems 
have far higher levels of racial separation, isolation and 
segregation than federal officials have ever been willing 
to tolerate in Georgia and other States in the South.

Intensification of the disparity of treatment between 
Northern and Southern school systems respecting racial 
quota and racial balance requirements began at least as 
early as 1966. In that year, HEW, apparently unhappy 
over the way in which black parents and pupils in the 
South were exercising their “freedom of choice”, decided 
to limit the use of such plans. It decided that henceforth 
these plans would be acceptable only if the choices were 
exercised in the way in which HEW officials thought they 
should be exercised. The March 1966 “Guidelines for 
School Desegregation” commenced HEW’s march to­
wards racial quota or balance requirements as a requisite 
for continued federal financial assistance. The guidelines 
announced:

“The single most substantial indication as to 
whether a free choice plan is actually working to 
eliminate the dual school structure is the extent to 
which Negro or other minority group students have 
in fact transferred from segregated schools. . . . 
Where a free choice plan results in little or no actual 
desegregation, or where, having already produced 
some degree of desegregation, it does not result in 
substantial progress, there is reason to believe that 
the plan is not operating effectively and may not be 
an appropriate or acceptable method of meeting con­
stitutional or statutory requirements.”6

6See U. S. Department of HEW, “Revised Statement of Policies 
for School Desegregation Plans Under Title VI of the Civil Rights 
Act of 1964”, (March 1966).



12

HEW indicated that it would be satisfied with the “prog­
ress” of local school systems only if:

(1) school districts which had at least 8 or 9 percent 
of their pupils transfer under such a plan during 
the 1965-66 school year at least doubled the per­
centage during the 1966-67 school year,

(2) school districts which had only 4 or 5 percent of 
their pupils transfer under such plans during the 
1965-66 school year at least tripled the percent­
age during the 1966-67 school year, and

(3) school districts having a lower percentage of 
transfers achieved a proportionately greater rate 
of increase for the 1966-67 school year.* & 7

The “guidelines” went on to say that if a “freedom of 
choice” plan did not produce results satisfactory to HEW 
(i.e., sufficient racial balance) it might “require the 
school system to adopt a different type of desegregation 
plan”. The racial quota requirements of the March 1966 
guidelines were continued in the December 1966 guide­
lines for the 1967-68 school year.8

In March 1968, the United States Department of 
Health, Education and Welfare published its “Policies 
on Elementary and Secondary School Compliance with 
Title VI of the Civil Rights Act of 1964”. There HEW 
announced that in order to continue to receive federal 
financial assistance, school districts (meaning, of course,

7Ibid.

&U. S. Dept, of HEW, “Revised Statement of Policies for School
Desegregation Plans Under Title VI of the Civil Rights Act of
1964”, (Dec. 1966, as amended for the School Year 1967-68).



13

Southern school districts only) would have to “bring 
about an integrated unitary school system . . .  so that 
there are no Negro or other minority group schools and 
no white schools. . . .” The deadline was the 1968-69 
school year or, at the latest, the 1969-70 school year. 
Nor was there any doubt as to the fact that under the lexi­
con of HEW “integrated unitary school system” meant 
racial balance or at least a reasonable likeness thereof. 
According to HEW, Southern school systems were to be 
expected to go beyond freedom of choice and to accept 
the pairing of schools, closing of schools, reassignment of 
pupils, and the redrafting of geographic attendance zones 
to maximize affirmative integration (or, in other words, 
racial balance).

While HEW was in this manner compelling local 
school systems in Georgia and other Southern States to 
accept racial quotas and balance requirements as a con­
dition of continued federal financial assistance, the De­
partment of Justice occupied itself by seeking judicial 
sanction for its “special treatment” for Southern school 
systems and pupils. Between enactment of the Civil 
Rights Act of 1964 and January 1, 1970, the Justice 
Department initiated or otherwise participated in almost 
200 legal actions to compel integration in at least 400 
local school districts within the 11 States of the South.9 
Twenty-six of these suits (involving approximately 107 
local school systems) were filed within the State of Geor­

9Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, 
North Carolina, South Carolina, Tennessee, Texas and Virginia. 
Two of the suits were filed on a statewide basis. One, in Alabama, 
affected 100 local school districts while the other, against the 
State of Georgia, affected 81 local school districts. Other cases 
similarly have involved a multiplicity of school district defendants.



14

gia alone. In all of the remaining 39 States of the Union, 
the Department of Justice has seen fit (as of January 1, 
1970) to file or otherwise participate in actions against 
only 8 local school districts.10

The Justice Department’s initial success in converting 
the personal constitutional right of a pupil not to be ex­
cluded from a school or required to attend a school 
solely because of his race into a duty to accept exclusion 
or assignment for precisely this reason (i.e., his race) 
was achieved in United States v. Jefferson County Board 
of Education, 380 F.2d 385 (5th Cir. 1967) [en banc]. 
There, for the first time, the Justice Department per­
suaded a majority of the Court of Appeals for the Fifth 
Circuit, at least insofar as Southern schools and pupils 
were concerned, to abandon the concept of Brown as a 
protection of personal rights of the governed from gov­
ernmental interference. The new rule was one of Federal 
power and individual duty. A majority of the Court of 
Appeals for this Circuit even went so far as to deny that 
freedom of individual choice was a valid constitutional 
goal! By dicta, it approved the percentage guidelines or 
racial quotas established by HEW. As the dissenting opin­
ions so correctly foresaw and so forcefully pointed out, 
Jefferson’s disclaimer of any “racial balance” requirement 
was naught but window dressing. The untimely (al­
though we hope temporary) end at the hands of Jefferson 
of those personal rights and freedoms born of Brown is 
now a matter of public record and common knowledge. 
Within two years after Jefferson, the Fifth Circuit was 
saying:
“ “Defendants’ Answers to Certain of the Mitchell Interrogatories”, 
filed in Georgia, et al. v. Mitchell, et al., Civil Action No. 265-70 
(D.D.C.), appeal pending, U.S. Court of Appeals for the District 
of Columbia Circuit, No. 24423.



15

. .  we are firm that a point has been reached in the 
process of school desegregation ‘where it is not the 
spirit, but the bodies which count’.” United States 
v. Indianola Municipal Separate School Dist., 410 
F.2d 626, 631 (5th Cir. 1969).
“The transformation to a unitary system will not 
come to pass until the board has balanced the fac­
ulty of each school. . . .” United States v. Green­
wood Municipal School District, 406 F.2d 1086, 
1094 (5th Cir. 1969).
“If there are still all-Negro schools, or only a small 
fraction of Negroes enrolled in white schools, or 
no substantial integration of faculties and school 
activities, then, as a matter of law, the existing plan 
fails constitutional standards. . . . The board should 
consider ..  . closing all-Negro schools, consolidating 
and pairing schools, rotating principals, and taking 
other measures. . . .” Henry v. Clarksdale Municipal 
Separate School District, 409 F.2d 682, 689-90 (5th 
Cir. 1969).

As a result of this “southern strategy”, the imposition of 
racial quota and racial balance requirements has with 
but a few exceptions11 become the pattern within the 
Fifth Circuit. Singleton, et al. v. Jackson Municipal Sep­
arate School District, et ah, 419 F.2d 1211 (5th Cir. 
1969), ordered a mid-term reassignment of teachers so 
that as of February 1, 1970, the ratio of black to white 
teachers in each school would be the same as existed 
within the entire school system. It was further ordered 
that student bodies be merged “into unitary systems” by

11In Ellis v. The Board of Public Instruction of Orange County, 
Florida, 423 F.2d 203, 208, 213-16 (5th Cir. 1970), a neigh­
borhood school attendance system was upheld notwithstanding the 
existence of all-Negro schools in a predominantly white school 
system..



the Fall of 1970. A district court which held on January 
21, 1970, that nothing in the Constitution required racial 
balance of pupils within the public schools was sum­
marily reversed by the Fifth Circuit on February 5, 
1970.12 As a result of litigation instituted by the federal 
government directly against the State of Georgia and the 
State Board of Education, all State school funds were 
ordered to be withheld from some 81 local school systems 
within Georgia unless such school systems agreed to the 
implementation of judicially specified racial quotas. See 
United States v. The State of Georgia, et al., Civil Action 
No. 12972, N.D. Ga. (Order filed Dec. 17, 1969).

The demoralizing disruption of the educational process 
in Georgia and in the other Southern States subjected to 
the discriminatory actions of these federal officials has 
long been obvious to all who can see and are willing to 
see. Massive transfers of teachers and pupils have been 
and are being required without the slightest regard for 
established teacher-pupil relationships, without the slight­
est regard for the location of schools and distances to be 
traveled, without the slightest regard for curricula needs 
and desires, and without the slightest regard for the 
individual pupil or teacher and his personal friendships 
and attachments. Is it at all surprising that about 40% 
of the State’s county and municipal school superinten­
dents have departed from their offices over the past two 
years? Does this loss of administrative experience some­
how further equal educational opportunity?

Nor can the damage to public education in the South
12Bivins, et al. v. Board of Public Education and Orphanage for 
Bibb County, et al., No. 1926 (M.D. Ga., Order filed Jan. 21, 
1970), rev’d. sub nom, Bivins v. Bibb County Board of Educa­
tion, 424 F.2d 97 (5th Cir. 1970).



17

be disregarded upon the highly questionable theory that 
it is only transitory wreckage during an “adjustment pe­
riod”. How does one calculate the loss of a single com­
petent teacher who forever departs from his chosen pro­
fession rather than accept transfer from a school near 
his residence to a more distant facility? The number of 
experienced teachers who have departed from the school 
systems in which they had been teaching is already sub­
stantial. Evidence indicates that an even larger number 
will depart during the current school year. Other teach­
ers, forced by economic circumstances to remain in the 
school system, become disheartened upon finding them­
selves not only in a new school, but forced to teach out­
side the area of their particular competency and choice. 
Overlooked in the shuffle to achieve racial balance of 
faculty in each school has been the detail that no cor­
relation whatsoever is apt to exist between the system- 
wide racial composition of faculty and the black-white 
ratio for French teachers, science teachers, math teach­
ers, remedial instruction teachers, etc.

Perhaps one of the most lasting of all injuries to public 
education, an injury which may indeed prove fatal to 
public education in some areas of Georgia, is the change 
of attitude of those who ultimately foot the bill for its 
continuance. Along with parents and pupils, the general 
public, regardless of race, has become quite disenchanted 
with a system of public education which takes funds 
which could be utilized for direct educational expendi­
tures, as for books and teachers’ salaries, and requires 
them instead to be expended to transport children to more 
distant schools in order to receive racially balanced in­
struction from a newly transferred teacher who very 
likely is teaching an unfamiliar subject and thoroughly



18

unhappy about her transfer in the first place. Nor does 
the general citizenry appreciate the social value of clos­
ing perfectly adequate (not to mention expensive) school 
facilities in one place in order to spend hundreds of thou­
sands of dollars more for the construction of new facili­
ties elsewhere just because someone thinks (usually er­
roneously) that more racial integration will result.13 The 
dangerous decline of public support for public education 
renders the defeat of proposed school bond issues at the 
polls more likely and can cause intense opposition to any 
increase in taxation for public education. Another omin­
ous aspect of public disenchantment with public educa­
tion is seen in the sharp increase of actual withdrawal 
from the public schools. In Taliaferro County, Georgia, 
for example, the government’s efforts resulted in each 
and every white teacher and each and every white pupil 
withdrawing from the public school system of that county 
in favor of either the newly created private schools within 
the county or public schools elsewhere. See Turner v. 
Fouche, 396 U.S. 346, 349 (1970). Preliminary Fall 
1970 enrollment figures for the Atlanta public schools 
indicate that some 6,000 pupils have withdrawn 
from this school system, and similar figures for Bibb 
County (Macon), Georgia indicate that that system has 
lost 4,000 students. The Atlanta Constitution, Vol. 103, 
No. 67 (Wed., Sept. 2, 1970). Particularly ominous is 
the fact that it is generally the children of middle and up­

13When, due to the government’s racial balance pressures, the 
Fulton County (Georgia) school system closed the all-black Eva 
Thomas school in order to transfer its pupils to more distant 
predominantly white schools, a massive sit-in by black students 
developed. It ended when the Eva Thomas school was at least 
temporarily reopened with judicial approval. Then too, people 
often vote with their feet.



19

wards economic and social backgrounds who first de­
part. It is this segment of society which traditionally has 
been the pillar of local moral and financial support for 
public education.

Needless to say, the wreckage which thoughtless fed­
eral officials have inflicted upon public education in Geor­
gia has caused incalculable injury to the State itself as 
well as to its citizenry. Hundreds of thousands if not mil­
lions of State supplied dollars have been lost through the 
pressured closing of adequate school facilities. The les­
sening of Georgia’s ability to provide a sound program 
of public education for its youth, in addition to irrepar­
able injury to those pupils who are unable to afford ade­
quate private instruction, adversely affects the State’s 
competitive position respecting the areas in favor of 
which federal officials discriminate. Other things being 
equal, industry will prefer to expand to those states which 
have not had their educational systems dismantled by the 
government.

Yet as destructive of public education as racial quotas 
and balance requirements are, as unsatisfactory as they 
have proven to be to reduce rather than increase racial 
polarization and animosity, we reluctantly could ac­
cept this punishment if it were to be inflicted equally 
upon all sections of the Nation—North as well as South. 
As of now this most demonstrably has not been the 
case. Nor will it ever become the case if this Court does 
not take action to end the existing disparity of treatment. 
The most recent statistics available from the United States 
Department of Health, Education and Welfare respect­
ing the high but still increasing level of racial segregation 
in Northern school systems well illustrate that although 
the War Between the States ostensibly ended over 100



20

years ago, there continues to be one set of “guidelines” 
for the South and quite another for the rest of the Nation 
—one rule for the conquerer and one for the conquered. 
While we doubt that anyone disputes the national scope 
of racial separation in public education, we have set 
forth specific examples, taken from HEW’s most recent 
statistics, in our appendix to this brief. We respectfully 
refer the Court to the same, thinking that it is worth 
looking at these few examples of the inordinately high 
levels of apartheid which have been achieved in Northern 
school systems without any noticeable interference by the 
same federal officials who have been so active in the 
derogation of meaningful public education in so many 
areas of Georgia and the other Southern states.

SUMMARY OF ARGUMENT
Brown v. Board of Education, 347 U.S. 483 (1954), 

held that a black child cannot be excluded from one 
school and required to attend another school solely be­
cause of his race. All too many governmental officials 
have misconstrued Brown to require that black and white 
children must be excluded from one school and required 
to attend another solely because of their race (i.e., to 
meet racial quota or balance goals).

The situation might be likened to the invalidating of 
laws requiring black citizens to sit in the rear of a bus. 
A great many governmental officials are in the position of 
insisting that the decision requires black and white pas­
sengers to be seated according to a percentage or quota 
system so as to enforce a uniform racial distribution 
throughout the bus. We object to the government’s con­
version of a personal right into a personal duty just as



21

we would object to its equating a citizen’s right of re­
ligious freedom with a duty to go to church.

The evil is magnified when obeisance to a particular 
dogma is demanded only of those citizens of the United 
States who happen to reside in the South.

While we think that the nature of our argument causes 
attempts to summarize it almost inevitably to result in 
oversimplification, we would state its principal thrust as 
follows: Racial quota, percentage or balance require­
ments are among the most obvious of racial exclusions. 
An “at least” for one race is a “not more than” for the 
others. Quota and percentage requirements based upon 
race are necessarily “a guaranty of inequality of treat­
ment of eligible ‘persons’ ”, Banks v. Housing Authority, 
120 Cal.2d 1, 260 P.2d 668, 673-74 (1953), and have 
been uniformly condemned by the courts. See, e.g. Truax 
v. Raich, 239 U.S. 33, 42-43 (1915); Colon v, Tomp­
kins Square Neighbors, Inc., 294 F.Supp. 134, 139 
(S.D.N.Y. 1968).

In the field of public education, we read Brown, and 
more recently, Alexander v. Holmes County Board of 
Education, 396 U.S. 19, 20 (1969), as prohibiting State- 
imposed racial exclusions absolutely and without regard 
to their form. But whether or not we are correct in this 
view, and whether or not the latter case meant what it 
said and said what it meant when it defined the consti­
tutional requisite as a school system:

“within which no person is to be effectively ex­
cluded from any school because of race or color”,

we think that constitutional analysis, in the light of many 
other of this Court’s past decisions, impels the conclusion 
that racial quota, percentage or balance requirements are



22

as much at war with the Constitution as they are with 
human dignity and those basic moral foundations upon 
which we hope our Nation rests. To start with, we think 
that the federal government lacks any power whatsoever 
to establish racial quotas for children and teachers in the 
public schools. This sort of activity simply is not a means 
which can be said to be reasonably related to the further­
ance of any legitimate governmental end or purpose. As 
we show in our argument, the activities in question ac­
tually negate rather than further the legitimate govern­
mental goal (recognized in Brown) of equal educational 
opportunity. In some instances the racial exclusions 
coerced by federal officials actually serve to guarantee 
non-education for the poor.

Moreover, even were it to be assumed, arguendo, that 
racial exclusions in the form of quota and balance re­
quirements did reasonably relate to furtherance of the 
legitimate governmental end of equal educational oppor­
tunity, such exclusions are nonetheless prohibited by the 
Constitution because they are an oversweep in remedy, 
see e.g. Shelton v. Tucker, 364 U.S. 479, 488 (1960); 
Griswold v. Connecticut, 381 U.S. 479, 485 (1965). 
They violate transcendental countervailing rights, privi­
leges and immunities secured to parents, pupils and 
teachers by the First and Fifth Amendments. The rights 
in question have been well defined by this Court in such 
cases as Board of Education v. Barnette, 319 U.S. 624, 
637, 640-41 (1942); Pierce v. Society of Sisters, 268 
U.S. 510, 534-35 (1925); and Meyer v. Nebraska, 262 
U.S. 390, 399-403 (1923); as well as again more re­
cently in Epperson v. Arkansas, 393 U.S. 97, 105-106 
(1968).

We agree that State-compelled racial separation is



23

dead. We do not think, however, that the corpse should 
be replaced with a procrustean bed of uniform racial 
balance, which in many areas already threatens public 
education with loss of vitality if not of life. Other options 
are available. The ability of local school systems to inno­
vate and experiment ought not to be foreclosed in favor 
of the same moribund uniformity of educational doctrine 
(this time it is racial balance) which this Court con­
demned in Board of Education v. Barnette, 319 U.S. 624, 
640-41 (1942).

Finally, in the event the Court disagrees with our view 
that racial exclusions are prohibited by the Constitution 
regardless of their form or purpose, we urge it to ter­
minate the invidious sectional discrimination which has 
until now permeated federal enforcement. Surely regional 
bigotry is as offensive as racial bigotry. How long is the 
“conquered province” approach to continue? The existing 
situation, aptly termed a “monumental hypocrisy” by 
Senator Ribicoff of Connecticut, is well documented by 
the government’s own records, reports and statistical re­
leases—to which we have referred in our fact statement. 
It is a national scandal for which judicial correction has 
long been overdue. There can be no such thing as true 
constitutional government in the United States if the laws 
of the land mean one thing in Georgia and another in 
Ohio. If children and teachers must be prodded about to 
achieve racial balance in Charlotte, North Carolina or 
Athens, Georgia, what moral or constitutional justifica­
tion could possibly exist to ignore the situation in Cleve­
land, Chicago, and New York? This Court has not hesi­
tated to strike far lesser discriminations in the past. E.g. 
Tick Wo v. Hopkins, 118 U.S. 356, 373 (1886); Dob­
bins v. Los Angeles, 195 U.S. 223, 240 (1904). We im-



24

plore the Court to point out once again that there is but 
one Constitution for all citizens and that children who 
happen to reside in Georgia also are entitled to its pro­
tection.

ARGUMENT
1. GOVERNMENTAL ATTEMPTS TO IMPOSE 

RACIAL EXCLUSIONS (i.e. QUOTA, PERCENT­
AGE, OR BALANCE REQUIREMENTS) UPON 
PUPILS AND TEACHERS IN GEORGIA’S PUB­
LIC SCHOOLS ARE UNAUTHORIZED BY THE 
CONSTITUTION AND LAWS OF THE UNITED 
STATES IN THE FIRST INSTANCE, BUT IN 
ANY EVENT ARE PROHIBITED IN THAT 
THEY VIOLATE TRANSCENDENTAL RIGHTS 
SECURED TO CHILDREN, PARENTS, TEACH­
ERS AND THE STATE ITSELF UNDER SAID 
CONSTITUTION AND LAWS.

Persons concerned with human dignity have almost 
universally looked upon quota or percentage require­
ments based upon race with revulsion. The unsavory 
practice of some colleges of establishing quotas for the 
admission of certain religious minorities, the subject of 
heated debate in the ’30s and ’40s, is for the most part 
but an unpleasant memory today. More recently, the 
inherently arbitrary and discriminatory nature of ethnic 
and racial quotas has led to drastic revision of our Na­
tional Immigration Laws so as to eliminate their con­
sideration in determining who shall be admitted into the 
country. See, 79 Stat. 911, 8 U.S.C. §§ 1151 et seq; 
1965 U. S. Code and Admin. News, pp. 3328-3354. 
Needless to say, it matters not whether the quota or



25

percentage is cast in terms of “at least” or “not more 
than”. One quite necessarily includes the other.14

We think it obvious that the question of whether these 
roundly condemned racial quotas or percentages can be 
constitutionally imposed by governmental authority in the 
field of public education requires two related yet dif­
ferent inquiries. Inasmuch as the federal government and 
its officers are possessed of but limited powers under our 
federal system, the first inquiry must be whether under 
the Constitution and laws of the United States the federal 
government legally is empowered to take any action at all 
respecting racial quota or percentage exclusions in the 
public schools. Then, assuming that the federal govern­
ment does have power to act in the matter, we must look 
to see whether there exist limitations upon its exercise 
by way of transcendental countervailing rights, privileges 
or immunities secured to parents, pupils and teachers 
under the Constitution and laws of the United States. In 
a somewhat analogous situation involving a compulsory 
salute to the flag,15 this Court explained in Board of Edu­
cation v. Barnette, 319 U.S. 624, 635 (1942) :

“It is not necessary to inquire whether nonconform­
ists beliefs will exempt from the duty to salute unless 
we first find power to make the salute a legal duty.”

14An “at least” for one race is a “not more than” for the other. 
Hence a racial quota, percentage, number or balance requirement 
is one of the clearest possible forms of racial exclusion. It also is 
rather important to note that the race which is the majority varies 
from school district to school district.

15Here the federal government seeks to compel school assign­
ments based wholly on race in order to achieve racial balance or 
quotas.



26

(a) The government of the United States is without 
legal authority to impose racial exclusions by coercing 
school attendance in such manner as to achieve any 
particular balance, quota, number or percentage re­
quirement for a given race in a given school.
It must be emphasized that we do not attack the 

holding of Brown that State-enforced segregation ac­
cording to race is violative of the Fourteenth Amend­
ment. To the extent that it is a vindication of the 
present and unqualified constitutional right of a pupil to 
be neither excluded from nor forced to attend any par­
ticular school solely because of his race, we indeed insist 
upon Brown. It is exactly this right which the federal gov­
ernment denies. The situation may be likened to the in­
validating of a law requiring a black citizen to sit in the 
rear of a bus. We do not in the least object to the sub­
stitution of a personal right and freedom (to sit any­
where) in place of his former duty and obligation (to sit 
in the rear). To the contrary, we insist upon this per­
sonal right and freedom. What we object to is the bus 
conductor seizing the body of any black citizen who 
happens to choose a seat in the rear and dragging him 
forward against his will to compel him to sit beside some­
one just because the someone is white. We strenuously 
object to this conversion of the black citizen’s newly 
acquired constitutional right and freedom into a govern- 
mentally imposed duty.

In attempting to fathom the claimed legal basis (if 
any) for any governmental official’s self-asserted power 
to deny individual freedom and liberty to both black 
and white pupils and teachers respecting school assign­
ment (apparently upon a “democracy doesn’t work” 
theory) and substitute in its place a duty on the part of 
individuals of both races to submit to such racial quota,



27

percentage, or number requirements as the federal official 
may from time to time deem appropriate, it would seem 
that the approach sanctioned by this Court is to define 
first the governmental purpose or objective to be served, 
which must itself be legitimate, and then, in light of this 
purpose or objective, to examine the means to see if 
they are appropriate and reasonably related to attainment 
of the goal. Particularly is this so where as here the 
selected means constitutes an obvious deprivation of in­
dividual liberty. In a similar setting of attempted govern­
mental restraint upon parental rights and liberties re­
specting their children’s education, Meyer v. Nebraska, 
262 U.S. 390, 399-400 (1923), this Court explained:

“The established doctrine is that this liberty may 
not be interfered with, under the guise of protecting 
the public interest, by legislative action which is 
arbitrary or without reasonable relation to some pur­
pose within the competency of the State to effect.”

In Meyer, the governmental purpose had been defined as 
the desire for unity and the development of a more 
homogeneous people who would be imbued with Amer­
ican ideals. To this end Nebraska adopted as its means 
a statute prohibiting the teaching of a foreign language 
to any child prior to his completion of the eighth grade 
[the thought being that this would provide a common 
cultural base by making English the mother tongue of 
all]. While the Court agreed that it might be highly 
advantageous if everyone had a ready understanding of 
our ordinary speech, it pointed out in no uncertain terms 
that even this presumably valid legislative end did not 
justify a means which resulted in the deprivation of per­
sonal freedom. It rejected the means chosen by Nebraska. 
At 262 U.S. 403, the Court said:



28

“No emergency has arisen which renders knowledge 
by a child of some language other than English so 
clearly harmful as to justify its inhibition with the 
consequent infringement of rights long freely en­
joyed. We are constrained to conclude that the stat­
ute as applied is arbitrary and without reasonable 
relation to any end within the competency of the 
State.”

The Meyer principle of rejecting undue restrictions upon 
the liberty of teachers and pupils was quite recently re­
affirmed in Epperson v. Arkansas, 393 U.S. 97, 105 
(1968).

Looking first to what valid governmental purpose or 
objective racial quota requirements are supposed to serve, 
we obviously must start out by rejecting such cant as 
“necessity of dismantling the dual school system” and the 
acceptability of desegregation plans only if “they work”. 
Such semantical shibboleths, aside from the fact that they 
obfuscate rather than clarify, utterly fail to answer “why” 
and hence, like the terms “desegregation” and “inte­
gration” themselves, are really concerned only with the 
“means”. While they sometimes are, they really ought 
not to be confused with (much less equated with) the 
ultimate governmental purpose or objective to be served.

In defining just what the legitimate governmental goal 
is, it is perhaps best to return to the taproot of the entire 
question, Brown v. Board of Education, 347 U.S. 483 
(1954). In speaking of the inherent inequality of edu­
cational opportunity when students are compelled by law 
to attend racially segregated schools, it appears to be 
quite clear that this Court viewed the primary vice of 
such legally-enforced apartheid to be the psychological 
effect upon the hearts and minds of black pupils. The 
Court said at 347 U.S. 494:



29

“To separate them from others of similar age and 
qualifications solely because of their race generates 
a feeling of inferiority as to their status in the com­
munity that may affect their hearts and minds in a 
way unlikely ever to be undone. The effect of this 
separation on their educational opportunities was 
well stated by a finding in the Kansas case by a 
court which nevertheless felt compelled to rule 
against the Negro plaintiffs:

‘Segregation of white and colored children in 
public schools has a detrimental effect upon the 
colored children. The impact is greater when it has 
the sanction of the law; for the policy of separating 
the races is usually interpreted as denoting the in­
feriority of the negro group. A sense of inferiority 
affects the motivation of a child to learn. Segrega­
tion with the sanction of law therefore, has a ten­
dency to [retard] the educational and mental de­
velopment of negro children and to deprive them 
of some of the benefits they would receive in a 
racial [ly] integrated school system.’ Whatever may 
have been the extent of psychological knowledge at 
the time of Plessy v. Ferguson, this finding is amply 
supported by modern authority.”

The rationale of Brown, in other words, was that 
State-compelled segregation according to race engendered 
feelings of inferiority in the black student which pre­
cluded the possibility of “equal educational opportunity”. 
It is, in other words, “equal educational opportunity” 
which is the right protected by the Fourteenth Amend­
ment. It is the protection or furtherance of this right 
which is ipso facto the legitimate goal or purpose of the 
Federal government. Subsequent decisions of the Court 
have continued to demonstrate that in protecting this 
personal right it is the harmful effect of State compul­
sion (and not the consequences of individual freedom



30

of association) which is the proper object of govern­
mental attack. In Loving v. Virginia, 388 U.S. 1, 10 
(1967), it was said:

“The clear and central purpose of the Fourteenth 
Amendment was to eliminate all official state sources 
of invidious racial discrimination in the States.” 
(Italics added)

Similarly, in one of its most recent decisions concerning 
school desegregation, the Court again stated the matter 
in terms of State-enforced racial separation when in 
Alexander v. Holmes County Board of Education, 396 
U.S. 19, 20 (1969), it referred to the termination of a 
dual school system and coming into being of a unitary 
system as the point where the system is one:

“within which no person is to be effectively excluded 
from any school because of race or color.”

We do not dispute the fact that racial quota, percent­
age and balance requirements constitute a means of 
eliminating this constitutionally impermissible barrier 
(State-compelled segregation) to the legitimate govern­
mental goal of equal educational opportunity. But the 
test is not whether the means removes a barrier to the 
end. It is achievement of the end itself to which the 
means must be appropriate and reasonably related. A 
means which merely supplants the old impediment with 
a new one does not necessarily bring the goal closer. 
The precise question to be answered is whether the racial 
exclusions currently coerced by governmental officials (in 
the form of racial quota, percentage or balance require­
ments) are appropriate and reasonably related to the 
legitimate governmental goal of “equal educational op­
portunity”.

In answering this question, it is perhaps appropriate



31

that we first pause to consider just what “equal educa­
tional opportunity” is. A simplistic answer, of course, 
is that each and every child, regardless of background 
and desires, regardless of whether he is mentally retarded 
or a child prodigy, must receive exactly the same educa­
tion. Yet we doubt that anyone in this or any related case 
will argue in favor of this equality of input and devil 
take the hindmost approach to public education. More 
likely we will find a rather general agreement that the 
ultimate goal of public education is to make available 
to each child (a highly individual and complex being) 
that variety and degree of learning which he needs, de­
sires, and is capable of absorbing. Looking at “equal edu­
cational opportunity” in the light of this goal (which we 
assume to be quite generally accepted), we see that 
uniformity of educational treatment is in fact the anti­
thesis of “equal educational opportunity”. One of the 
advantages of open enrollment, for example, is the very 
fact that schools can differ, that they can have varying 
curricula and standards which can be designed to meet 
the particular needs and desires of the children who 
choose to attend each particular school. Needless to say, 
this progressive approach to education is completely 
ruled out where the school assignments are made on a 
racial basis rather than upon the students’ needs, desires 
and aptitudes.

For this reason among others we think that the cor­
rect answer to the question is that racial quota, per­
centage, number or balance requirements have no place 
in public education. As a means, they are inappropriate 
and not reasonably related to the legitimate governmental 
goal of equal educational opportunity. In too many in­
stances, they instead absolutely preclude attainment of 
the goal. As we have previously shown, the factual result



32

of such racially motivated assignment, regardless of high- 
flown theory, in all too many school systems has been but 
a general deterioration of public education for all. Pupils 
and teachers who find themselves assigned to schools and 
excluded from others solely because of their race—in 
order to achieve what some governmental official at a 
given moment deems to be a suitable racial blend (seem­
ingly in direct contradiction of what this Court said in 
Alexander v. Holmes County, supra), are not apt to be 
at their teaching and learning best. Their sense of frustra­
tion is increased when they are forced to teach and study 
outside of the areas of their needs, desires and aptitudes. 
It is increased further when they are required to get up 
earlier and arrive home later—in order to travel longer 
distances to the school they have no desire to attend in 
the first place. Too often the net result has been physical 
withdrawal from and consequential resegregation of the 
public schools, accompanied by diminished financial sup­
port generally. In referring to the utter failure of such 
racial quota or percentage requirements to achieve even 
the immediate and improper ambition of federal officials 
(he., varying degrees of racial balance), Professor Alex­
ander M. Bickel states in “Desegregation, Where Do We 
Go From Here?” :16

“But whatever, and however legitimate, the reasons 
for imposing such requirements, the consequences 
have been perverse. Integration soon reaches a tip­
ping point. If whites are sent to constitute a minor­
ity in a school that is largely black, or if blacks are 
sent to constitute something near half the population 
of a school that was formerly white or nearly all­

18The New Republic, Feb. 7, 1970, pp. 20, 21. Professor Bickel, 
long having been associated with the vanguard of the civil rights 
movement, can scarcely be dismissed as a “racist”.



33

white, the whites flee, and the school becomes all 
or nearly all-black; resegregation sets in, blacks 
simply changing places with whites. They move, 
within a city or out of it into suburbs, so that under 
a system of zoning they are in white schools because 
the schools reflect residential segregation; or else 
they flee the public school system altogether, into 
private and parochial schools.”

Professor Bickel asks:
“What is the use of a process of racial integration 
in the schools that very often produces, in absolute 
numbers, more black and white children attending 
segregated schools than before the process was put 
into motion?”

There is no doubt as to the fact that in other civil 
rights arenas, the courts have looked upon racial quotas 
with something less than approval. In the context of racial 
quotas in public housing it was stated of such a require­
ment in Taylor v. Leonard, 30 N.J. Super. 116, 103 A.2d 
632, 633 (1954):

“. . . it is also a violation of section 1 of the Four­
teenth Amendment of the Constitution of the United 
States.

It is immaterial that the quota actually used 
bears some relation to the percentage of Negro pop­
ulation in the particular municipality.

The evil of a quota system is that it assumes 
that Negroes are different from other citizens and 
should be treated differently. Stated another way, 
the alleged purpose of a quota system is to prevent 
Negroes from getting more than their share of the 
available housing units. However, this takes for 
granted that Negroes are only entitled to the enjoy­
ment of civil rights on a quota basis.”

Similarly (and more recently) in Colon v. Tompkins



34

Square Neighbors, Inc., 294 F.Supp. 134, 139 (S.D.N.Y. 
1968), the district court declared:

“The ‘Tenant Selection Policy and Guidelines’ sub­
mitted to this Court by defendant Tompkins Square 
is basically sound. However, the document, in its 
reference to the desirability of a ‘balanced tenant 
body’ vaguely smacks of a quota system which in 
the opinion of this Court, represents a constitution­
ally impermissible process requiring arbitrary rejec­
tion of applicants after a set quota has been met.”

In striking such a racial quota or percentage system 
respecting public housing, it has been noted that quotas 
based upon race bear no relationship to individual 
eligibility and in reality constitute:

“. . . an arbitrary method of exclusion, a guaranty 
of inequality of treatment of eligible ‘persons’ ”,

and that:
“[i]t is the individual, . . . who is entitled to the 
equal protection of the laws, — not merely a group 
of individuals or a body of persons according to 
their numbers.” Banks v. Housing Authority, 120 
Cal.App. 2d 1, 260 P.2d 668, 673-674 (1953).

Another trouble with quotas and the exclusions they nec­
essarily entail was pointed out in Truax v. Raich, 239 
U.S. 33, 42-43 (1915). In holding quotas respecting 
alien employment rights unconstitutional under the Four­
teenth Amendment, this Court observed:

“If the restriction to twenty per cent, now imposed 
is maintainable the State undoubtedly has the power 
if it sees fit to make the percentage less!”

The existence of racial quotas would presumably require 
constant quota readjustments as the racial composition of 
the body upon which the quotas are based changes, if



35

not for other reasons which might from time to time be 
deemed appropriate by those who govern. The best way 
to avoid the problem is obviously to avoid its beginnings. 
See Board of Education v. Barnette, 319 U.S. 624, 641 
(1942).

Returning to the field of public education, we think the 
vices of racial quotas and their consequential racial 
exclusions are of no different import in the constitutional 
sense. We find it difficult to see any rational connection 
at all between the Brown theory of psychological injury 
to a black child through State-imposed racial exclusion 
and the situation where a black child attends a pre­
dominantly black or even all-black school because he 
personally desires to do so due to his preference for com­
panionship with members of his own race, because he 
considers it to be the best school for his own personal edu­
cational needs and desires, or because it is the school 
closest to his home. In the latter situation, the dangers of 
psychological injury (and denial of equal educational 
opportunity) are manifestly much less than where he is 
required to attend a school he doesn’t want to attend 
once again simply because he is black.

Because the racial exclusions we have described are 
contrary to the Constitution, they are outside the execu­
tive, legislative and judicial powers of the United States. 
To the extent that any court order requires them, it 
is unconstitutional and a complete nullity. See e.g., Erie 
Railroad Company v. Tompkins, 304 U.S. 64, 78-80 
(1938); United States v. Walker, 109 U.S. 258, 265-66 
(1883); Windsor v. McVeigh, 93 U.S. 274 (1876); 
Fay v. Noia, 372 U.S. 391, 423 (1963).



36

(b) Even if a rational connection could be said to 
exist between the legitimate governmental goal of pro­
hibiting State-required racial separation and the im­
position of racial quotas as one available means of 
achieving this legitimate end, such means is a re­
medial oversweep which violates transcendental coun­
tervailing rights, privileges, and immunities secured to 
parents, pupils, teachers and the State by the Consti­
tution and laws of the United States.

In Shelton v. Tucker, 364 U.S. 479, 488 (1960), it 
was said:

“In a series of decisions this Court has held that, 
even though the governmental purpose be legitimate 
and substantial, that purpose cannot be pursued by 
means that broadly stifle fundamental personal lib­
erties when the end can be more narrowly achieved. 
The breadth of legislative abridgment must be 
viewed in the light of less drastic means for achiev­
ing the same basic purpose.”

And in Griswold v. Connecticut, 381 U.S. 479, 485 
(1965), the Court referred to :

“• ■ • the familiar principle, so often applied by this 
Court, that a ‘governmental purpose to control or 
prevent activities constitutionally subject to state 
regulation may not be achieved by means which 
sweep unnecessarily broadly and thereby invade the 
areas of protected freedoms’.”

Where, as here, It is a First Amendment right which 
federal officials seek to abridge (to wit: the right of 
association), even a rational connection between the 
means and the end will not by itself suffice. Here there 
must be a “compelling reason” to justify the government’s 
interference with the protected right. E.g., Board of Edu­



37

cation v. Barnette, 319 U.S. 624, 639 (1942). As stated 
in NAACP v. Alabama, 357 U.S. 449, 460-61 (1958):

“Of course it is immaterial whether the beliefs 
sought to be advanced by association pertain to 
political, economic, religious or cultural matters, 
and state action which may have the effect of cur­
tailing the freedom to associate is subject to the 
closest scrutiny.”

This principle has long been recognized by this Court in 
the context of parental freedom respecting the education 
of their children. In Pierce v. Society of Sisters, 268 U.S. 
510, 534-35 (1925), the Court struck a statute which 
required children to attend public as opposed to parochial 
or private schools, saying:

“Under the doctrine of Meyer v. Nebraska, 262 U.S. 
390, we think it entirely plain that the Act of 1922 
unreasonably interfers with the liberty of parents 
and guardians to direct the upbringing and educa­
tion of children under their control. As often here­
tofore pointed out, rights guaranteed by the Consti­
tution may not be abridged by legislation which has 
no reasonable relation to some purpose within the 
competency of the State. The fundamental theory of 
liberty upon which all governments in this Union 
repose excludes any general power of the State to 
standardize its children by forcing them to accept 
instruction from public teachers only; those who 
nurture him and direct his destiny have the right, 
coupled with the high duty, to recognize and pre­
pare him for additional obligations.”

It cannot seriously be debated that the parental right 
to guide one’s child intellectually, culturally and religi­
ously, is a most substantial part of the liberty and free­
dom of the parent. The means currently favored by fed­
eral officials (i.e., racial quota, percentage, number or



38

balance requirements) to insure abrogation of those phy- 
chological barriers to “equal educational opportunity” 
caused by state-compelled racial separation, sweep far 
too broadly into this area of constitutionally protected 
freedoms. It may be true that some still believe that a 
racially balanced classroom is educationally beneficial 
and hence should be an end in itself. It is also factually 
quite obvious that many parents disagree. But be this 
as it may, it is settled that the First Amendment does not 
permit the imposition of any uniform educational dogma, 
process or set of beliefs upon each and every school dis­
trict, school, parent, pupil and teacher in the land. As 
pointed out in Board of Education v. Barnette, 319 U.S. 
624, 637 (1942):

“Free public education, if faithful to the idea of 
secular instruction and political neutrality will not 
be partisan or enemy of any class, creed, party, or 
faction. If it is to impose any ideological discipline, 
however, each party or denomination must seek to 
control, or failing that, to weaken the influence of 
the educational system.”

With particular relevance to the oversweep of present 
governmental efferts, it was also observed in Barnette:

“National unity as an end which officials may foster 
by persuasion and example is not in question. The 
problem is whether under our Constitution compul­
sion as here employed is a permissible means for its 
achievement. Struggles to coerce uniformity of sen­
timent in support of some end thought essential to 
their time and country have been waged by many 
good as well as by evil men. Nationalism is a rela­
tively recent phenomenon but at other times and 
places the ends have been racial or territorial se­
curity, support of a dynasty or regime, and particu­
lar plans for saving souls. As first and moderate



39

methods to attain unity have failed, those bent on 
its accomplishment must resort to an ever-increasing 
severity. As governmental pressure toward unity be­
comes greater, so strife becomes more bitter as to 
whose unity it shall be. Probably no deeper division 
of our people could proceed from any provocation 
than from finding it necessary to choose what doc­
trine and whose program public educational officials 
shall compel youth to unite in embracing. Ultimate 
futility of such attempts to compel coherence is the 
lesson of every such effort from the Roman drive 
to stamp out Christianity as a disturber of its pagan 
unity, the Inquisition, as a means to religious and 
dynastic unity, the Siberian exiles as a means to 
Russian unity, down to the fast failing efforts of 
our present totalitarian enemies. Those who begin 
coercive elimination of dissent soon find themselves 
exterminating dissenters. Compulsory unification 
of opinion achieves only the unanimity of the grave­
yard.

It seems trite but necessary to say that the First 
Amendment to our Constitution was designed to 
avoid these ends by avoiding these beginnings. 
There is no mysticism in the American concept of 
the State or of the nature or origin of its authority. 
We set up government by consent of the governed 
and the Bill of Rights denies those in power any 
legal opportunity to coerce that consent. Authority 
here is to be controlled by public opinion, not pub­
lic opinion by authority.” 319 U.S. at 640-41.

The vitality of this principle was again pointed out in 
the recent case of Epperson v. Arkansas, 393 U.S. 97, 
106 (1968), where after reiterating that the First Amend­
ment did not tolerate laws that cast a pall of orthodoxy 
over the classroom, this Court said:

“There is and can be no doubt that the First Amend­
ment does not permit the State to require that teach­



40

ing and learning must be tailored to the principles 
or prohibitions of any religious sect or dogma.”

It is significant to note that the dogma of “racial bal­
ance” would among other things absolutely preclude ful­
fillment of the educational aspirations espoused by grow­
ing numbers of the leaders of the black community. As 
Professor Bickel tells us:

“Polls asking abstract questions may show what 
they will about continued acceptance of the goal of 
integration, but the vanguard of black opinion, 
among intellectuals and political activists alike, is 
oriented more toward the achievement of group 
identity and some group autonomy than towards the 
use of public schools as assimilationist agencies. In 
part this trend of opinion is explained by the in­
effectiveness, the sluggishness, the unresponsiveness, 
often the oppressiveness of large urban public 
school systems, and in part it bespeaks the feeling 
shared by so many whites that the schools should, 
after all, be an extension of the family, and that the 
family ought to have a sense of class and cultural 
identity with them. And so, while the courts and 
HEW are rezoning and pairing Southern schools in 
the effort to integrate them, Negro leaders in North­
ern cities are trying to decentralize them, accepting 
their racial character and attempting to bring them 
under community control. While the courts and 
HEW are reassigning faculties in Atlanta to reflect 
the racial composition of the schools and bring 
white teachers to black pupils and black teachers to 
white ones, Negro leaders in the North are asking 
for black principals and black teachers for black 
schools.”17

While this sort of community control over public edu­
cation may not be constitutionally required, it is hard to

"The New Republic, Feb. 7, 1970, pp. 20, 22.



41

see why the Constitution must make any accommodation 
of the black community’s aspirations in the matter im­
possible. Presumably, it is the common goal of all to pro­
vide the best possible education for each and every child 
within our public school systems. Are there really no con­
stitutionally permissible alternatives to the present jug­
gling about of pupils and teachers (without any apparent 
regard for their highly individualized educational needs, 
goals and desires) simply to achieve a well-blended 
color scheme? Is this “equal educational opportunity”? 
Must all opportunity for innovation in public educa­
tion be sacrificed with appropriate te deums to ever 
higher levels of racial balance? Must any plan for de­
centralization to achieve greater parental or community 
control be scuttled in favor of ever larger educational 
parks and complexes designed to bring about greater 
racial, economic and social homogenization—with the in­
evitable lessening of the power of parents and communi­
ties to shape the destinies of their own children? Are the 
fundamental rights of parenthood of which this Court so 
eloquently spoke in Pierce v. Society of Sisters, 268 U.S. 
510, 534-35 (1925) and Meyer v. Nebraska, 262 U.S. 
390, 399-400 (1923), to be discarded in obeisance to 
the notion that those who govern care more for children 
than those who gave them life? We think it a singular 
as well as tragic commentary on our times that these 
questions of basic human liberty need even be asked.

Under either the traditional neighborhood school form 
of organization or under an open enrollment plan, it 
would be possible, for example, to permit any remaining 
racially or ethnically concentrated schools to design edu­
cational programs adopted to the particular educational 
needs and goals of that group, and in a degree which very



42

likely would not be practicable in a racially and ethni­
cally balanced school. If the black community desires its 
children’s education be shaped in part to enhance black 
cultural identity, why is this any more unconstitutional 
than conducting elementary grades in Spanish in cer­
tain public schools of New York or Miami which have 
a preponderance of Spanish-American pupils, or than 
allowing German-speaking citizens of Nebraska to main­
tain their particular cultural heritage? See Meyer v. Ne­
braska, 262 U.S. 390 (1923). Diversity has made this 
country great. Stagnation would be the result of uni­
formity—not national unity. As Professor Bickel ob­
serves :

“There are black schools all over the country. We 
don’t really know what purpose would be served 
by trying to do away with them, and many blacks 
don’t want them done away with. Energies and re­
sources ought to go into their improvement and, 
where appropriate, replacement. Energies and re­
sources ought to go into training teachers, and into 
all manner of experimental attempts to improve the 
quality of education. The involvement of cohesive 
communities of parents with the schools is obviously 
desired by many leaders of Negro opinion. It may 
bear educational fruit, and is arguably an inalien­
able right of parenthood anyway. . . ,”18

That the Constitution and laws of the United States 
were never intended to permit the federal government and 
its officials to go as far as they have gone in disrupt­
ing public education and in destroying the constitu­
tionally protected right of association is, or at least should 
be, obvious. We have already referred to the fact that any 
racial quota, percentage or balance requirement under
18The New Republic, “Desegregation, Where Do We Go From 
Here?”, pp. 20, 22 (Feb. 7, 1970).



43

the guise of enforcing the Fourteenth Amendment is, 
constitutionally speaking, a conceptual monstrosity. It 
completely overlooks basic facts as to what the Four­
teenth Amendment is all about. As we have already 
pointed out, it overlooks the fundamental fact that the 
Amendment was designed to afford personal rights to 
individuals and protect them against the arbitrary exer­
cise of governmental power — not to expand govern­
mental power at the expense of individual and personal 
rights. In Brown v. Board of Education, 347 U.S. 483 
(1954), this Court declared that individual and per­
sonal rights protected by the Fourteenth Amendment in­
cluded the right of an individual not to be excluded from 
or assigned to a public school solely on the basis of his 
race (with a correlative governmental duty not to deny 
or interfere with the individual’s exercise of this right). 
The imposition of racial quota, percentage or number 
requirements by the federal government is a complete 
denial of the Fourteenth Amendment personal right enun­
ciated by Brown. It is nothing less than the conversion 
of this personal constitutional right into a personal con­
stitutional duty to attend a school to which one has been 
assigned solely and exclusively because of one’s race 
(with a correlative governmental right to determine 
school exclusions and assignments on a racial basis, re­
gardless of the pupil’s desires and needs).19

It is undoubtedly this precise sort of perversion of the 
Constitution which Congress sought to guard against 
when it enacted the Civil Rights Act of 1964. While gov­

19See, Perry, “Racial Imbalance and the Fourteenth Amendment— 
Equal What?”, 52 A.B.A. Journal 552 (1966) [Mr. Perry is of 
counsel for the State in the instant case]; Bickel, “The Supreme 
Court and the Idea of Progress”, Harper & Row (Feb. 1970).



44

ernmental officials have paid litle heed to any of the 
restraints or limitations of this Act in their dealings with 
the school systems of Georgia and the other Southern 
States, it expressly provides in Title IV that:

“ ‘Desegregation’ means the assignment of students 
to public schools and within such schools without 
regard to their race, color, religion, or national 
origin, but ‘desegregation’ shall not mean the as­
signment of students to public schools in order to 
overcome racial imbalance.” 42 U.S.C. § 20Q0c(b) 
(Italics added)

The complete ignoring by HEW of all of the italicized re­
straints in its dealings with Southern school districts is a 
matter of public record. Racial quota, percentage or 
number requirements manifestly require the assignment 
of students to public schools with regard to their race 
and needless to say are in direct violation of the legis­
lative mandate.

In authorizing suits by the Attorney General on behalf 
of pupils being deprived “by a school board” of the equal 
protection of the laws, Title IV also provides:

“. . . nothing herein shall empower any official or 
court of the United States to issue any order seek­
ing to achieve a racial balance in any school by 
requiring the transportation of pupils or students 
from one school to another or one school district 
to another in order to achieve such racial bal­
ance. . . .” 42 U.S.C. § 2000c-6(a).

The ignoring of this restraint by recent occupants of the 
Office of Attorney General has been as open and fla­
grant as has been that of the various HEW Secretaries 
respecting 42 U.S.C. § 2000c(b). Too many federal 
officials still think of the rule of law as something with 
which only Southern school districts need concern them­



45

selves. The Act also has been totally ignored as to its 
limitation of Federal financial assistance terminations to 
situations of “actual exclusion” of an individual from 
participation in a federally assisted program due to race, 
color or national origin, or his being:

. . subjected to discrimination under any program 
or activity receiving Federal financial assistance.” 
42 U.S.C. § 2G00d. (Italics added)

Despite the fact that it is plainly impossible for anyone 
to be “subjected” to anything concerning which he has a 
choice, federal officials have continued to ignore this 
limitation, and have enforced racial balance, quota, num­
ber or percentage requirements (however labeled for 
word game purposes) regardless of the desires of the 
parents, pupils and teachers involved. These govern­
mental officials, in other words, have not only violated 
and perverted the spirit and letter of the Constitution 
but have also directly ignored the Congressional mandate 
in the matter.20 It is respectfully submitted that any im­
position of racial exclusions (i.e., quota, percentage, 
number or balance requirements) upon teachers and 
pupils in the public schools of Georgia or any other state 
is as obnoxious to the Constitution and laws of the land 
as it is to human liberty and dignity.

20The possibility of Congressional relief is unlikely. With the ex­
ception of a few courageous men such as Senator Ribicoff, it does 
not appear that many Northern congressmen are willing to don 
sackcloth and ashes over educational injury to Southern children 
only—particularly where they, politically speaking, retain the best 
of both worlds by perpetuation of the discrimination against the 
South (as a scapegoat) while avoiding similar disruption of the 
educational process in their own constituencies.



46

2. EVEN IF RACIAL EXCLUSIONS IN THE FORM 
OF QUOTA, PERCENTAGE OR BALANCE RE­
QUIREMENTS COULD BE SAID TO BE CON­
STITUTIONALLY PERMISSIBLE OR RE­
QUIRED, EXISTING LOP-SIDED ENFORCE­
MENT AGAINST CHILDREN, PARENTS, 
TEACHERS AND SCHOOL DISTRICTS IN 
SOUTHERN STATES ONLY, CONSTITUTES 
INVIDIOUS SECTIONAL DISCRIMINATION 
WHICH IN AND OF ITSELF IS VIOLATIVE OF 
RIGHTS SECURED TO SUCH PERSONS UNDER 
THE VARIOUS “DUE PROCESS” AND “EQUAL 
PROTECTION” GUARANTEES OF THE UNIT­
ED STATES CONSTITUTION.

The disparity between the treatment accorded the 
South and that accorded the rest of the Nation in con­
nection with the factual separation of black and white 
pupils in the public schools is a national scandal. Senator 
Ribicoff of Connecticut openly admits that the North is 
guilty of “monumental hypocrisy” in the matter and in 
an interview, Vice President Spiro Agnew expresses the 
hope the courts will act so that “the lack of evenhanded- 
ness in treating North and South would disappear”. In a 
concurring opinion in Northcross v. Board of Education 
of The Memphis, Tennessee City Schools, 397 U.S. 232, 
236-37 (1970), Mr. Chief Justice Burger states that the 
constitutionality of racial percentage requirements 
(which the Justice Department and HEW have been seek­
ing to foist upon Southern children since 1966) should 
be resolved by the Supreme Court as soon as possible. 
Professor Alexander M. Bickel, a constitutional law au­
thority of impeccable credentials among civil rights ad­
vocates, asks:



47

“On a normative level, is it right to require a small 
rural and relatively poor segment of the national 
population to submit to a kind of schooling that is 
disagreeable to them (for whatever reasons, more or 
less unworthy), when we do not impose such school­
ing on people, in cities and in other regions, who also 
dislike it (for not dissimilar reasons, more or less 
equally worthy or unworthy) ?”21

We indeed find it quite difficult to see how anyone can 
view the so well recognized invidious sectional discrimina­
tion respecting the imposition of racial quota, number, 
percentage or balance requirements with anything less 
than moral outrage. Past and present governmental ac­
tivities have been at odds with the Biblical injunction of 
Matthew 7:3-5 and Luke 6:41-42 to say the least. It is 
of greater importance only with respect to this particular 
case and this Court’s adjudication of the same that the 
government’s actions are also violative of (a) Article 
IV, Sec. 2, Par. 1 of the Constitution of the United 
States,22 (b) the “due process” clause of the Fifth Amend­
ment thereto, and (c) the “equal protection” standards 
enunciated by the Fourteenth Amendment and rendered 
applicable to the federal government by the Fifth, Ninth 
and Tenth Amendments to the Constitution.

All of these provisions, of course, relate to those basic 
jurisprudential concepts of essential fairness embodied in 
“due process” and “equal protection”. Factually speak­
ing, controversies involving these concepts most fre­
quently have arisen under the Fourteenth Amendment, 
which by its terms is applicable only to the States and
21The New Republic, “Desegregation, Where Do We Go From 
Here?”, pp. 20, 21 (Feb. 7, 1970).

22“The Citizens of each State shall be entitled to all Privileges 
and Immunities of Citizens in the several States.”



48

does not bind Federal officials. It is now settled, however, 
that by virtue of other constitutional provisions these 
same standards are fully applicable to arbitrary actions 
and essential unfairness on the Federal level. In Bolling 
v. Sharpe, 347 U.S. 497, 499 (1954), it was said that:

“The Fifth Amendment, which is applicable in the 
District of Columbia, does not contain an equal 
protection clause as does the Fourteenth Amend­
ment which applies only to states. But the concepts 
of equal protection and due process, both stemming 
from our American ideal of fairness, are not mut­
ually exclusive. The ‘equal protection of the laws’ 
is a more explicit safeguard of prohibited unfairness 
than ‘due process of law,’ and, therefore, we do not 
imply that the two are always interchangeable 
phrases. But as this Court has recognized, discrim­
ination may be so unjustifiable as to be violative of 
due process.”

This incorporation of the “equal protection” clause into 
the “due process” clause was continued in Griswold v. 
Connecticut, 381 U.S. 479, 487 (1965), where Chief 
Justice Warren, Justice Goldberg and Justice Brennan, 
in their concurring opinion, referred to Bolling v. Sharpe, 
supra, as having derived an “equal protection” principle 
from the Fifth Amendment’s “due process” clause, and 
where the dissenting opinion of Justices Black and 
Stewart stated that the entire bill of rights, including the 
“due process” clause of the Fifth Amendment, was a 
guarantee that all persons would receive equal treatment 
under the law. Virtually all recently reported decisions 
in point appear to have adopted the view that the “equal 
protection” standards of the Fourteenth Amendment are 
also constitutionally guaranteed under the “due process” 
clause of the Fifth Amendment. See, e.g., Harrell v. 
Tobriner, 279 F.Supp. 22, 25 (D.D.C. 1967) [3 judge],



49

aff’d., 394 U.S. 618 (1969); Brown v. McNamara, 263 
F.Supp. 686, 691 (D.N.J.), aff’d., 387 F.2d 150 (3dCir. 
1967); Todd v. Joint Apprenticeship Committee, 223 
F.Supp. 12, 19-20 (N.D.I11. 1963). As stated by Judge 
Edgerton in his concurring opinion in Fuiwood v. Clem- 
mer, 111 U.S.App.D.C. 184, 295 F.2d 171, 174 (D.C. 
Cir. 1961):

“Though the equal protection clause of the Consti­
tution applies in terms only to the states, it would 
be unthinkable that the same Constitution would im­
pose a lesser duty on the Federal Government.”

In addition to the Fifth Amendment, we think that the 
right of the State of Georgia and the right of parents, 
pupils and teachers, to receive substantial equality of 
treatment respecting the application and enforcement of 
Federal law, is also protected by the Ninth Amendment, 
which declares:

“The enumeration in the Constitution of certain 
rights shall not be construed to deny or disparage 
others retained by the people,”

and by the Tenth Amendment, which provides:
“The powers not delegated to the United States by 
the Constitution, nor prohibited by it to the States, 
are reserved to the States respectively, or to the 
people.”

In Griswold v. Connecticut, 381 U.S. 479, 488-99 
(1965), Justice Goldberg indicated that the framers of 
our Constitution inserted the Ninth and Tenth Amend­
ments to make it abundantly clear that the enumeration 
in the first eight amendments of certain specified rights 
reserved to the people (and therefore not subject to en­
croachment by the new and somewhat feared Federal gov­
ernment) were never intended to be construed as ex­



50

haustive of the fundamental rights which the Constitu­
tion gurantees to the people. Those other fundamental 
rights, or, in other words, those rights of such nature as 
to cause their denial to be violative of those fundamental 
principles of liberty and justice which lie as the base of 
all of our civil and political institutions, are protected by 
the Ninth and Tenth Amendments. That the concept of 
“equal protection” before the law (with its corollary pro­
hibition of irrational and capricious classifications) is 
one of those “fundamental principles of liberty and jus­
tice” upon which our government is based would seem 
to be self-evident. But if any doubt ever could have been 
said to have existed on the matter, it was resolved in 
Harper v. Virginia Board of Elections, 383 U.S. 663, 
667 (1966), where the court stated:

“This [the equal protection clause] is an essential 
part of the concept of a government of laws and 
not men. This is at the heart of Lincoln’s vision of 
‘government of the people, by the people [and] for 
the people.’ ”

We do not overlook the fact that the Attorney Gen­
eral possesses broad authority to institute, control or dis­
miss legal proceedings brought on behalf of the United 
States. Nor are we unaware of the discretion of the Sec­
retary of the United States Department of Health, Edu­
cation and Welfare in his administration of those laws 
which Congress has placed in his hands. But it is axio­
matic that neither the Attorney General, nor the Secre­
tary of HEW, nor any other official of the United States, 
stands above the law. None, from the President on down, 
can lawfully act without regard to the constitutional and 
statutory limitations upon the exercise of the power of 
his office. See e.g., Youngstown Sheet & Tube Co. v. Saw­
yer, 343 U.S. 579, 585-89 (1952). As Mr. Justice



51

Holmes stated over 40 years ago:
“The duty of the President to see that the laws be 
executed is a duty that does not go beyond the laws 
or require him to achieve more than Congress sees 
fit to leave within his power.” Myers v. United 
States, 272 U.S. 52, 177 (1926) [dissenting opin­
ion].

Thus the broad power of the Attorney General has con­
stitutional limitations. One such limitation is that he 
cannot enforce the law in an arbitrary and discriminatory 
manner. We think a court would pay little heed to any 
contention that his “discretion” enabled him to enforce 
narcotics laws only against black citizens, or the anti­
trust laws only against Michigan, Indiana, Illinois or 
Ohio corporations. Invidious sectional discrimination in 
enforcement of uniform national civil rights statutes per­
mits of no different rule. Even if existing governmental 
practices, conduct and actions were lawful (we believe 
we have already shown quite clearly that they are not), 
the present lop-sided enforcement of the law would be 
violative of well-settled constitutional guarantees. In Yick 
Wo v. Hopkins, 118 U.S. 356, 373 (1886), this Court, 
in reviewing a municipal ordinance enforced only against 
Chinese, declared:

“Though the law itself be fair on its face and im­
partial in appearance, yet, if it is applied and ad­
ministered by public authority with an evil eye and 
an unequal hand, so as to make unjust and illegal 
discriminations between persons in similar circum­
stances, material to their rights, the denial of equal 
justice is still within the prohibition of the Consti­
tution.”

Dobbins v. Los Angeles, 195 U.S. 223, 240 (1904), 
cited Yick Wo as authority for the proposition that al­



52

though a law might be lawful upon its face and ap­
parently fair in its terms:

“• . . if it was enforced in such a manner as to work 
a discrimination against a part of the community 
for no lawful reason, such exercise of power would 
be invalidated by the courts.”

The continued vitality of this settled constitutional con­
cept of nondiscriminatory enforcement of the laws being 
required by “due process” and “equal protection” is seen 
in such recent cases as Dixon v. District of Columbia, 
129 U.S.App.D.C. 341, 394 F.2d 966, 968 (D.C. Cir. 
1968), where the court of appeals observed that even 
the almost unlimited discretion of a prosecutor to drop 
or press charges could run afoul of the “equal protec­
tion” clause (as applied to the Federal Government by 
the “due process” clause of the Fifth Amendment), if the 
prosecutor employed an impermissible classification in 
deciding who would and who would not be prosecuted. 
Cain v. Bowles, 4 F.R.D. 504, 505 (D. Ore. 1945), 
explained in language applicable to either the Attorney 
General or the Secretary of HEW:

“The Administrator’s discretion, like all discretion 
involving the exercise of power is a legal discretion, 
and must be fairly exercised on a consideration of 
the whole record. No citation of authority is neces­
sary for this fundamental proposition.” 4 F.R.D at 
505-06.

Scores of this Court’s decisions have reached this same 
conclusion. See, e.g., Social Security Board v. Nierotko, 
327 U.S. 358, 369 (1945); Dismuke v. United States, 
297 U.S. 167, 172 (1936); Kwock Jan Fat v. White, 
253 U.S. 454, 457-58 (1920); American School of Mag­
netic Healing v. McAnnulty, 187 U.S. 94 (1902).



53

Frankly, we think the invidious sectional discrimina­
tion of which we complain is so well known as to be a 
matter of judicial notice. As already pointed out, it has 
been fully acknowledged by the Vice President of the 
United States as well as such civil rights stalwarts as 
Senator Ribicoff and Professor Bickel. We would hope 
that justice is not deaf as well as blind and that geo­
graphic bigotry will no longer be countenanced by the 
courts. The statistical information set forth both in this 
brief and in the appendix thereto is but illustrative of 
what is found in the government’s own reports. These 
figures speak in a most stentorian manner. They ery- 
stalize that which everyone already knows, serving to 
point out the enormity of the present sectional discrim­
ination, particularly in light of the high national level 
of factual racial separation within the public schools. 
While it would serve no valid purpose to review these 
startling statistics once again, it does bear repeating that 
even prior to the government’s massive assault upon the 
children, teachers, parents and schools of Georgia and 
the other Southern States, the United States Commission 
on Civil Rights had concluded that the extent of racial 
separation, isolation or segregation in Northern school 
systems did not differ markedly from that in the South.23 
It also bears emphasis that outside the South such factual 
racial separation, isolation and segregation has been per­
mitted to grow without any real hindrance or interference 
by federal officials, since the 1967 Report of the Civil 
Rights Commission, to the point where the government’s 
most recent statistics show that in the Nation as a whole 
only 23.4 percent of all black pupils enrolled in the pub­
lic schools were attending predominantly white schools,
23U. S. Commission on Civil Rights, “Racial Isolation in the Pub­
lic Schools”, p. 7 (1967).



54

and that fully 61 percent of black public school pupils 
in the United States were attending schools which were 
virtually all (95 to 100 percent) black. As pointed out 
in the statement portion of our brief, the governmental 
releases show that federal officials have, insofar as en­
forcement is concerned, closed their eyes to the racial 
situation in public schools everywhere in the United 
States other than the South. It is this distortion of vision 
which we pray the Court to correct.

It is self-evident, we think, that there can be no such 
thing as true constitutional government in the United 
States if the laws of the land mean one thing in Georgia 
and another in Ohio. Nor can there be true constitutional 
government if federal officials charged with enforcing 
law apply it with an uneven hand, construing it to require 
one result in South Carolina and another in New York. 
If an all black school or a school lacking any specified 
number, percentage or quota of a given race, is uncon­
stitutional or ineligible for federal financial assistance in 
Athens, Georgia, or Charlotte, North Carolina, the same 
result must obtain in Chicago, Cleveland, Philadelphia 
and everywhere else. We know that anything less is 
unacceptable morally. We would like to think anything 
less is unacceptable politically. We are of the opinion 
that anything less is unacceptable constitutionally.

CONCLUSION
Pre-Brown State-compelled racial separation is dead. 

We seek not to resurrect it. But is there but one lawful 
alternative or option available to supplant the corpse? 
Must public education be placed in a procrustean bed of 
racial balance which will surely sap its vitality if not its 
life? Is there any possible justification for the existing



55

attempt to enforce uniform racial balance on public 
school pupils or teachers? In Barnette, this Court spoke 
in favor of diversity and multiple options, and against 
governmentally imposed uniformity. It said:

“Struggles to coerce uniformity of sentiment in sup­
port of some end thought essential to their time and 
country have been waged by many good as well as 
by evil men. Nationalism is a relatively recent phe­
nomenon but at other times and places the ends have 
been racial or territorial security, support of a 
dynasty or regime, and particular plans for saving 
souls. As first and moderate methods to attain unity 
have failed, those bent on its accomplishment must 
resort to an ever-increasing severity. As govern­
mental pressure towards unity becomes greater, so 
strife becomes more bitter as to whose unity it shall 
be. Probably no deeper division of our people could 
proceed from any provocation than from finding it 
necessary to choose what doctrine and whose pro­
gram public educational officials shall compel youth 
to unite in embracing.” Board of Education v. Bar­
nette, 319 U.S. 624, 640-41 (1942).

After pointing out that the resulting unanimity in such 
situations was that of the graveyard, this Court noted the 
First Amendment to the Constitution was designed to 
avoid this end by avoiding these beginnings. It is a shame 
that the striking and prophetic wisdom of the above 
words has been forgotten.

The government continues to seek higher and higher 
levels of racial balance in Southern schools, to use the 
words of Barnette, with “ever-increasing severity”. We 
think there is little doubt but that the injury being in­
flicted upon the children, parents and teachers of Georgia 
and of the other states victimized by the government’s 
actions renders that described by the Court in Brown



56

v. Board of Education pale by comparison. At issue 
is nothing less than permanent injury to the hearts 
and minds of hundreds of thousands if not millions of 
both black and white children who, lacking the financial 
means to escape to private schools, will, as the result of 
the government’s actions, be relegated to declining pub­
lic school systems increasingly bereft of public support, 
including the vital fiscal support which must be main­
tained and increased if public schools are to remain viable 
institutions capable of furnishing meaningful educational 
opportunity. There is the very real danger of a harden­
ing of class lines, with the children who are forced to 
attend public schools being condemned to a second class 
education and consequently second class economic and 
social opportunity. This is not mere speculation or un­
founded fear. As we have shown, the withdrawal process 
has already started.

The situation becomes even more completely intol­
erable, as well as divisive nationally, when it is realized 
that it is only those children, teachers and parents who 
happen to live in Georgia and the other Southern States 
who are forced to comply with racial quota and balance 
requirements. We hope that this Court will make it crystal 
clear that it meant what it said and said what it meant in 
Alexander v. Holmes County Board of Education, 396 
U.S. 19, 20 (1969), about the constitutional mandate 
being that “no person . . .  be effectively excluded from 
any school because of race or color”. We think the deci­
sion of the Supreme Court of Georgia is plainly right. 
We think that decision should be affirmed.

In the event the Court does not agree with us as to the 
unconstitutionality of the federal government’s coercion 
of racial exclusions (in the form of quota, percentage and



57

balance requirements), we urge the Court to declare 
that there is but one Constitution for all citizens and that 
the same standards applicable to Georgia must be ap­
plied throughout the United States.

Respectfully submitted,

A r t h u r  K. B o lt o n  
Attorney General

H arold  N. H il l , J r .
Exec. Assistant Attorney General

A l f r e d  L. E vans, J r . 
Assistant Attorney General

P L E A S E  A D D R E S S  ALL J. LEE PERRY
c o m m u n i c a t i o n s  t o : Assistant Attorney General
Alfred L. Evans, Jr.
Asst. Attorney General 
132 State Judicial Bldg.
Atlanta, Ga. 30334 Attorneys for the
Telephone (404) 525-0401 State of Georgia



APPENDIX



A1

APPENDIX
RACIAL SEGREGATION IN SIX TYPICAL

NORTHERN STATES AS SHOWN BY RECENT 
HEW STATISTICAL RELEASES

OHIO
1. Cleveland
The rising tide of racial segregation in the schools 

of Cleveland between the years 1952 and 1962 is de­
tailed in the 1967 Report of the U. S. Commission on 
Civil Rights (See Brief, p. 8). By 1962, the city’s 
conversion to a dual system of education based upon 
race was almost complete. Fully 84.4 percent of Cleve­
land’s black pupils were in majority black schools, with 
over half of these black pupils (57.4 percent) attend­
ing schools which were almost entirely (90 to 100 
percent) black. At the other end of the spectrum, 80.2 
percent of Cleveland’s white students were in almost en­
tirely (90 to 100) percent white schools.

While this already high level of racial separation or 
segregation might have been thought difficult to increase, 
Cleveland has accomplished the task. According to 
HEW’s most recent survey the percentage of the city’s 
black pupils attending majority-black schools by the 
Fall of 1968 had risen from 84.4 percent to 95.2 per­
cent, with the percentage attending almost entirely (90 
to 100 percent) black schools being up from the 57.4 
percent level to 86 percent. As of the Fall of 1968, 93 
percent of Cleveland’s white students, on the other hand, 
were still attending predominantly white schools, with 
74.6 percent being enrolled in schools almost entirely 
(90 to 100 percent) white (the slight drop in this last 
mentioned figure presumably being attributable to the



A2

overall increase of black pupils to roughly 56 percent 
of Cleveland’s total enrollment). Of the city’s 180 
schools, 23 are 100 percent black and 78 have more than 
80 percent black enrollment. There are 9 all white 
schools and 44 schools having higher than 80 percent 
white enrollment. Indeed, only 7 of the city’s 180 
schools approach what might be considered to be racial 
balance (i.e., a fifty to sixty percent black enrollment).

It would appear that problems of racial imbalance as 
to teaching staff have been largely avoided in Cleve­
land by the simple expedient of not employing any great 
number of black teachers. In sharp contrast to the 
roughly 56 percent black pupil enrollment only 28.9 
percent of the teaching staff is black. (In a similar 
situation, the Atlanta, Georgia, public school system 
employs a teaching staff composed of 57 percent black 
teachers). HEW’s figures show that black teachers are 
by and large assigned to black schools, while instruc­
tion in white schools is mostly by white teachers (At­
lanta is under court order to effect racial balance in 
each of its schools based upon the system-wide black- 
white teacher ratio). Neither the Justice Department nor 
HEW appears to have shown any interest in disestab­
lishing the dual school system of Cleveland, Ohio.

2. Hamilton
Racial segregation in the public schools of Ohio is 

not in the least confined to large urban areas as Cleve­
land or districts having a predominantly black enrollment. 
In Hamilton, Ohio, black pupils constitute only 10 per­
cent of the school district’s 15,463 students. One might 
well think that the mere 1,554 black students could 
be assigned so as to avoid any racial concentration. Such



A3

is not the case. According to HEW’s latest statistics, 
almost half of the district’s black pupils (i.e., 673) have 
been placed in the Harrison school, which as a result 
of the racial concentration is 82.5 percent black. All but 
4 of the district’s 23 schools have black enrollments of 
less than 5 percent. Respecting faculty, only 17 of the 
district’s teachers (less than 3 percent) are black. Nine of 
the 17 teachers have been assigned to the racially segre­
gated Harrison school.

3. Toledo
According to the recent HEW survey, Toledo oper­

ated 76 schools during the Fall of 1968 and had an 
overall black enrollment of about 27 percent. Over half 
of the city’s black students have been assigned to schools 
having black enrollments in excess of 90 percent and 
fully 77.3 percent of the black pupils are in predom­
inantly black schools. The survey shows that the school 
district’s black teachers are largely assigned to the seg­
regated black schools.

4. Columbus
The survey indicated that Columbus, Ohio, operated 

168 schools and had an overall black enrollment of 
about 26 percent. Forty percent of these students are 
in 90 to 100 percent black enrollment schools while 
fully 71.2 percent are in majority black enrollment 
schools. HEW figures show a pattern of faculty assign­
ment according to race.

5. Dayton
Dayton too operates an almost completely segregated 

school system for its black pupils (who constitute 38.3



A4

percent of Dayton’s total public school enrollment). A 
startling 80.3 percent of Dayton’s black pupils are as­
signed to 90 to 100 percent black enrollment schools 
while 82.2 percent of its white pupils are permitted to 
attend 90 to 100 percent white enrollment schools. 
Again HEW figures show that black teachers are as­
signed mostly to black schools. Of Dayton’s 69 public 
schools, 20 are more than 90 percent black while 38 
are more than 90 percent white.

Summing up the situation in Ohio, it would appear 
that whenever a school district in that State has a suf­
ficient number of black pupils to make their concentra­
tion in a “black” school feasible, this is what is done. 
Racially segregated school districts covered by the re­
cent HEW survey include Canton, Youngstown, Cin­
cinnati, Springfield, Shaker Heights and Akron. HEW’s 
“Directory, Public Elementary and Secondary Schools 
in Large School Districts (with enrollment and instruc­
tional staff by race, Fall 1967)” shows the same pat­
tern in many more Ohio school districts. Until the ’40s 
and ’50s various Ohio cities openly maintained separate 
schools for black students in which instruction was or­
dinarily provided by an also segregated teaching staff.1 
Originally erected upon laws requiring or permitting it, 
racial segregation in the public schools of Ohio has 
been perpetuated and increased in the post Brown 
period to an extent which can scarcely be said to be 
unnoticed. Yet for all of the talk about the necessity of 
dismantling dual school systems, federal officials con­
tinue to look the other way when in Ohio. They continue 
to look only to the South.

JSee, U. S. Commission on Civil Rights, Racial Isolation in the 
Public Schools, p. 43.



A5

ILLINOIS
1. Chicago
We have previously noted the growth of racial segre­

gation in the public schools of Chicago to where by the 
1965-66 school year fully 89.2 percent of the city’s black 
pupils were enrolled in almost entirely (90 to 100 per­
cent) black schools, while at the same time 88.8 percent 
of the city’s white pupils were attending virtually all 
(90 to 100 percent) white schools. While HEW’s latest 
figures show that this level of almost complete apartheid 
has tapered off ever so slightly, racial segregation con­
tinues to pervade the Chicago schools. The newest figures 
show that 86.1 percent of Chicago’s black pupils (who 
constitute 52.9 percent of the total enrollment) con­
tinue to attend schools virtually all (90 to 100 percent) 
black (a drop of 3.1 percent since the 1965-66 school 
year). Significantly, the bulk of these students (i.e., 52.1 
percent) attend schools which have a black enrollment 
in excess of 99 percent. Of the city’s 610 schools, 42 are 
all black and 277 more than 80 percent black. Fourteen 
are all white and 207 are more than 80 percent white. Of 
the 610 schools, only 22 approach racial balance (which 
in view of the roughly fifty-fifty racial composition might 
be considered to be in the 45 to 55 percent black en­
rollment range). HEW’s most recent survey shows the 
same general pattern of black teachers being assigned 
mostly to the city’s segregated black schools.

2. Harvey Public School District
According to HEW’s recent survey, the Harvey Public 

School District, as of the Fall of 1968, operated 8 schools 
with a total enrollment of 3,573 pupils of whom 879 
(24.6 percent) were black. As in the case of Hamilton,



A6

Ohio, one would think that such a system could easily 
dismantle its dual school system. As in the case of Hamil­
ton, Ohio, it has not. It has assigned approximately half 
(i.e., 427) of its black pupils to the all black Riley school 
for a totally segregated education. An additional 286 
black students are assigned to the 55 percent black Emer­
son school, 135 to the 26.3 percent black Lowell-Long- 
fellow school, with the remaining 31 black pupils scat­
tered as tokens among the 5 white schools so that none 
of the latter has a black enrollment in excess of 5.3 per­
cent. Again, it is seen that black teachers are for the most 
part assigned to the segregated black schools. The Harvey 
Public School District has placed 15 of its 45 black teach­
ers in the all-black Riley school. Thirteen are in Emerson, 
5 in Lowell-Longfellow and the remaining 12 scattered 
in the white schools.

3. Peoria

The HEW survey shows similar racial concentration 
in Peoria, Illinois. Black enrollment is 17.7 percent of the 
total number of pupils in the city’s 39 schools. Yet over 
half of these black pupils have been assigned to 7 
schools which range from 50.3 to 95.7 percent black. 
Fully 19 schools are permitted to operate as almost en­
tirely (90 to 100 percent) white schools. The survey 
once again shows a pattern of avoiding faculty desegrega­
tion problems by not employing any significant number 
of black teachers (only 4.7 percent in Peoria), and as­
signing those black teachers who are employed primarily 
to the black schools.

4. East St. Louis

East St. Louis reflects the same pattern of racial segre­
gation, only this time in a predominantly black school



A7

district (71.6 percent of the total enrollment is black). 
Fully 71.9 percent of the white students are permitted to 
attend predominantly white schools (with 4 schools being 
all white). Fully 24 of the district’s 41 schools have a 
black enrollment in excess of 95 percent. As a result of 
the racial concentration, 76 percent of all black pupils 
attend virtually all (90 to 100 percent) black schools.

Summing up the situation in Illinois, it is seen that 
things are about the same here as they are in Ohio. Where 
there is a substantial number of black pupils, they are 
concentrated in predominantly black schools. In addition 
to the school districts which we have discussed, the recent 
HEW survey shows racially segregated school systems in 
Chicago Heights, Posen-Robbins, Waukegan, Spring- 
field, Joliet and Rockford as well as other areas. HEW’s 
“Directory, Public Elementary and Secondary Education 
in Large School Districts (with enrollment and instruc­
tional staff by race, Fall 1967)” shows the same pattern of 
racial segregation throughout the State. As in Ohio, racial 
segregation was frequently erected with official sanction 
in Illinois. As recently as 1952, at least seven counties 
of the State officially maintained separate schools for 
black pupils and openly assigned teachers and principals 
on a racial basis. See, U. S. Commission on Civil Rights, 
Racial Isolation in the Public Schools, p. 43. Federal 
officials have taken no steps to dismantle the dual school 
systems so prevalent in Illinois.

PENNSYLVANIA
1. Philadelphia
The 1967 Report of the United States Commission 

on Civil Rights reflected the increase of racial segre­
gation in the public schools of Philadelphia between 1950



A8

and 1965. It indicated that by 1965, 90.2 percent of the 
city’s black students were in predominantly black schools 
with fully 72 percent being enrolled in virtually all (90 
to 100 percent) black schools.

HEW’s more recent survey shows that while the num­
ber of black pupils in virtually all (90 to 100 percent) 
black schools had decreased by about 3 percent (i.e., to
67.1 percent), over ninety percent remained in pre­
dominantly black schools. At the same time, the bulk 
(82.4 percent) of white students were still attending ma­
jority-white schools with over half (58.8 percent) being 
enrolled in virtually all (90 to 100 percent) white schools. 
In a system where black pupils constitute 58.8 percent of 
the total enrollment, 66 of the 278 schools had a black 
enrollment of over 99 percent while 35 schools had less 
than a 3 percent black enrollment. The familiar pattern 
of black teachers being more heavily concentrated in the 
black schools is also indicated by the recent survey.

2. Pittsburgh

Pittsburgh too operates a dual system of education for 
black and white pupils. While the black enrollment in 
Pittsburgh is but 39.2 percent of the total number of 
pupils in the city’s schools, fully 78.6 percent are as­
signed to majority-black schools and over half (52.5 per­
cent) are assigned to virtually all (90 to 100 percent) 
black schools. With respect to Pittsburgh’s white students,
91.2 percent attend majority-white schools and almost 
half (47.6 percent) are assigned to virtually all (90 to 
100 percent) white schools. Of the city’s 113 schools 
only 4 approach racial balance (which based upon the 
system-wide racial composition might be said to be be­
tween 35 and 45 percent black enrollment). Again, black



A9

teachers, if and when employed at all, are apt to be as­
signed to black schools.

3. Penn Hills Township
Penn Hills Township has approximately 14,128 pupils 

in its 16 schools. Only 5.7 percent (809) are black. 
Again, one would suppose that in such a system racial 
concentration could be avoided with little difficulty. 
Again, the government’s own statistics show that anyone 
having such a thought would be in error. Almost a third 
of the black pupils (246) have been assigned to the 100 
percent black Lincoln Park Elementary School. The re­
mainder of black pupils are scattered among the 15 
white schools—all of which have a white enrollment of 
more than 90 percent. Only 5 of the district’s 581 teach­
ers are black.

4. McKeesport Area School District
According to the HEW survey, this school district had 

an enrollment of 10,560 during the Fall of 1968, of 
which 1,336 (12.7 percent) were black. Over half of 
these black pupils were assigned to two schools, one 
being 83.5 percent black and the other 38.0 percent 
black. The remaining black pupils were scattered among 
fifteen of the remaining 21 schools of the district (6 
schools being 100 percent white). Five of the seven black 
teachers employed by the school district were assigned to 
the predominantly black school.

The summing up of the situation in Pennsylvania leads 
one to the same conclusions which were made respecting 
Ohio and Illinois- The HEW survey of the Fall of 1968 
showed a pattern of racial discrimination in such cities as 
Harrisburg, Chester City, Norristown, Wilkinsburg and 
Darby Township as well as in the districts we have dis­



A10

cussed. HEW’s “Directory, Public Elementary and Sec­
ondary Education in Large School Districts (with en­
rollment and instructional staff by race, Fall 1967)” 
clearly shows the same statewide pattern of racial segre­
gation—provided an adequate number of black pupils 
exists within a school district so as to make segregation 
feasible—as is seen in Ohio and Illinois. Although black 
pupils constitute but 11.7 percent of Pennsylvania’s pub­
lic school students, fully 77.5 percent of the black pupils 
are concentrated in majority black schools. This figure is 
all the more significant when it is considered that Penn­
sylvania has a vast number of school districts where the 
black pupils are too small in number to practically per­
mit racial isolation in any particular school. Again, it 
may be wondered why federal officials are so timid in 
school districts located outside the South.

NEW YORK
1. New York City
The New York City Public Schools had over a mil­

lion students during the Fall of 1968, of which 334,841 
(31.5 percent) were black and 467,365 (43.9 percent) 
were white (the HEW survey giving the separate break­
down for the substantial Spanish-American minority). 
The survey indicated that 80.3 percent of New York’s 
black pupils were enrolled in schools which were pre­
dominantly “minority” schools and that over half of the 
black pupils attended schools which were virtually all 
(90 to 100 percent) minority. At the same time, fully 
70.1 percent of the white students were attending pre­
dominantly white schools.

2. Buffalo
Buffalo operates 101 schools for its 72,115 students.



A l l

According to the HEW survey, black enrollment consti­
tuted 36.6 percent of the total in the Fall of 1968. As of 
that time, fully 62.5 percent of the city’s black students 
were assigned to virtually all (90 to 100 percent) black 
schools. Of the white students, 98.4 percent attended 
predominantly white schools and 31.8 percent attended 
virtually all (90 to 100 percent) white schools. Twenty- 
three of the district’s 101 schools were at least 90 per­
cent black, while fifty-three were at least 80 percent white. 
HEW’s statistics again reflect a pattern of black teachers 
(10.4 percent of the total) being concentrated in the 
district’s black schools.

3. Newburgh
The same pattern of racial separation, isolation and 

segregation is seen in Newburgh. While black pupils con­
stitute only 23 percent of the total enrollment, over half 
(57.4 percent) are in majority-black enrollment schools, 
with 33.2 percent in virtually all (90 to 100 percent) 
black schools.

Although the degree of racial segregation does 
appear to be slightly lower in New York than in Ohio, 
Illinois and Pennsylvania, it is by no means absent or 
insignificant. In addition to the systems mentioned, the 
HEW survey reflected varying degrees of racial segrega­
tion in the schools of Albany, Lackawanna, Niagara 
Falls, Niagara-Wheatfield, Utica and Monticello. On a 
statewide basis, black pupils constitute only 14.1 per­
cent of the enrollment, yet 67.7 percent of New York’s 
black pupils find themselves in predominantly black 
schools while fully 35.8 percent are in schools over 95 
percent black.



CALIFORNIA
1. Los Angeles
According to the HEW survey, the public schools of 

Los Angeles, as of the Fall of 1968, had a “white” enroll­
ment of 53.7 percent, a black enrollment of 22.6 percent, 
and a Spanish-American enrollment of 20 percent. The 
survey shows a remarkably high level of racial segrega­
tion. Fully 95 percent of the city’s black pupils were at­
tending schools which were over half minority enrollment 
while 83 percent were attending virtually all (90 to 100 
percent) minority enrollment schools. At the same time,
92.3 percent of the city’s white pupils were attending 
predominantly white schools and over half of the white 
students [53.6 percent were assigned to virtually all (90 
to 100 percent)] white schools. Once again the HEW 
survey reflects the fact that black teachers are concen­
trated in minority schools.

2. San Diego
San Diego similarly reflects high level of racial segre­

gation in its 155 schools. Black students, who constitute 
only 11.6 percent of the total enrollment, are segregated 
to such an extent that over half (54.6 percent) are in 
almost entirely (90 to 100 percent) minority schools 
while 74.8 percent are in predominantly minority schools. 
At the same time, the HEW survey shows that over 
half (54.8 percent) of the white students are in 90 to 
100 percent white schools with 97 percent of the white 
students being in majority-white schools. The recent HEW 
survey once again reflects the pattern of black teachers 
being assigned primarily to black schools.

3. Sequoia Union High School District
The HEW survey shows that Sequoia Union High



A13

School District operates 7 high schools with a total en­
rollment of 12,343 students of whom 1,351 (10.9 per­
cent) are black. The majority of these black students 
(64.4 percent) have been assigned to a particular school 
(Ravenswood High) which is over 90 percent black. The 
remainder are scattered in the six white schools. As a 
result, 99.3 percent of all white pupils are in majority- 
white schools and 63.9 percent of the white pupils are in 
schools virtually all (90 to 100 percent) white. The 
system employs 580 teachers of whom 17 (2.9 percent) 
are black. Eight of the seventeen black teachers are 
assigned to the black school (i.e., Ravenswood).

4. Fresno

Fresno has 58,234 pupils of whom 5,251 (9 percent) 
are black. Eighty-four percent of the black pupils are in 
predominantly minority schools and 76.6 percent are in 
virtually all (90 to 100 percent) minority schools. Ninety- 
three percent of the white pupils are in predominantly 
white schools with 39.8 percent of such white pupils 
being in virtually all (90 to 100 percent) white schools.

5. Compton City Elementary

The HEW survey shows that this district has 16,407 
pupils of whom 71.5 percent (11,725) are black. Of its 
20 schools, 3 are 100 percent black and 12 are in excess 
of 90 percent black. The bulk of the white pupils in the 
system have been permitted to escape to 3 predom­
inantly white schools. As a result, while 95.9 percent of 
black pupils are in majority-black schools, with fully
90.3 percent in virtually all (90 to 100 percent) minority 
schools, 77.7 percent of the white pupils attend predom­
inantly white schools.



A14

6. Monrovia Unified School District

This system has 7,118 students in its 10 schools, of 
whom 911 (12.8 percent) are black. Three hundred and 
thirty-four (36.6 percent) of the black pupils have been 
assigned to the all-black Huntington Elementary School, 
the rest being scattered among the 9 other schools. As a 
result, all white children attend majority-white schools 
with approximately 30 percent of the white pupils at­
tending schools having in excess of a 90 percent white 
enrollment. The district employs 277 teachers of whom 
14 (5.1 percent) are black. Five of the 14 black teach­
ers are assigned to the all-black Huntington Elementary 
School.

Of the California school districts covered by the HEW 
survey, it did appear that one school district at least 
approached what might be considered to be an integrated 
system. The Berkeley Unified School District had 16,204 
students during the Fall of 1968, with 6,917 (42.7 per­
cent) being black students. Of its 33 schools, only one 
special school was 100 percent black and only two were 
more than 85 percent white. The remaining 30 schools 
ranged from 21.7 to a 64.1 percent black enrollment. In 
general, however, the HEW survey established that racial 
segregation in the public schools of California was as pro­
nounced as it had been found to be in Ohio, Illinois and 
Pennsylvania.

NEW JERSEY

1. N e w a r k

The HEW survey indicates that as of the Fall of 1968 
Newark had 75,960 pupils of whom 54,757 (72.5 per­
cent) were black. Ninety-eight percent of these black



A15

pupils are in majority black schools with 86 percent 
attending virtually all (90 to 100 percent) black schools. 
A majority of the white pupils (59.1 percent) are per­
mitted to escape to the district’s 10 predominantly white 
schools.

2. Atlantic City
In the Fall of 1968, Atlantic City had 8,605 students 

in its 14 public schools. Black pupils, accounting for 62.3 
percent of the total, were assigned largely to the 8 black 
schools so that over half of the district’s black pupils were 
attending almost all (90 to 100 percent) black schools. 
At the same time, 84.8 percent of the white pupils were 
being permitted to attend the 5 predominantly white 
schools. Five of the 14 schools were 100 percent black 
and three other around the 70 percent level respecting 
black enrollment. The HEW survey once again reflected 
the pattern of concentrating the district’s black teachers 
in its black schools.

3. Camden City
Camden is another example of a majority black enroll­

ment district (58.9 percent) in which the bulk of the 
white minority (81 percent) is permitted to attend pre­
dominantly white schools. As a result, almost 60 percent 
of the black pupils attend virtually all (90 to 100 per­
cent) black schools.

4. Jersey City
The HEW survey indicated that Jersey City operated 

36 schools in the Fall of 1968 for 37,083 students. 
Forty-three percent of the total were black pupils, yet al­
most half (49.9 percent) of these black students were 
assigned to almost all (90 to 100 percent) black schools



A16

with 81.1 percent being assigned to majority-black 
schools. Once again, the survey reflected a concentration 
of black teachers (12.8 percent of the total faculty of 
the district) in the black schools.

5. Township of Union

According to the HEW survey, Union had 8,719 stu­
dents in the 10 schools it operated during the Fall of 
1968. Of this total, 986 (11.3 percent) were black. Three 
hundred and seventy of these black students (37.5 per­
cent) were assigned to the 94.9 percent black Jefferson 
school. One other school, Burnet Junior High, was 18.8 
percent black (221 black students) while each of the 
remaining 8 schools was over 90 percent white. As a re­
sult, 99.7 percent of the white pupils attended predom­
inantly white schools, with 87.2 percent attending vir­
tually all (90 to 100 percent) white schools. Of the dis­
trict’s 412 teachers, 16 (3.9 percent) were black. Ten of 
these 16 black teachers were assigned to Jefferson and 
Burnet.

Summing up the public schools of New Jersey, we see 
the same picture of pervasive racial segregation as is re­
flected by the HEW survey for Northern school systems 
generally. While the percentage of black public school 
pupils in New Jersey constitute only 14.9 percent of the 
total, the HEW survey shows that 66.1 percent of these 
black pupils are in predominantly black schools, with an 
amazing 32.8 percent being enrolled in schools which 
are over 95 percent black.

We have examined a few of the dual school systems of 
Ohio, Illinois, Pennsylvania, New York, California and 
New Jersey. The school districts mentioned are neither 
the most nor the least racially segregated districts of the



A17

Northern and Western States. Taking HEW’s own recent 
survey, we could add hundreds of pages going into the 
high level of racial segregation in such cities as Detroit 
(Michigan), Baltimore (Maryland), Milwaukee (Wis­
consin), St. Louis (Missouri), Kansas City (Missouri), 
Seattle (Washington), Portland (Oregon), Las Vegas 
(Nevada), Albuquerque (New Mexico), Omaha (Ne­
braska), Flint (Michigan), and Gary (Indiana) to men­
tion but a few. The point is that the federal government’s 
own survey shows a very high degree of nation-wide racial 
separation (with 61 percent of all black pupils in virtually 
all black schools and only 23.4 percent in predominantly 
white schools), and it is eminently reasonable to complain 
when the federal government’s educationally disruptive 
and destructive attack upon this pervasive racial separa­
tion throughout the Nation is limited to one geographic 
region of the Nation as a scapegoat.