Bradley v. State Board of Education of Virginia Petition for a Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit
Public Court Documents
January 1, 1972
Cite this item
-
Brief Collection, LDF Court Filings. Bradley v. State Board of Education of Virginia Petition for a Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit, 1972. bd0c9fa8-ca9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/9e37f6c9-58b8-4dc2-9ce2-473ffede6aa0/bradley-v-state-board-of-education-of-virginia-petition-for-a-writ-of-certiorari-to-the-united-states-court-of-appeals-for-the-fourth-circuit. Accessed November 29, 2025.
Copied!
1st t h e
g>tfpr£nt£ (Emtri nf % Inttefc States
O ctober T e r m , 1972
No. 72-.......
Carolyn B radley , et al.,
vs.
Petitioners,
T h e S tate B oard of E ducation of t h e
C o m m o n w e a l t h of V ir g in ia , et al.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
J a ck G r een berg
J a m es M. N a brit , III
N orm an J . C h a c h k in
10 Columbus Circle
New York, New York 10019
Louis R. L ucas
525 Commerce Title Building
Memphis, Tennessee 38103
W il l ia m L. T aylor
Catholic University Law School
Washington, D.C.
J a m es R. Ol p h in
214 East Clay Street
Richmond, Virginia 23219
M. R a l p h P age
420 North First Street
Richmond, Virginia 23219
A n t h o n y G. A m sterdam
Stanford University Law School
Stanford, California 94305
Attorneys for Petitioners
I N D E X
PAGE
Opinions Below...................... -....................................... 1
Jurisdiction ....................................................-............... 3
Question Presented........................................... -........... - 4
Constitutional and Statutory Provisions Involved....... 4
Statement ..........—.............................................-............ 5
A. Background of the Litigation: School Segre
gation and Desegregation in Virginia .............. 5
B. The Greater Richmond Community................. 15
1. Schools in the Community .......................... 18
2. Changing Internal Demography................. 21
C. The Litigation Below ............................................. 26
1. Prior Proceedings ..................... -................. 26
2. Proceedings on the 1170 Motions for Fur
ther Relief .................................................... 27
3. Conditions at the Time the District Court
Rendered Its Judgment................................ 34
4. The District Court’s Ruling.................... —- 36
Reasons for Granting the Writ ........................ —........ 40
I. The Fourth Circuit’s Decision Balkanizing
Brown v. Board of Education Is of Grave and
Widespread Importance Because It Broadly
Denies the Promise of Brown to the Children
of the Metropolitan Ghetto ................................ 46
11
PAGE
A. The Fourth Circuit Essentially Confines Fed
eral Court Eemedies for Unconstitutional
School Segregation Within the Limits of In
dividual School District Boundary Lines..... 46
B. The Decision Critically Impairs the Powers
of the Federal Courts to Do the Vital and
Difficult Job of Desegregating the Schools of
the Nation’s Metropolitan Ghettos ................ 54
II. Questions Raised by the Fourth Circuit’s Deci
sion Require Authoritative Resolution by This
Court, for the Guidance of the Lower Courts in
Numerous Cases ................. 64
A. The Decision Conflicts With Decisions in
Other Circuits ................................................ 64
B. The Decision Has Immediate Implications for
the Efficient Conduct of Litigation Pending
in Seven Circuits.......................... 65
III. This Case Presents an Excellent Opportunity
for the Court to Consider, and to Guide the
Lower Courts in Consideration of, the Question
of Multi-District Desegregation Decrees in the
Metropolitan Context....... ....................... 67
IV. The Fourth Circuit’s Decision Departs From
Settled Principles and Calls Into Question Doc
trines That Are Indispensable Safeguards of
the Right of Racial Equality ............ ................ 74
Ill
PAGE
A. The Decision, Focusing Only Upon Individual
School Districts, Ignores the Affirmative Ob
ligation of the State to Comply With the
Commands of the Fourteenth Amendment
and of Brown v. Board of Education ........ . 74
B. The Court’s Extension of the Tenth Amend
ment Into Conflict With the Fourteenth Dis
turbs Established Law .............................. . 77
C. The Court Reintroduces Into the Law of the
Fourteenth Amendment a Test of Invidious
“Motivation” or “Purpose,” Which This
Court and the Lower Courts Have Rejected
in Related Contexts as Inadequate to Protect
the Right of Equality ................................... 80
D. The Decision Unduly Curbs the Vital Power
of the Federal Courts to Remedy Unconstitu
tional School Segregation, and Trammels the
Traditional Flexibility of Equitable Relief
That Was Reconfirmed in School Cases by
Swann .................................. .......................... 83
C o n c lu sio n ........................................................................................... 88
T able op A u t h o r it ie s
Cases:
Adkins v. School Bd. of Newport News, 148 F. Supp.
430 (E.D. Va.), affd 246 F.2d 325 (4th Cir.) cert.
denied, 355 U.S. 855 (1957) ................ ................... 10,12n
Alexander v. Holmes County Bd. of Educ., 396 U.S. 19
(1969) ............................................................ 28n, 42n, 53n
Allen v. County School Bd. of Prince Edward County,
207 F. Supp. 349 (E.D. Va. 1962) ............................ 6n
IV
PAGE
Arthur v. Nyquist, Civ. No. 1972-325 (W.D. N.Y.) .... 66n
Atkin v. Kansas, 191 U.S. 207 (1903) ........................ 79n
Baker v. Carr, 369 U.S. 186 (1962) ...... ..................... 78n
Board of Supervisors v. County School Bel., 182 Ya.
266, 28 S.E.2d 698 (1944) ......... ................ ............. 6
Bradley v. Milliken, C.A. No. 35257 (U.S.D.C., E.D.
Mich.), on appeal, No. 72-8002 (6th Cir.) ........... ...... 64n
Bradley v. Milliken, 338 F. Supp. 582 (E.D. Mich.
4971) .... -........- ------------ —-...... - - -------- 61n, 64n
Bradley v. School Bd. of Bichmond, 382 U.S. 103
(1965) ........ ....................... ......... .... .........................5n, 26
Bradley v. School Bd. of Bichmond, 462 F.2d 1058 (4th
Cir. 1972) ______ _____________ ___ _____ _ 3
Bradley v. School Bd. of Bichmond, 456 F.2d 6 (1972) 3
Bradley v. School Bd. of Bichmond, 345 F.2d 310 (4th
Cir. 1965), rev’d 382 U.S. 103 (1965) ...............3,12n, 26
Bradley v. School Bd. of Bichmond, 317 F.2d 429 (4th
Cir- 1963) ..--- -------------------------- -------- ------- ----3, 26
Bradley v. School Bd. of Bichmond, 338 F. Supp. 67
(E.D. Va. 1972) ----- ------ ----- ---- ------ --- ----- -passim
Bradley v. School Bd. of Bichmond, 325 F. Supp. 828
(E.D. Va. 1971) ............................. .......... .....3 , 29n, 34
Bradley v. School Bd. of Bichmond, 324 F. Supp. 456
(E.D. Ya. 1971) ...... ............. .............. ..... ......... ....... 3
Bradley v. School Board of Bichmond, 324 F Supp
439 (1971) - .......................-......-....-...... .......... .........2, 32n
Bradley v. School Board of Bichmond, 324 F Supp
401 (1971) .................. .......-.... -............................ —2, 32n
Bradley v. School Board of Bichmond, 324 F Supp
396 (1971) ........................ .................... ............. .... _.2,32n
Bradley v. School Bd. of Bichmond, 51 F.B.D. 139
(E.D. Ya. 1970) ......... ........................................ 2,30,31
V
PAGE
Bradley v. School Bd. of Richmond, 317 F. Supp. 555
(E.D. Va. 1970) ......................................................... 2
Brinkman v. Gilligan, Civ. No. 72-137 (S.D. Ohio) ..... 66n
Broughton v. Pensacola, 93 U.S. 266 (1876) .............. 79n
Brown v. Bd. of Educ., 349 U.S. 294 (1955) ..............passim
Brown v. Bd. of Educ., 347 U.S. 483 (1954) ..........passim
Brown v. Swann, 35 U.S. (10 Pet.) 497 (1836) .......... 84n
Calhoun v. Cook, 451 F.2d 583 (5th Cir. 1971) „..61n, 64n
Calhoun v. Cook, 430 F.2d 1174 (5th Cir. 1970) .......... 28n
Calhoun v. Cook, Civ. No. 6298 (N.D. Ga.) ............... . 66n
Calhoun v. Cook, 332 F. Supp. 804 (N.D. Ga. 1971) .... 64n
Camp v. Boyd, 229 U.S. 530 (1913) ............................ 84n
Carter v. West Feliciana Parish School Bd., 396 U.S.
290 (1970) ____ _____ ______ _____ _____ _____ 28n
Carson v. Warlick, 238 F.2d 724 (4th Cir. 1956), cert.
denied 353 U.S. 910 (1957) ...... ............... ................. 12n
Cassell v. Texas, 339 U.S. 282 (1950) _________ __ 81
Chance v. Board of Examiners, 458 F.2d 1167 (2d Cir.
1972) __ ___ _____ ____ _________ ____ _______ 81
Cisneros v. Corpus Christi Independent School Dish,
No. 71-2397 (5th Cir., Aug. 2, 1972) ........ .............. . 81n
City of Richmond v. Deans, 281 U.S. 704 (1930) 24n
Comanche County v. Lewis, 133 U.S. 198 (1890) ...... 79
Cooper v. Aaron, 358 U.S. 1 (1958) ......................... . 75
County School Bd. of Prince Edward County v. Griffin,
204 Va. 650, 133 S.E,2d 565 (1963) ................... .....9n, 11
Crawford v. Board of Educ. of Los Angeles, No. 822-
854 (Super. Ct. Cal., Jan. 11,1970) ..... ........ ............ . 61n
Davis v. Board of School Commr’s, 402 U.S. 33 (1971)
37n, 40n, 51n, 54n,
62n, 83n, 85n, 86n
V I
PAGE
Direction der Disconto-Gesellschaft v. United States
Steel Corp., 267 U.S. 22 (1925) ................................ 41n
Evans v. Buchanan, Civ, No. 1816 (D. Del.) ................. 66n
Ford Motor Co. v. United States, 405 U.S. 562 (1972) 84n
Franklin v. Quitman County Bd. of Educ., 288 F. Supp.
509 (N.D. Miss. 1968) .................................................. 76n
Gaston County v. United States, 395 U.S. 285 (1969) .. 25n
Gomillion v. Lightfoot, 364 U.S. 339 (1960) ...... 79n, 80, 81
Graham v. Folsom, 300 U.S. 248 (1906) ..................... 78n
Green v. County School .Bd., Va., 391 U.S. 430 (1968)
5n, 14, 27, 40n, 53n, 54n,
62n, 82n, 85n
Green v. School Bd. of Roanoke 304 F.2d 118 (4th Cir.
19(32) ........................................................................... 12n
Griffin v. County School Bd. of Prince Edward County,
377 U.S. 218 (1964) ............................ 5n, 6n, 11, 75n, 76n
Griffin v. State Bd. of Educ., 296 F. Supp. 1178 (E.D.
Va. 1969) ............... l ln
Griggs v. Duke Power Co., 401 U.S. 424 (1971) ...... 25n, 81
Hall v. St. Helena Parish School Bd., 197 F. Supp. 649
(E.D. La. 1961) (three-judge court), aff’d 368 U.S.
515 (1962) ..... 76n
Haney v. County Bd. of Educ., 429 F.2d 364 (8th Cir.
1970) _....65n, 68n
Haney v. County Bd. of Educ., 410 F.2d 920 (8th Cir.
1969) 65n,68n,79n
Harrison v. Day, 200 Va. 439, 106 S.E.2d 636 (1959) .. 9n
Hawkins v. Town of Shaw, 461 F.2d 1171 (5th Cir.
1972) ........................................................................... 81
Haycraft v. Board of Educ., Civ. No. 7291-G (W.D.
Ky-) ...................................................................... 66n
Vll
PAGE
Hecht Co. v. Bowles, 321 U.S. 321 (1944) ............ ....... 84n
Henry v. Clarksdale Municipal Separate School Dist.,
433 F.2d 387 (5th Cir. 1970) ........... ............... ............ 69n
Higgins v. Grand Rapids Bd. of Edue., Civ. No. 6389
(W.l). Mich.) ....... ................................................... . 66n
Hobson v. Hansen, 269 F. Supp. 401 (D.D.C. 1967)
afPd sub nom. Smuck v. Hobson, 408 F,2d 175 (D.C.
Cir. 1969) ........................................ -..............-..... . 81
Hunter v. Pittsburgh, 207 U.S. 161 (1907) ...... .......78, 79
James v. Almond, 170 F. Supp. 331 (E.D. Ya.) appeal
dismissed, 359 U.S. 1006 (1959) ........ .............. ......... 9n
Jones v. School Bd. of Alexandria, 278 F.2d 72 (4th
Cir. 1960) ............ .......... ..... ........................... ........... 12n
Kennedy Park Homes Assn., Inc. v. City of Lacka
wanna, 436 F.2d 108 (2d Cir. 1970) ........... ............. 81
Lee v. Macon County Bd. of Educ., 448 F.2d 746 (5th
Cir. 1971), 455 F.2d 978 (5th Cir. 1972) ................. 65n
Lee v. Macon County Bd. of Educ., 267 F. Supp. 458,
aff’d sub nom. Wallace v. United States, 389 U.S.
215 (1967) ....... ................ .................. -.......... 13n, 76n
Louisiana v. United States, 380 U.S. 145 (1965) ........ 86
Loving v. Virginia, 388 U.S. 1 (1967) — ................... 87n
Lumpkin v. Dempsey, Civ. No. 13,716 (D. Conn., Jan.
22, 1971) ........ ........................-.................... ............. 66n
McLaughlin v. Florida, 379 U.S. 184 (1964) .............. 87n
McLeod v. County School Bd. of Chesterfield County,
Civ. No. 3431 (E.D. Va.) ............................. .......- .... 19n
McNeese v. Board of Educ., 373 U.S. 668 (1963) ...... 12n
Mobile v. Watson, 116 U.S. 289 (1886) ....... ................. 79n
Morgan v. Hennigan, Civ. No. 72-911-G (D. Mass.) .... 66n
Mount Pleasant v. Beckwith, 100 U.S. 514 (1879) ...... 79n
V l l l
PAGE
N.A.A.C.P. v. Patty, 159 F. Supp. 503 (E.D. Ya. 1968),
rev’d on other grounds sub nom. Harrison v.
N.A.A.C.P., 360 U.S. 167 (1959) .......................... .....23n
North Carolina State Board of Educ. v. Swann, 402
U.S. 43 (1971) .................................... ..........54n, 62n, 68n
Northcross v. Board of Educ. of Memphis, Civ. No.
3931 (W.D. Tenn., Dec. 10, 1971), afPd No. 72-1630
(6th Cir., Aug*. 29, 1972) ................. ......................... 26n
Palmer v. Thompson, 403 U.S. 217 (1971) ..................... 81
Reynolds v. Sims, 377 U.S. 533 (1964) .................. ...... 79n
Robinson v. Shelby County Bd. of Educ., 330 F. Supp.
837 (W.D. Tenn. 1971), order aff’d 6th Cir., No.
71-1966 (Sept. 21, 1972) ................. ......................... 65n
Shapleigh v. San Angelo, 167 U.S. 646 (1897) .............. 79
Spangler v. Pasadena City Bd. of Educ., 311 F. Supp.
501 (C.D. Cal. 1970), order denying intervention of
additional parties aff’d, 427 F.2d 1352 (9th Cir.
1970) .................................. ................ ...................... 61 n
Swann v. Charlotte-Mecklenburg Bd. of Educ., 402
U.S. 1 (1971) ........................................................passim
Swann v. Charlotte-Mecklenburg Bd. of Educ., 431
F.2d 138 (4th Cir. 1970), rev’d 402 U.S. 1 (1971) ....... 28
Taylor v. Coahoma County School Dist., 330 F. Supp.
174 (N.D. Miss.), aff’d 444 F.2d 221 (5th Cir 1971) .. 65n
Thompson v. County School Bd. of Hanover County,
252 F. Supp. 546 (E.D. Va. 1966) ............................. 22n
Turner v. Fouche, 396 U.S. 346 (1970) ......................... 81
United States v. Armour & Co., 402 U.S. 673 (1971) .... 85n
United States v. Board of Educ. of Baldwin County,
423 F.2d 1013 (5th Cir. 1970) ................................... 38n
IX
PAGE
United States v. Board of School Comm’rs, 332 F.
Supp. 655 (S.D. Ind. 1971), mandamus denied, No.
72-1063 (7th Cir., Feb. 2, 1972), cert, denied, 32 L.ed.
2d 805 (1972) ................................................ .......62n,66n
United States v. Crescent Amusement Co., 323 U.S. 173
(1944) .......................................................................... 85n
United States v. Georgia, Civ. No. 12972 (N.D. Ga.,
Dec. 17, 1969), rev’d on other grounds, 428 F.2d 377
(5th Cir. 1970) __________ _______ __________ _ 13n
United States v. Jefferson County Bd. of Educ., 372
F.2d 836 (5th Cir. 1966); on rehearing' en banc, 380
F.2d 385 (5th Cir. 1967) .......... ................................ 75
United States v. Loew’s, Inc., 371 U.S. 38 (1962) ___ 85n
United States v. Paramount Pictures, Inc., 334 U.S. 131
(1948) .................................... ..................-________ 85n
United States v. School Dist. No. 151, 286 F. Supp.
786 (N.D. 111. 1967), aff’d 404 F.2d 1125 (7th Cir.
1968), on remand, 301 F. Supp. 201 (N.D. 111. 1969) ..61n
United States v. Scotland Neck City Bd. of Educ., 33
L.ed.2d 75 (1972) .................................................. 79n, 83
United States v. Texas, 321 F. Supp. 1043 (E.D. Tex.
1970), 330 F. Supp. 235 (E.D. Tex.), supplemental
order of April 19, 1971 (unreported), modified and
aff’d 447 F.2d 441 (5th Cir.), stay denied, 404 U.S.
1206 (1971) (Mr. Justice Black, Circuit Justice),
cert, denied, 404 U.S. 1016 (1972) ...... .......13n, 65n, 76n
United States v. United Shoe Machinery Corp., 391
U.S. 244 (1968) ......... ................................ .............. 85n
United States v. United States Gypsum Co., 340 U.S.
76 (1950) .............- .................................................... 85n
Wheeler v. Durham City Bd. of Educ., Civ. No. C-54-
D-60 (M.D. N.C.) ........ ..................... .................. .... 66n
Wright v. Council of the City of Emporia, 33 L.ed.2d
51 (1972) ................... ................... 5n, 7n, 67, 76n, 79n, 83
X
Statutes .* PAGE
28 U.S.C. § 2281 ..... . 32n
Rule 19, F.R.C.P. ....... ..................... ................................... 29
Virginia Constitution of 1971, Art. V III, §§ 1 -7 ........... 4
Virginia Constitution of 1902, §§ 129, 130, 132, 133 .... 4
Va. Code Anno. §§ 22-1, -2, -7, -30, -34, -100.1 through
-100.12 (Repl. 1969) ....................................................... 4
Va. Code Anno. §§ 22-1.1, -2, -7, -21.2, -30, -32, -100.1,
-100.3 through -100.11, -126.1, -127 (Supp. 1972) ..4, 39, 67n
Va. Code Anno. §22-188.51 (Repl. 1969) ....................... 9n
Va, Acts 1956, Ex. Sess., ch. 68, p. 69, 1 Race Rel. L.
Rep. 1103 .................................................................. 9
Va, Acts 1956, S.J.R. 3, p. 1213, 1 Race Rel. L. Rep.
445 ..................... 9
Other Authorities:
[1972] Ayer Directory of P ublications ....................... 73n
117 Cong. Rec. S17516-S17518 (daily ed., Nov. 3, 1971) 60n
Hearings Before the Senate Select Committee on Equal
Educational Opportunity, 92d Cong., 1st Sess., on
Equal Educational Opportunity, Part 21, Metropoli
tan Aspects of Educational Inequality (Nov. 22, 23,
30, 1971), 10913 ................................... ....... .......... ....... 58n
National Advisory Commission on Civil Disorders,
Report (G.P.O. 1968 0-291-729) (1968) .......55n, 56n, 59n,
60n,63n
Note, Merging Urban and Suburban School School
Systems, 60 Geo L. J. 1279 (1972) ............................... 66n
Riven & Cloward, Regulating the P oor (1971) ........... 56n
Rand, McNally & Co., [1972] Commercial Atlas &
Marketing Guide ................................................. 72n
SI
PAGE
K. Taeuber and A. Taeuber, N egroes in C it ie s (1965)- 25n
United States Bureau of the Budget, Office of Statis
tical Standards, S tandard M etro po lita n S tatistical
A reas (1967) ..................................................-.........— 55n
United States Comm’n on Civil Rights, 1 R e p o r t :
R acial I solation in t h e P u b lic S chools (G.P.O.
1967 0-243-637) (1967) ........................... ......57n, 62n, 63n
U .S . C om m ’n o n Civil Rights, S urvey o f S chool De
segregation in t h e S o u t h e r n and B order S tates
1965-1966 (1966) ..................................................... 12n
U.S. Comm’n on Civil Rights, C iv il R ig h t s , U.S.A.
— P u b lic S chools, S o u t h e r n S tates (1962) .......... 12n
United States Dep’t of Commerce, Bureau of the Cen
sus, Ce n s u s T racts, C e n s u s of P o pu la tio n and
H o u sin g , Richmond, Va. SMSA (PHC(1)-173)
(1972) ......................................................................... 72n
United States Dep’t of Commerce, Bureau of the Cen
sus, Ce n s u s of P o p u l a t io n : 1970 (G.P.O. PCH(2)-48
1971) .................................................................. -........ 21n
United States Dep’t of Commerce, Bureau of the Cen
sus, C e n s u s of P o pu la tio n : 1970 (G.P.O. PC(1)-B48,
October 1971) ............................................ .............. - 58n
United States Dep’t of Commerce, Bureau of the Cen
sus, 5 Ce n s u s of G o v e r n m e n t s : 1967 (1968) ---- --- 61n
United States Dep’t of Commerce, Bureau of the Cen
sus, I Ce n s u s of P o p u l a t io n : 1960 (G.P.O. 1961) .... 58n
United States Dep’t of Commerce, Bureau of the Cen
sus, II C e n su s of P o p u l a t io n : 1950 (G.P.O. 1952) .... 58n
I n t h e
Olourt xti lUmttb States
O ctober T e r m , 1972
No. 72-......
Carolyn B radley , et al.,
vs.
Petitioners,
T h e S tate B oard of E ducation of t h e
C o m m o n w ea lth of V ir g in ia , et al.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Petitioners pray that a writ of certiorari issue to review
the judgment and decision of the United States Court of
Appeals for the Fourth Circuit, entered in the above-
captioned matter on June 5, 1972.
Opinions Below
The opinions of the Court of Appeals for the Fourth Cir
cuit are reported at 462 F.2d 1058* and are reprinted at pp.
557-602 of the Appendix to the Petition for Writ of Cer
tiorari seeking review of this judgment filed in this Court by
the School Board of the City of Richmond, Virginia, et al.,
as petitioners.1 The opinion of the United States District
* Parallel citations are given within this Petition only for the
district court opinion, however, since the advance sheet containing
the Court of Appeals’ opinion was received on the day of printing.
1 Citations throughout this Petition in the form “A.—” refer to
the separate appendix of opinions below and relevant state statutes
filed by the Richmond School Board in connection with its petition.
The transcript of the August-September, 1971 hearings on the
2
Court for the Eastern District of Virginia of January 5,
1972, and its implementing order of January 10,1972, which
was reversed by the Court of Appeals, are reported at
338 F. Supp. 67 and are reprinted in the same Appendix
at pp. 164-545.
Other opinions and orders of the Courts below related to
this litigation are reported or reprinted as follows:
1. District court opinion and order entered August 17,
1970, approving interim plan of desegregation for Rich
mond, reported at 317 F. Supp. 555 and reprinted at A. 1-47.
2. District court opinion and order entered December 5,
1970, granting motion for joinder of additional parties de
fendant and directing the filing of an amended complaint,
reported at 51 F.R.D. 139 and reprinted at A. 48-57.
3. District court opinion of January 8, 1971 denying mo
tion to recuse, reported at 324 F. Supp. 439 and reprinted
at A. 58-90.
4. Unreported district court order of January 8, 1971,
as entered nunc pro tunc January 13, 1971, on pre-trial
motions, reprinted at A. 91-93.
5. Unreported district court order of January 13, 1971
on additional pre-trial motions, reprinted at A. 94-97.
6. District court opinion and order entered February
10, 1971, declining to convene three-judge court, reported
at 324 F. Supp. 396 and reprinted at A. 98-106.
7. District court opinion and order entered February 10,
1971 denying motion to dismiss as to certain defendants in
issues raised by joinder of the state and county defendants will be
cited by individual volume letter designation, e.g., “Tr. A-10.”
Transcripts of earlier hearings are consecutively paginated and
will be cited by date, e.g., “Tr. 8/8/70 102.” Exhibit references are
to the August-September, 1971 hearings only.
3
their individual capacities, reported at 324 F. Supp. 401
and reprinted at A. 107-09.
8. District court opinion and order entered April 5,
1971 approving further desegregation plan for Richmond
schools, reported at 325 F. Supp. 828 and reprinted at
A. 110-55.
9. Unreported district court opinion and order entered
July 20, 1971 denying renewed motion to convene three-
judge court, reprinted at A. 156-62.
10. Unreported district court order entered September
15, 1971 denying evidentiary motion, reprinted at A. 163.
11. Unreported district court opinion and order issued
January 19, 1972 denying stay of January 10 order, re
printed at A. 546-52.
12. Court of Appeals order granting partial stay of dis
trict court decree, entered February 8, 1972, reported at
456 F.2d 6 and reprinted at A. 553-56.
13. Amended judgment of the Court of Appeals, en
tered August 14, 1972, reprinted at A. 603.
Other reported opinions in this case are as follows: 317
F.2d 429 (4th Cir. 1963); 345 F.2d 310 (4th Cir.), rev’d
382 U.S. 103 (1965); 324 F. Supp. 456 (E.D. Va. 1971).
Jurisdiction
The opinion of the Court of Appeals was entered June
5, 1972 and its amended judgment filed August 14, 1972.
On August 29, 1972, Mr. Justice Marshall extended the time
within which this Petition might be filed to and including
October 5, 1972. The jurisdiction of this Court is invoked
pursuant to 28 U.S.C. § 1254(1).
4
Question Presented
Is the constitutional power of a federal court to remedy
racial discrimination in the public schools confined within
the geographic boundary lines of a single State-created
school district in the absence of a showing of racial motiva
tion in the drawing of the district lines!
Constitutional and Statutory Provisions Involved
The case involves the Tenth Amendment to the Consti
tution of the United States, which reads as follows:
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.
This matter also involves the application of the Equal Pro
tection Clause of the Fourteenth Amendment to the Con
stitution of the United States, which provides as follows:
. . . nor shall any State . . . deny to any person within
its jurisdiction the equal protection of the laws.
Various provision of Virginia’s 1902 and 1971 Constitu
tions and statutes relating to education which are also rele
vant to this matter are set out in the separate Appendix
filed by the School Board of the City of Richmond (see n. 1
supra and accompanying text) at A. 604-23: Constitution of
1902, §§ 129, 130, 132, 133; Constitution of 1971, Art. VIII,
§§ 1-7; Va. Code Anno. §§ 22-1, -2, -7, -30, -34, -100.1 through
-100.12 (Repl. 1969); Va. Code Anno. §§ 22-1.1, -2, -7, -21.2,
-30, -32, -100.1, -100.3 through -100.11, -126.1, -127 (Supp.
1972).
5
Statement
A. B ackgrou n d o f the L itiga tion: School Segregation
and D esegregation in V irgin ia.
In Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S.
1, 5-6 (1971), describing the cases before it from North
Carolina, Georgia and Alabama, Mr. Chief Justice Burger
wrote for the Court that “ [t]his case and those argued with
it arose in states having a long history of maintaining two
sets of schools in a single system deliberately operated to
carry out a governmental policy to separate pupils in schools
solely on the basis of race . . . ” This matter, too, arises
in a State which has, historically and continuously, spared
no resource and left unexplored no ingenious device in its
effort to maintain segregation in education.2 This history
is important not only because, as in Swann, it points to the
continuity of judicial effort since Brown v. Board of Educa
tion, 347 U.S. 483 (1954) to devise and implement adequate
remedial steps to redress the unconstitutional state policy,
but also because the Court below—under the rubric of the
Tenth Amendment—attributed to the Commonwealth of
Virginia a policy of individual school district sanctity (to
which the Court of Appeals said the federal remedial power
must defer) that examination of this history makes appar
ent does not exist and never has existed.
Virginia’s public schools were, at the outset, entirely
local in character and operation. The earliest education
statute of the Commonwealth (1797) merely authorized
county officials to construct and operate schools with reven-
2 This Court has decided as many cases involving public school
desegregation arising in Virginia as in any other state. A Virginia
case was one of those decided with Brown; and see Griffin v. County
School Bd., 377 U.S. 218 (1964) ; Bradley v. School Bd., 382 U.S.
103 (1965); Green v. County School Bd., 391 U.S. 430 (1968);
W right v. Council of the City of Emporia, 33 L.ed.2d 51 (1972).
6
ues from comity taxes. Not until 1869 did the Virginia Con
stitution and laws create “school districts” and require the
establishment of a State-wide public school system. See
Board of Supervisors v. County School Bd., 182 Va. 266,
268-69, 275, 28 S.E.2d 698, 699, 702 (1944). At the same
time, however, a policy of segregation in the public schools
was adopted and enforced on a State-wide basis.3 The ac
tions of Virginia officials, including state educational au
thorities, make manifest the hierarchy of values when the
two policies—localism and segregation—were in conflict.
For example, the State Board of Education4 did not avail
itself of its authority to consolidate6 separate school dis-
3 In 1954, the Virginia Attorney General told this Court that:
In general, education in Virginia has operated in the past pur
suant to a single plan centrally controlled with regard to the
segregation of the races. (Brief for Appellees in No. 3, Davis
v. County School Bd., O.T. 1954, at p. 15.)
4 The State Board of Education has the responsibility for the
general supervision of education throughout the Commonwealth.
Among its specific powers, it prescribes the qualifications for divi
sion superintendents, who are to be appointed by the local school
boards from a list of eligible persons certified by the State Board,
and who receive a salary not less than a minimum established by
State law and toward which the State contributes a fixed propor
tion. If a local board fails to appoint its Superintendent within a
specified time after a vacancy occurs, the State Board designates
that officer; the current Chesterfield Superintendent was so ap
pointed by State authorities. The State Board also prescribes rules
and regulations governing the operation of high schools, examines
and certifies teachers and selects textbooks. The ultimate central
authority for public education in Virginia has received judicial
recognition; in 1962 a federal district court held the public schools
within Prince Edward County were “primarily administered on a
statewide basis. A large percentage of the school operating funds
is received from the state. The curriculums, school textbooks, mini
mum teachers salaries, and many other school procedures are gov
erned by state law . . . . ” Allen v. County School Bd., 207 F.
Supp. 349, 354 (E.D. Va. 1962). See also, Griffin v. County School
Bd., supra.
6 This power was removed from the State Board of Education by
the 1971 General Assembly of Virginia, in the course of this law
suit. See pp. 32-33 infra, text at note 53.
7
tricts into single school divisions (which would at least
share the same Superintendent and might then merge their
operations6 under a single school board) despite avowed
State policy favoring consolidation;7 almost without excep
tion, the State Board joined only consenting districts at
their request. On the other hand, state authorities actively
endorsed and facilitated the establishment and operation of
joint schools for blacks which drew their students from
within several separate school districts and over distances
which sometimes required the black children to board at
the school during the week.8 With the express sanction of
6 The expectation of joint operation which flowed from being
named a single school division is well illustrated by the history of
W right v. Council of the City of Emporia, 33 L.ed.2d 51, 57, 59
(1972). There, after Emporia became a second-class city, politically
independent of Greensville County, the city and county w7ere desig
nated a single school division by the State Board of Education and
continued to operate their schools together until after entry of an
effective desegregation order. In 1969, when the city attempted to
operate its own school system, it also sought separate school division
status from the State Board even though this was not required
under State law.
7 In 1922 the General Assembly abolished the prior system of
separate school districts congruent with magisterial (county sub
unit) districts following the recommendation of the State Superin
tendent of Public Instruction that this be done in order to eliminate
“ [pjurely artificial differences” among the various districts. A n
nual Report of the State Superintendent, 1917-18, p. 14. (PX 124)
The State Board of Education has consistently supported consoli
dation into larger operating units. In 1969, the Board said:
The State Board, therefore, has favored in principle the con
solidation of school divisions with the view to creating admin
istrative units appropriate to modern educational needs. The
Board regrets the trend to the contrary, pursuant to which
some counties and newly formed cities have sought separate
divisional status based on political boundary lines which do
not necessarily conform to educational needs. (RSBX 82)
8 For example, $75,000 in state vocational funds was allocated to
assist in the establishment of the Carver High School for black stu
dents from Culpeper, Madison, Orange, Green and Rappahannock
Counties—a multi-county “school district” of over 1338 square
8
state authorities, county school systems before and after
Brown sent their black resident pupils to other school dis-
districts (including one in West Virginia) and paid tuition
for them.9 Indeed, the State Superintendent of Public In
struction advised local districts ten days after the Brown
decision to continue their existing method of operation in
each locality, apparently without regard to the decisions.
Immediately after the decision in Brown v. Board of
Educ., 349 U.S. 294 (1955), the General Assembly of Vir
ginia restructured control of education in the Common
wealth, subjecting all phases of school operation to central
ized control and direction in an effort to maintain pupil
miles. Detailed regulations for the operation of such facilities were
adopted by the State Board of Education in 1946. The State De
partment of Education assisted in developing transportation sys
tems for these schools and otherwise facilitated their segregated
functioning. In the district court’s detailed findings of fact (A°352-
56; 338 F. Supp., at 155-57), evidence concerning half a dozen
such “joint schools” is summarized: Pulaski-Radford-Montgomery,
Christiansburg Institute, Manassas (Prince William, Fairfax, Fau
quier),^ Charlottesville-Albemarle, Lancaster-Northumberland, and
Rockbridge-Lexington. Some of these schools did not close as seg
regated institutions until 1966, 1967 and 1968, respectively.
9 Voluminous data concerning the shuffling of black students from
one school system to another is summarized in the district court’s
detailed findings of fact (at A. 360-64; 338 F. Supp., at 159-61).
Some examples follow:
Federick County black students attended high school in the
separate Winchester city system.
Until 1964-65, black Dixon County students attended high
school in Russell County.
From 1955 until 1965 black pupils of Bland County were edu
cated in Tazewell County schools.
From 1945 to 1965 Bath County blacks attended Alleghany
County schools.
Between 1941 and 1971, Chesterfield County sent 6,806 pupils to
Richmond or Petersburg schools, in addition to any transfers under
the tuition grant programs; between 1960 and 1971, a total of 14,522
Richmond students similarly attended other public systems (mostly
as a result of annexations).
9
segregation. (See Virginia’s interposition resolution, Va.
Acts 1956, S.J.R. 3, p. 1213, 1 Race Eel. L. Rep. 445). In
1956 the Governor was authorized to close any school which
was integrated, Va. Acts 1956, Ex. Sess., ch. 68, p. 69, 1
Race Rel. L. Rep. 1103.10 At the same time, the State Pupil
Placement Board was established as an independent state
body with plenary power over the assignment of all school-
children in the Commonwealth ;n it continued in existence
until 1968.12 The State Department of Education dissemi
nated information concerning Pupil Placement Board pro
cedures to local school officials, and its employees also
served the Board. These and other devices effectively pre
vented any local school districts from voluntarily under
taking desegregation in accordance with Brown, and re
stricted the elimination of segregation to those school dis
tricts involved in federal court litigation where compliance
10 In 1958 the Governor ordered the State Police to close six
schools in Norfolk to prevent the admission of 17 black students.
The statutes were declared to be in conflict with the Virginia Con
stitution in Harrison v. Day, 200 Va. 439, 106 S.E.2d 636 (1959).
(Thereupon, local boards were authorized to close schools to which
any federal or state troops, military or civil, were sent. Va. Code
Ann. §22-188.51 (Repl. 1969)). A reading of Harrison v. Day
together with School Bd. of Prince Edward County v. Griffin, 204
Va. 650, 133 S.E.2d 565 (1963) makes clear that the defect under
the state constitution was not the exercise of State power to keep
local schools segregated, but only the State’s assumption of an ulti
mate power to discontinue local schooling entirely. Compare James
v. Almond, 170 P. Supp. 331 (E.D. Va.), appeal dismissed, 359 U.S.
1006 (1959).
11 A December 29, 1956 telegram from the Pupil Placement Board
to then Chesterfield County Superintendent of Schools Fred D.
Thompson began: “Under the provisions of Chapter 70, Acts of
Assembly, extra session of 1956, effective December 29, 1956, the
power of enrollment or placement of pupils in all public schools of
Virginia is vested in the Pupil Placement Board. The local school
hoard, Division Superintendents, are divested of all such powers”
(emphasis supplied) (Tr. F-105-06; PX 122).
12 Evidence introduced at the trial of this case indicated the
recognition of State authorities that the Pupil Placement Board
was merely a device to prevent school integration (PX 144-F).
10
with state procedures had been enjoined or declared un
constitutional. See, G.g., Adkins v. School Bd. of Newport
News, 148 F. Supp. 430 (E.D. Va.), aff’d 246 F.2d 325 (4th
Cir.), cert, denied, 355 U.S. 855 (1957).
When the devices of extreme centralization represented
by the school closing and pupil assignment laws failed to
prevent desegregation, Virginia accepted the inevitability
of some integrated education but did all within its means
to minimize the amount. A combination of centralist and
localist policies was designed, fluctuating from time to time
in whatever manner seemed to promise the most successful
avoidance of Brown. Thus, althoug'h pupil assignment
powers were returned in 1961 to local boards, criteria es
sentially identical to those of the Pupil Placement Board
(which dealt explicitly with race) were promulgated by the
State Board of Education. At the same time, the resources
of the State were made available to school districts for the
purpose of perpetuating segregation: they received assis
tance in designing transportation systems to serve segre
gated schools,13 legal aid in resisting desegregation litiga
tion, and loans and grants of State funds to construct and
operate additional segregated schools either within existing
districts or as joint facilities for black students in several
districts. State officials continued to urge defiance of this
Court’s mandates and set the pattern by their own activ
ities, as when the Department of Education continued segre
gated meetings of state-wide educational personnel until
1965.14
At the local level, the new tolerance allowed local school
boards—coming only two years after the State had closed
13 In 1963, the State Department of Education drew segregated
bus routes—some as long as 20 miles each way—at the request of
Henrico officials.
14 A. 265; 338 F. Supp. at 116; PX 122; RSBX 83.
11
tlie schools rather than allow them to open on an inte
grated basis—was demonstrated in Prince Edward County.
When Prince Edward elected to end its public school
system rather than desegregate, Virginia’s constitution
was interpreted by the State courts to allow such closure
notwithstanding a constitutional provision requiring the
establishment of a system of free public schools. See
County School Bd. v. Griffin, supra; Griffin v. County
School Bd., supra.
State authorities continued to function in support of
segregation, however. In Prince Edward, they softened
the blow by distributing tuition grants, at least to white
students, thereby enabling pupils to attend either private
schools or public schools in other divisions untainted by
desegregation. The tuition grant lawT that made this pos
sible was originally adopted by the 1956 legislature which
passed the school closing laws; in 1958 the State Board
of Education issued regulations to implement the statute
which provided reimbursement for tuition paid in order
to attend another school division if the pupil were as
signed to an integrated school or one which had been
closed by order of the Governor. The State Department
of Education reimbursed localities for the State’s share of
the grant.16 The program was expanded in 1960 (when
the statute was amended) to include payments to private
schools.
The tuition grant system represents an admixture of
central state support and decentralized decision-making
16 Until its termination in 1970, see Griffin v. State Bd. of Educ.,
296 F. Supp. 1178 (B.D. Va. 1969) (three-judge court), state and
local agencies expended almost $25 million under the program, in
cluding retroactive grants to Prince Edward County parents. Be
tween 1954 and 1971, $1,697,329.46 in State and local monies were
expended in tuition grants for pupils of the greater Richmond
area. Of this amount, $894,734.70 was spent between 1965 and 1971
alone.
12
calculated to preserve segregation. It superseded “lo
calism” pro tanto, for the law effectively made it im
possible for a given locality to refuse to participate in
the program. In the event of non-cooperation by the local
authorities, grants would be made directly to parents;
and the State withheld an equivalent local share of the
State aid funds.16 Now individual parents were given
ultimate control over pupil assignments through the tui
tion grants.
This massive and continuing exertion of state powers
to preserve segregation meant that the only way in which
desegregation could be made effective was by judicial de
cree. The difficulty of bringing individual lawsuits against
every school system, and the currency, prior to 1963, of
judicial doctrine17 that impeded enforcement of Brown,
both substantively and procedurally, resulted in turn in
little progress through the courts. Throughout Virginia,
compliance with Brown remained token or worse.18 This
16_ Evidence demonstrating the extensive state-wide use of the
tuition grant programs to perpetuate segregation is summarized in
the district court’s detailed findings of fact. A. 320-31- 338 F
Supp., at 141-46.
. Exhaustion of administrative remedies unless unquestionably
futile was required, e.g., Carson v. Warlick, 238 F.2d 724 (4th Cir
1956), cert, denied, 353 U.S. 910 (1957); Adkins v. School Bd. of
Newport News{ supra; Jones v. School Bd. of Alexandria, 278 F.2d
72 (1960), until this Court’s decision in McNeese v. Board of Educ.,
373 U.S. 668 (1963). Similarly, class actions were not permitted
until after Green v. School Bd. of Roanoke, 304 F.2d 118 (4th Cir.
1962). Desegregation was still not widespread after elimination of
these problems, however, because ineffective pupil transfer and free
choice pkns received general approval. E.g., Bradley v. School Bd.
®45 F.2d 310 (4th Cir.), rev’d on other grounds. 382
U.S. 103 (1965).
18 See, e.g., U.S. Comm’n on Civil Rights, Civil R ights, U S A -
P ublic Schools, Southern States (1962); U.S. Comm’n on Civil
Rights, Survey of School Desegregation in the Southern and
B order States 1965-1966 (1966).
13
was clearly true of the Richmond area schools in the city
and Chesterfield and Henrico Counties.
Following the passage of the Civil Rights Act of 1964,
the Virginia State Department of Education signed a
compliance agreement with HEW in order to remain elig
ible for federal education funds. Again there was a shift
in Virginia’s view of the appropriate respective role of
state and local authorities: the State Department of Ed
ucation now claimed to be without power to police the
compliance of local districts with federal law regarding
student and faculty assignments. This new-found lack of
power did not prevent the Department from encouraging
resistance by local districts to HEW efforts, however.19
Despite the State’s role as a major source of funds for
public education, the Department considered neither the
Fourteenth Amendment nor its own compliance agreement
as requiring it to withhold state funds or take any other
steps against districts operating in violation of the Con
stitution.20 As the district court has aptly described it:
In the years since [Brown], the powers of the State
Board of Education and the State Superintendent of
19 Although special counsel advised the State Department of Edu
cation as early as November, 1965 that free choice plans were prob
ably never going to work satisfactorily and would likely be rejected
by HEW and the courts in the near future, the State continued to
assist in the defense of free choice and provided no leadership to
local school systems faced with the task of desegregating.
20 Gf. Lee v. Macon County Bd. of Educ., 267 F. Supp. 458, aff’d
sub nom. Wallace v. United States, 389 U.S. 215 (1967); United
States v. Georgia, Civ. No. 12972 (N.D. Ga., Dee. 17, 1969), rev’d
on other grounds, 428 F.2d 377 (5th Cir. 1970) ; United States v.
Texas, 321 F. Supp. 1043 (E.D. Tex. 1970), supplemental order
of April 19, 1971 (unreported), modified and aff’d 447 F.2d 441
(5th Cir.), stay denied, 404 U.S. 1206 (1971) (Mr. Justice Black,
Circuit Justice), cert, denied, 404 U.S. 1016 (1972).
14
Public Instruction have varied but slightly; what
changes in law have been made have principally been
to expand its powers. Other State educational agencies
have come into existence and disappeared in interven
ing years as well. For the major part of this seven
teen year period the State’s primary and subordinate
agencies with authority over educational matters have
devoted themselves to the perpetuation of the policy
of racial separation. They have been assisted in this
effort by new legislation creating such programs as
the tuition grant and pupil scholarship systems, the
pupil placement procedures, and, by enactment passed
while this case was pending, placing new limitations
on the power of the State Board to modify school
division boundaries. They have employed established
techniques and powers as well to perpetuate segrega
tion.
Only very tardily and under the threat of financial
coercion has the State Board of Education implicated
itself in any respect in the desegregation process. In
so doing it has conceived of its affirmative duty very
narrowly, confining its efforts to those required by its
compliance agreement with the Department of Health,
Education and Welfare, and on occasion not even ad
hering to that.
A. 215; 338 F. Supp., at 93. The desegregation of Vir
ginia public schools thus has rested upon the individual
efforts of private litigants and the federal compliance
effort unassisted by State cooperation. As a result, there
was virtually no real desegregation in the State prior to
Green v. County School Bd., 391 U.S. 430 (1968). Most
desegregation started no earlier than the 1969-70 or 1970-71
school years; the Motion for Further Relief which ulti-
15
mately led to the order here involved was filed March 10,
1970.
B. The Greater Richm ond Community.
The order of the district court, reversed by the judg
ment of which review is soug-ht, was intended to effectuate
the desegregation of the public schools in the Richmond,
Virginia area—and encompassing that city as well as the
counties of Henrico and Chesterfield.21 Richmond, ap
proximately sixty-three square miles in area, lies nearly
at the geographical center of the region and occupies an
area both north and south of the James River. Henrico
County (244 square miles) entirely surrounds the city
at all points north of the James, and Chesterfield County
(445 square miles) is likewise completely contiguous with
and envelops Richmond south of the James. Other counties
to the north and south of Henrico and Chesterfield, re
spectively, are separated from this Richmond metropolitan
area in whole or in part by the Appomattox and Chick-
ahominy Rivers. Virtually all of Henrico and most of
Chesterfield County22 lie within thirty minutes’ travel of
Capitol Square in Richmond, using regular streets and
averaging twenty to forty miles per hour.
The two counties and Richmond are highly interrelated
and mutually dependent upon one another. Typical of
most urban areas, the central core city has ceased to reg
ister increases in population in the decennial censuses;
21 The entire area was a part of Henrico County originally;
Richmond and Chesterfield County, among other political entities,
were created from it. Subsequently the city annexed various por
tions of each county from time to time. The last such annexation,
from Chesterfield County, occurred in 1970.
22 This includes all of the areas which, under the plan approved
by the district court, would send students at any grade level to a
school or schools presently located within the city boundaries.
16
the additional population growth from 1950 to 1960 oc
curred in Henrico and in 1960 to 1970 in Chesterfield
County; the most densely populated areas of each county
are contiguous to Richmond. The 1970 Census reveals
a total population of 480,840 in the area: 249,430 in Rich
mond, 154,364 in Henrico County and 77,046 in Chester
field County.23
A variety of historical, economic and social indicators
demonstrate the close functional unity of the area despite
its superstructure of three independent political subdi
visions. For example, evidence introduced at the trial
indicated that prior to the 1970 annexation, over three-
quarters of the jobs in the region (78% of those covered
by Virginia’s unemployment compensation program) were
in Richmond, and analyses performed for the Richmond
Regional Transportation study projected that the city
would retain a similar proportion of metropolitan employ
ment in the future (Tr. A-38, 43; R8BX 54, 55).24 Sim
ilarly, pre-annexation Richmond accounted for 62% of
the region’s retail sales and 76% of the value added by
manufacturing (Tr. A-42, 43).25 The daily newspapers of
general circulation throughout the area26 are in Richmond,
as are most local television and radio stations and a
disproportionate number of public and private educational
23 See table at p. 58 infra.
24 The 1970 Census data which has become available since the
trial bears out the projections. See pp. 71-74 infra. Evidence
introduced at the trial showed that 42% of the attorneys who prac
ticed in Richmond lived in the counties (51.4% reside in the city
and 6.6% elsewhere), while approximately one-third of the State
Education Department employees live in each of the three juris
dictions.
2B Figures presently available show an increase in such indices.
See text at note 139 infra.
26 Tr. K-85; cf. note 45 infra.
17
and cultural facilities; for example, six of seven insti
tutions of higher learning, including a medical college
(Tr. A-45, M-12) and the major libraries and museums
in the area (Tr. A-46; RSBX 59). Health services for the
entire area are concentrated in Richmond (which includes
within its boundaries 17 of the community’s 18 hospitals),
and most residents of the region are born in and die
within Richmond.27 Such public transportation as is avail
able in each of the counties is almost exclusively directed
toward travel between suburb and city rather than within
each county.28
Although the region is divided among three political
jurisdictions, among which there is a quite natural com
petitive spirit in various affairs, there have been numerous
common actions for mutual benefit. Henrico County relies
upon the fire and police services of Richmond at its county
offices, which are located within the city; other parts of
the county have in the past received fire protection from
Richmond pursuant to agreement. There is presently a
reciprocal fire assistance pact between Richmond and
Chesterfield County (Tr. L-227). Pursuant to statute, the
city and counties share concurrent regulatory jurisdiction
over subdivision development in an area five miles around
Richmond. The city has entered into 20-year sewage treat
ment and water supply contracts with Henrico County,
which receives 90% of its water from Richmond (Tr. A-117,
120), as well as reciprocal supply agreements for these
utilities with Chesterfield County (Tr. A-122-23).
27 Data compiled by the Richmond Planning Department from
Bureau of Vital Statistics records showed that 70% of resident
Chesterfield mothers, 79% of Henrico mothers and 94% of Rich
mond mothers gave birth within the city, while 49% of Chesterfield
residents, 55% of Henrico inhabitants and 85% of all Richmonders
died in the city (Tr. A-46; RSBX 61).
28 For example, the only public transportation in Chesterfield
County is two bus routes from Richmond (Tr. M-16,17) (c/. PX 1).
18
Reports of the regional planning commission as well
as those of independent consultants (some commissioned
by county officials) have all noted the marked interdepen
dence of the city and counties. The district court reviews
those and much of the evidence introduced at the trial in
its detailed findings (A. 401-16; 338 F. Supp., at 178-84) ;29
an appropriate summation is the following comment of
the Henrico County Circuit Court in a 1964 Richmond
annexation suit:30
Although community of interests is not necessarily
as vital a consideration as other factors to be con
sidered . . . this Court nevertheless feels that this
factor should be given consideration. . . . Dependence
of the central city of Richmond and the immediately
surrounding county is mutual, [record citations omit
ted] The evidence shows that the commercial and civic
interests of the city and county are largely identical.
!• Schools in the Community.
Each of the three school systems in the Richmond area
was strictly segregated at the time of the Broivn decision,
in accordance with Virginia law, and remained so under
29 We add, among the other factors which we do not detail for
the sake of brevity, that Richmond and the two counties form a
single Congressional district and that they, along with Hanover
County (added by the Census Bureau in 1963 but with somewhat
more diffused indices of interrelationship), make up the Richmond
Standard Metropolitan Statistical Area. See note 92 infra, and
accompanying text.
30 Under Virginia law, cities commence annexation proceedings
by passage of an ordinance and filing of suit to annex a specified
amount of contiguous territory. A special court is designated
which, after hearing, determines whether the prerequisites for an
nexation are met and then fixes a compensation award. The city
may then accept or reject the terms. In 1964, Richmond declined
to accept the terms fixed by the Court in its annexation suit against
Henrico County and no territory was gained.
19
the Pupil Placement Board regime.31 In 1961, this suit
was commenced against the original defendants (the School
Board of the City of Richmond and the state Pupil Place
ment Board) and the district court issued a decree di
recting the board and the Pupil Placement authorities to
admit the individual named pupil plaintiffs to the formerly
white schools they wished to attend.32 Similar relief was
obtained in Chesterfield County after suit was filed in
1962,33 but until 1965 there was little more than token
desegregation in any of the schools of the region. About
that year, freedom of choice plans were adopted in each
system—as the result of further judicial proceedings in
the Richmond litigation, and following HEW compliance
efforts in the two counties.34 Again, the free choice plans
produced little more than token integration (See Appen
dices to the district court’s opinion, A. 524-32; 338 P.
Supp., at 234-42.) In 1968-69 all of the traditionally black
schools in the three jurisdictions remained all black.
Following threatened termination of federal financial
assistance, Chesterfield County closed all formerly black
facilities by the 1970-71 school year (its black student
population was then less than 10%, down from 20% in
31 While the tuition grant and pupil scholarship programs ex
isted, they were utilized by students in the Richmond area to avoid
integration. From 1965 to 1971 alone, grants totalled $462,000 in
Chesterfield, $286,000 in Henrico, and $97,000 in Richmond. The
three divisions have expended nearly $1.7 million for tuition grants
since Brown. See n. 15 supra.
32 rpjjg p our.̂ }j Circuit reversed and directed the entry of a decree
on behalf of the class of plaintiffs. 317 F.2d 429 (4th Cir. 1963).
33 McLeod v. County School Bd. of Chesterfield County, Civ. No.
3431 (E.D. Va.).
34 The McLeod case lay dormant from 1962 to 1971 and the De
partment of HEW undertook Title VI enforcement. A motion to
consolidate this case with McLeod at the beginning of the trial was
denied as untimely by the district court.
20
1954) except for the Matoaca Laboratory school, although
significant faculty segregation remained. Similarly, in the
1969-70 school year, and under HEW pressure, Henrico
County closed its formerly black facilities (although many
were subsequently reopened as “annexes” to formerly white
schools); however, zone line alterations resulted in one
elementary school becoming over 90% black, and enrolling
40% of the county’s black elementary students. It was
also during the 1969-70 school year that the Motion for
Further Relief was filed in the Richmond case, leading to
the elimination of the free choice plan in the city.
Like the political bodies, Richmond’s school authorities
have worked together to meet the educational needs of the
region. A modern vocational-technical training facility
is operated by the Richmond system, enrolling a propor
tionate number of students from the three subdivisions.
Together, several specialized joint schools are operated:
two centers for mentally retarded children (one located
in Henrico and another in that area of Chesterfield County
annexed to Richmond in 1970), and a mathematics-science
center in Henrico.36 When annexations have resulted in
capacity problems for one of the school districts, students
have been educated in one of the other systems by con
tractual agreement until permanent facilities could be con
structed (as was the case after 1970, when 3387 Richmond
students continued to attend Chesterfield County schools).
One Richmond high school is entirely within Henrico
County, and one Richmond elementary school partly in
the same county.
. 35 Classes at the center are integrated and approximate the re
gion’s overall student population ratio.
21
2. Changing Internal D em ography.
The Greater Richmond community experienced its most
sustained and substantial growth in the period from just
before Brown y. Board of Educ., supra, to the present. Al
though prior to 1940, most of the population growth with
in the region was in the City of Richmond, over 90% of
the increase in population since that year has occurred
in Henrico and Chesterfield counties. Henrico made its
major gains from 1950 to 1960, and Chesterfied in the 1960-
70 decade.
The population changes are, of course, reflected in the
changing enrollments of the region’s schools. Enrollment
in the Richmond system grew from 35,857 in 1954-55 to
47,604 in 1970-71 (including the pupils gained by the 1970
annexation from Chesterfield County), while Henrico gained
21,328 during the period for a 1970-71 total enrollment
of 34,470 and Chesterfield added 14,931 pupils for a 1970-
71 enrollment of 24,063 (reflecting also the pupils lost by
the 1970 annexation).
The increasing suburbanization during the period is
demonstrated by annexation of portions of Henrico and
Chesterfield Counties in 1942 (and an attempted Henrico
annexation in 1963) as well as the 1970 Chesterfield annexa
tion. Furthermore, most of the population change in the
metropolitan region is accounted for by newcomers rather
than natural increase. During the 1950-1960 decade, for
example, one-half of Chesterfield’s, and three-quarters of
Henrico’s population growth resulted from in-migration.
From 1960-70 over half of Henrico’s increase resulted
from in-migration.36 In the same period, Richmond lost
some 33,000 residents.
36 Similar information for Chesterfield County is unavailable
since census figures are not separately set out for the area of the
county annexed to Richmond in 1970. See United States Dep’t of
22
The outstanding characteristic of this population change,
however, has been its racially differential impact. Al
though the overall composition of the region has re
mained remarkably stable throughout its recent develop
ment (in 1940 the black population was 28%; in 1970 it
was 26%), the distribution of whites and blacks through
out the area has not. The Richmond suburbs have been
virtually restricted to whites. Even with the annexation
of a predominantly white portion of Chesterfield County
in 1970,37 in that year the proportion of blacks to total
Richmond population was slightly higher, at 42.3%, than
it had been in 1960; Chesterfield and Henrico were 11.5%
and 6.8% black, respectively.38 Richmond accounted for
only 25% of the white population gain in the SMSA39
during the preceding decade, while Henrico and Chester
field Counties received 60%40 of that increase. On the
Commerce, Bureau of the Census, Census of P opulation : 1970
(G.P.O. PCH(2)-48, 1971). The preliminary, unedited version of
this document (the final figures were not available at the time of
trial) was introduced at the trial by Chesterfield County.
37 The annexation added some 47,000 residents to the city; with
out it, instead of gaining nearly 30,000 people from 1960 to 1970,
Richmond would have lost over 17,000. See id. at p. 5.
38 In the preceding decade, Richmond lost total population but
changed from 32% black to 42% black. Henrico more than doubled
in size but dropped from 10% to 5% black, and Chesterfield grew
by 75% but dropped from 21% black to 13% black. See table at p.
58 infra.
■j9 In 1963 the Bureau of the Census added Hanover County to
its definition of the Richmond Standard Metropolitan Statistical
Area, which already had included Chesterfield, Henrico and Rich
mond. Hanover, which contains 7% of the SMSA population, ac
counted for 15% of its white population growth from 1960-1970
Its school system, 24% black in 1970, was the subject of separate
litigation, see Thompson v. County School JBd. of Hanover County
252 P. Supp. 546 (E.D. Va. 1966), and pursuant to an order
entered by the same district judge who presided below, its schools
were fully desegregated effective September, 1969.
40 Richmond contains 48% of the total population in the SMSA.
23
other hand, Richmond received 75% of the SMS A increase
in black population during the decade.
Although at the time of Brown, Richmond’s student
population was 43.5% black and the counties’ 20.4% and
10.4% black, respectively, by 1971-72 each county enrolled
less than 10% black students while the Richmond system
was over 70% black.41
The effect of these rapid changes, coming at a time when
State and local authorities were steadfastly avoiding their
legal obligation to eliminate dual systems of racially identi
fiable schools, was very significant. Particularly against
the background of Virginia history,42 any marked contrast
between the racial composition of schools among the sep
arate divisions made the elimination of racially identifiable
schools more difficult due to the ingrained Virginia practice
of making racial differentiations. Indeed, both Richmond
educators and those from without the Commonwealth testi
fied at the trial that the Richmond school system itself had
become identifiable by race so that, realistically, identifiable
41 This distribution differs markedly from that in the counties
surrounding. At the southern extremity of Chesterfield are three
small “independent” city school systems—Petersburg, Colonial
Heights and Hopewell, which are 67%, 0% and 18% black, respec
tively. The school systems of the counties surrounding the region
enroll the following proportions of black students:
Hanover ..... 24%
Charles City ............................... 84%
New K en t............................ 56%
Prince George ............................ 26%
Dinwiddie...................... 52%
Amelia ........................... 64%
Powhatan ..................................... 40%
Goochland..................................... 57%
Bach of these counties is far more sparsely settled than Henrico
or Chesterfield.
42 A. 187, 189; 338 F. Supp., at 80, 81. Cf. N.A.A.C.P. v. Patty,
159 F. Supp. 503 (E.D. Va. 1958), rev’d on other grounds sub nom.
Harrison v. N.A.A.C.P., 360 U.S. 167 (1959).
24
schools would remain even were Richmond schools racially
balanced, and the district court so found. (A. 201; 338 F.
Supp., at 87; see also A. 186, 197, 445; 338 F. Supp., at 80,
85, 197.)43 The Henrico County Superintendent of Schools
testified that when Central Cardens Elementary School was
finally desegregated in 1971-72, it was clustered with several
other schools rather than being simply paired with the near
est predominantly white school, because in the latter in
stance, its racial composition (62% black) in the context
of the county’s overall ratio (8%) would leave it racially
identifiable. (A. 395-96; 338 F. Supp., at 175.)
These perceptions of racial identifiability are substan
tially reinforced44 by virtue of the contribution made by
discriminatory governmental policies46 toward the sort of
48 Other witnesses offered conflicting opinions; the detailed find
ings of the district court thoroughly discuss the expert testimony
and contain the rationale for the court’s resolution of the testi
monial conflicts (A. 446-78; 338 F. Supp., at 198-212; see also A.
263; 338 F. Supp, at 115-16).
44 A. 189-90; 338 F. Supp, at 81. Cf. Brown v. Board of Educ.,
347 U .S, at 494:
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 ; . . . .
46 Virginia’s policy of segregation has run the gamut from ex
plicit ordinances, City of Richmond v. Beans, 281 U.S. 704 (1930),
through enforceable racially restrictive covenants (which were ex
tensively used in the Richmond area and which were not removed
from title insurance policies until 1969 (A. 515; 338 F. Supp at
228; Tr. E - l l; Tr. R-143-44; 6/22/70 Tr. 828-40; PX 90) to dis
criminatory location of public housing projects (A. 494-97; 338 F.
Supp, at 219-20). Likewise, the record reveals considerable private
discrimination, doubtless encouraged by the State’s official sanc
tion : for example, the Richmond daily newspapers serving the area
continued racially separate real estate listings until 1971, when the
practice was discontinued in response to threatened litigation by
the United States Department of Justice (A. 514-15; 338 F. Supp,
at 228; PX 42A-42C). The record also traces in some detail the
continuing effects, which have been noted by the President of
the United States (A. 516; 338 F. Supp, at 229; PX 126) of the
25
racial isolation which has occurred in Richmond.46 Of sig
nificance especially is the effect of the massive post-Brown
programs to construct segregated schools in the metropoli
tan area:
People gravitate toward school facilities, just as schools
are located in response to the needs of people.
Swann, 402 U.S., at 20.47
pervasive discriminatory practices of federal agencies such as FHA,
which have by their financing activities greatly facilitated the
process of metropolitan development. The district court further
found that to the extent that housing patterns are viewed as the
result of economic differentials, see note 46 infra, the differences
between whites and blacks were attributable in part to the inferior
segregated education offered by the Commonwealth of Virginia to
those blacks who are now renting or purchasing homes and raising
families. Cf. Griggs v. Duke Power Go., 401 U.S. 424, 430 (1971);
Gaston County v. United States, 395 U.S. 285 (1969). The historic
inequality of black schools in Virginia—lower teacher salaries,
smaller instructional expenditures, higher pupil-teacher ratios, in
ferior supplemental services (including libraries), and fewer ac
credited schools—was fully documented before the district court as
confirmed by the Annual Reports of the Virginia Superintendent
of Public Instruction.
46 There was agreement among the expert witnesses that the racial
demography of the Richmond metropolitan area was not unlike that
found in other metropolitan centers across the nation. Dr. Karl
Taeuber testified, based upon his own exhaustive researches on the
subject, see K. Taeuber and A. Taeuber, Negroes in Cities (1965),
as well as his examination of the available data for Richmond and
the two counties, that the disparate racial pattern of residence could
not be attributed to either economic influences or the exercise of
preference alone, but that the effects of racial discrimination were
a major determinant.
47 School construction throughout the region played a material
part in residential development in at least three ways. First, in
Richmond, as established black neighborhoods expanded and ap
proached white schools (prior to the start of desegregation), the
school authorities redesignated these schools for black pupils, with
the result of solidifying the concentration of blacks and limiting
their residential movement to areas peripheral to established black
neighborhoods. Second, the counties’ practice of building only
26
C. The L itiga tion B elow .
1. P rior Proceedings.
This class action to desegregate the public schools of
Eichmond, Virginia was commenced in 1961 with the filing
of a complaint charging officials of the Commonwealth of
Virginia (the Eichmond School Board and the Pupil Place
ment Board of the Commonwealth) with racial discrimina
tion against black children. The initial district court order
directed that the individual named plaintiffs be admitted
to the white schools to which they desired to transfer but
denied an injunction in favor of the class. The Court of
Appeals reversed in part, directing limited class relief.
317 F.2d 429 (4th Cir. 1963). After further proceedings in
the district court, the Court of Appeals rejected plaintiffs’
challenge to free transfer desegregation plans and held also
that faculty desegregation would not be required. 345 F.2d
310 (4th Cir. 1965). This Court granted certiorari on the
issue of faculty desegregation, reversed, and directed that
the process of faculty desegregation be commenced. 382
TJ.S. 103 (1965).
IJpon remand from this Court, a consent decree was
entered which embodied a freedom-of-choice plan, provided
for faculty desegregation, and obligated school authorities
to replace free choice if it failed to produce results. How
ever, despite continuation of the patterns of segregation,
white schools (during the same period) in their most urbanized
areas contiguous to Richmond established a disincentive for blacks
to relocate in the suburbs: black children were transported, for
example, to Virginia Randolph High School in the northern part
of Henrico County or Carver High School near Chester in mid-
Chesterfield County—each the only high school for blacks in the
respective counties. See Northcross v. Board of Educ., Civ. No. 3931
(W.D. Tenn., Dec. 10, 1971) (at p. 10), aff’d No. 72-1630 (6th Cir,
Aug. 29, 1972). Finally, just as described in Swann, 402 U .S, at
21, the process of greatly expanding school capacity for white stu
dents outside the city while converting white schools to black schools
(rather than closing them) within Richmond had an inevitable cor
relative effect upon housing segregation.
27
Richmond school officials took no action, and on March 10,
1970 the plaintiffs filed a motion for further relief, relying
upon Green v. County School Bd., 391 U.S. 430 (1968).
2. Proceedings on the 19 70 M otions fo r Further R elief.
After the motion for further relief was filed and follow
ing an admission by the Richmond School Board that its
free choice plan probably did not meet then current con
stitutional standards, the district court directed submission
of new plans of desegregation for the Richmond public
schools. Initially the Richmond School Board submitted a
plan, prepared with the assistance of the Department of
HEW, based upon neighborhood zoning without the utiliza
tion of pupil transportation. The plaintiffs, through an
educational expert, submitted an alternative plan using
all of the techniques subsequently validated by this Court
in Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S.
1 (1971), as applied to the schools operated by the defen
dant Richmond School Board. On June 26, 1970, at the
conclusion of an evidentiary hearing on the plan submitted,
the district court rejected the ITEW plan and afforded the
Richmond School Board an additional opportunity to sub
mit its own alternative plan. The Board thereafter pro
posed a plan which incorporated the use of pupil trans
portation at the secondary levels but avoided it at the ele
mentary levels, and which would not achieve as much deseg
regation in the public schools of Richmond as plaintiffs’
plan. Following a hearing in August, 1970, the district
court permitted the School Board to implement its second
plan on an interim basis for the 1970-71 school year, for
the explicit reason that sufficient time was no longer avail
able within which to acquire the transportation capacity
necessary to implement a plan like that submitted by the
plaintiffs, which the district court expressly approved as
“reasonable” within the meaning of the then applicable
28
law [Swann v. Charlotte-MecJclenburg Bd. of Educ., 431
F.2d 138 (4th Cir. 1970), rev’d 402 U.S. 1 (1971).] 317 F.
Supp. 555 (E.D. Va. 1970).
The district court’s opinion and order instructed the
Richmond School Board that a plan which achieved as
much or more desegregation than that submitted by the
plaintiffs would have to be implemented not later than the
1971-72 school year, while again affording the school Board
another opportunity to submit such a plan drawn by its
officials.
. . . The Richmond public schools cannot be desegre
gated without using the techniques used by Dr. Foster
such as non-contiguous zoning, pairing, clustering of
schools and transportation, . . . [317 F. Supp. at 575]
Accordingly, the School Board was directed to notify the
district court within 90 days of the steps it had taken to
implement a constitutional plan and of the earliest date
such a plan could be put into operation in the Richmond
public schools. On November 15, 1970, counsel for the
Richmond Board informed the district court by letter that
new plans would not be filed until January, 1971.48
48 .°n December 9, 1971, plaintiffs accordingly filed a motion
seekmg an order requiring implementation of their alternative plan
effective with the second semester of the 1970-71 school year, which
they contended was required under Alexander v. Holmes County
Bd. of Educ., 396 U.S. 19 (1969) and Carter v. West Feliciana
Parish School Bd., 396 U.S. 290 (1970). The district court also
had before it a motion of the School Board seeking to vacate a
pendente lite construction injunction, see, e.g., Calhoun v. Cook 430
F.2d 1174 (5th Cir. 1970), which it had issued following the’first
hearings on the motion for further relief. In an opinion reported
at 324 F. Supp. 456 and entered January 29, 1971, the court denied
the motion to implement plaintiffs’ plan and vacated its injunction
as to those proposed construction projects to which plaintiffs had
no objection.
On January 15, 1971, the School Board of Richmond filed three
alternative desegregation plans limited to the Richmond schools;
29
In the meantime, on November 4, 1970, the School Board
of the City of Richmond filed a motion to join additional
parties (the School Boards and Boards of Supervisors
of Henrico and Chesterfield Counties as well as their
school superintendents, the State Board of Education, and
the State Superintendent of Public Instruction) pursuant
to Rule 19, F.R.C.P., on the ground that full and effective
relief could not be granted to plaintiffs without the joinder
of these parties.49 The district court invited counsel for
the parties sought to be joined by the motion to appear
and present argument concerning the sufficiency and pro
priety of the motion. After a hearing before the court
following an evidentiary hearing on March 4, 1971 (at which
counsel for the added defendants were invited to express any views
concerning the appropriate relief required within the City of Rich
mond should the claim against them he held insufficient), the dis
trict court approved one of the plans proposed by the School Board
and directed its implementation commencing with the 1971-72
school year. In doing so, the court expressly predicated its con
clusion that the School Board’s plan met the requirements of the
law upon the assumption that no additional relief against the
joined parties which might be ordered had yet been litigated.
325 F. Supp. 828, 830 n .l (B.D. Ya. 1971).
49 On June 25, 1970, Dr. Thomas Little, Associate Superintendent
of the Richmond Public Schools, testified on cross examination that
if he were directed to develop an optimum desegregation plan for
Richmond, such a plan would involve an area larger than the
Richmond City school division:
Q. Dr. Little, assuming transportation of pupils, is there
any way to achieve what you consider to be, as an educator, an
optimum of desegregation in the Richmond area! A. In the
Richmond area, yes.
Q. How would you do that? A. It would involve the in
volvement of a larger area than the present city boundaries of
the City of Richmond.
Q. Are you talking about Henrico County, Chesterfield
County, or both? A. Henrico County, Chesterfield County,
and the possibility of the general metropolitan area, maybe
bordering on, in other counties other than Henrico and
Chesterfield. Basically, the problem could be solved within
the City of Richmond, Henrico and Chesterfield Counties.
[6/25/70 Tr. 1122-23],
30
and submission of memoranda, the district judge found,
without intimating any view on the merits of whatever
underlying claims might be made, that it was appropriate
to grant the motion in order to litigate the duty, if any,
owed by the additional defendants to the plaintiffs or the
Richmond School Board. The court noted that its finding
with respect to a desegregation plan for the City of Rich
mond was
. . . made in the context of litigation between Rich
mond residents and Richmond officials alone. It is
by no means inconsistent with the existence of a duty
on the part of officials with broader powers to exer
cise such powers to afford different or additional re
lief from what the Court has found to be state-imposed
segregation. The addition of further parties, more
over, alters the range of alternatives, some of which
may be shown as feasible and more promising in
their effectiveness. Green v. County School Bd. of
New Kent County, [citations omitted]. It is with an
eye to this range of choices between means to pro
vide desegregated schools that the legal sufficiency of
a proposed unitary plan is to be tested.
51 F.R.D. 139, 141 (E.D. Va. 1970). At the same time,
the district court set forth its view of the issues which
would be presented by claims involving the additional de
fendants, in terms to which the court consistently ad
hered during subsequent proceedings:
Certain of the additional parties have a direct af
firmative obligation toward the Bradley plaintiffs, and
others of them might well be necessary in order that
the first can fulfill that obligation; the question re
mains whether in fact that obligation has been ful
filled. On that point the position of the instant plain-
31
tiffs is not clear. They demand a unitary school sys
tem. However, whether it is their contention that
this may or must he achieved by the formation of
a consolidated school division or by other means be
yond the power of the present defendants does not
appear with clarity from the pleadings. The measure
of the effort which may be required of those sought
to be joined may depend upon both the extent to
which the actions, if any, of these persons or their
predecessors have contributed to the existing situa
tion, and also the reasonableness of the remedial steps
which are available.
Id. at 143. Accordingly, plaintiffs were directed to file an
amended complaint “wherein they set forth both those
alleg*ed facts which they contend give rise to an obliga
tion on the part of those joined to take steps to achieve
a unitary school system for the class they represent, and
also the particular relief demanded.” Id. at 143-44.
Plaintiffs’ amended complaint, filed December 14, 1971,
alleged constitutional violations on the part of all added
defendants and concluded with a prayer stated in the al
ternative—the text of which is set out in the margin.50
5° “W herefore, plaintiffs respectfully pray that this Court enter
its Order requiring all defendants, jointly and severally, to take all
necessary action to require forthwith the consolidation or merger
of the defendant school systems in all aspects of school operation
and administration, including but not limited to, the appointment
of an Acting Superintendent to manage the consolidated systems,
the merger of the existing boards of education pending the selection,
by election, appointment or otherwise, of a new board of educa
tion representative of the consolidated systems; and further requir
ing that that board shall be the successor board of education to the
defendants School B oard of the City of R ichmond, School
B oard of H enrico County and School B oard of Chesterfield
County, assuming all rights, powers, responsibilities, duties and
obligations presently held, in whole or in part, by the defendant
school boards; and further requiring that each defendant shall, by
32
Following disposition of a series of pre-trial motions
by the state and comity defendants,51 the district court
conducted a series of pretrial conferences during the spring
of 1971 in order to clarify the issues and facilitate the
trial.52 Prior to the start of the trial but following the
withholding of funds or accreditation and by the exercise of any
and all powers available to each, insure the full cooperation of the
other defendants and the prompt accomplishment of said consolida
tion or merger.
In the alternative, plaintiffs pray that the Court require defen
dants B oard of Supervisors op H enrico County, B oard op Super
visors or Chesterfield County, City Council op R ichmond,
School B oard of H enrico County, School B oard op Chester
field County and School B oard op the City op R ichmond, act
ing by and through the State defendants, to enter into such agree
ments, contracts or otherwise to provide for the joint operation of
the educational systems of the City of Richmond and the Counties
of Henrico and Chesterfield, with free availability of all facilities
for pupil attendance, and tri-system-wide assignment of pupils,
teachers, school plant, transportation facilities and all other in
cidents of school operation, to the end that no school within the
respective defendant school systems shall be racially identifiable.
Plaintiffs further pray that this Court require the defendants to
prepare and submit for approval of the Court a plan for the oper
ation of all of the public schools within the defendant school sys
tems in conformity with the requirements of the Fourteenth
Amendment^ including but not limited to, the establishment of
schools, pupil populations, staffs, faculties, transportation routes
and extracurricular activities which are not racially identifiable,
and to be effective with the commencement of the 1971-72 school
year.”
51 On January 8, 1971, the district court denied a motion to
recuse which had been made by several of the added defendants.
(A. 58-90; 324 F. Supp. 439). On February 10, 1971, the court
denied a motion to dismiss as to certain of the added defendants in
their individual capacities (A. 107-09; 324 F. Supp. 401) and on
the same date denied the motion of several of the joined parties to
convene a three-judge court pursuant to 28 U.S.C. §2281 to hear
and determine the cause (A. 98-106; 324 F. Supp. 396). Addi
tional pre-trial motions were disposed of in two unreported orders
(A. 91-97).
62 When the Richmond School Board made known, in the course
of the pre-trial proceedings, that it intended to prepare and present
a plan for the accomplishment of desegregation in the greater Rich-
33
filing of the joinder motion and the amended complaint,
the General Assembly of Virginia amended the Education
Code so as to restrict the previous power of the State
Board of Education to subdivide the Commonwealth into
school divisions. The new statute, passed by a legislature
conscious that the amendment might have an effect on
this very litigation, required the consent of existing local
school boards and governing bodies of political subdivi
sions before the State Board might place two or more
cities or counties, or a city and one or more county,
within the same school division.63
Evidence was received August 16-20, 23-27, 31 and Sep
tember 1-2, 7-10 and 13, 1971.
mond community, involving the schools within the Richmond and
county systems, the district court urged the parties, and in partic
ular the added state and county defendants, to examine the pro
posed plan (which the court instructed the School Board to tender
prior to the hearing) and confer with the Richmond school officials
in order that they might (a) suggest any preferable alternatives
to the district court and (b) avoid unnecessary delay in implemen
tation of a metropolitan desegregation plan, should the relief re
quested in the motion for joinder, amended, complaint, and cross
complaint of the Richmond School Board (filed January 15, 1971)
be granted. (Tr. 4/23/71 6-9, 39; Tr. N-154, 249). Despite written
invitation from counsel for the Richmond Board, the county boards
and their administrators never accepted the opportunity to confer
in order to improve upon the plan submitted by the Richmond
Board to demonstrate the feasibility of the relief, nor did they ex
press a preference prior to the entry of the judgment in the district
court for achieving the relief sought by plaintiffs through either
consolidation or joint operation pursuant to contract. Nevertheless,
the district court’s opinion invited post-judgment motions for re
consideration, submitting alternative plans or suggesting improve
ments to the Richmond School Board plan (A. 519; 338 F. Supp.,
at 230).
63 Following enactment of this statute, the motion to convene a
three-judge court was renewed (see n. 51, supra) and again denied
by the district court (A. 156).
34
3. Conditions at the T im e the District Court Rendered
Its Judgm ent.
Upon the implementation of Plan III in Richmond (see
note 48 supra), the district court was able to measure the
effectiveness in eliminating the racial identifiability of
schools, of a plan utilizing the known and accepted tech
niques of desegregation to the maximum extent possible
within the City of Richmond. As the court said in approv
ing the plan:
A comparison of the projected racial attendance figures
for each school with the system wide ratio reveals that
. . . the School Board, if this proposal succeeds as
planned, will have eliminated the racial identifiability
of each facility to the extent feasible within the City
of Richmond.
(A. 121; 325 F. Supp., at 835) (emphasis added).
The 1971-72 enrollment figures available to the district
judge prior to his ruling showed not only that Plan III
had not “succeed [ed] as planned” upon implementation,64
but that racially identifiable schools were still maintained
within the context of the Richmond community’s school
system.
In 1971-72 more than half of Richmond’s schools were
over 70% black, and a fifth were over 80% black. Schools
which had always been black—under Pupil Placement, free
choice, and the interim plan—remained so: Maggie Walker
High School, the original Richmond high school for blacks
(77%); Armstrong High (72%); Kennedy High School,
physically located within Henrico County (89%); Graves
64 Many schools—particularly traditionally black schools—opened
with proportionately greater black enrollments than had been pro
jected (A. 530-32; 338 F. Supp., at 240-42).
35
middle school (74%); Mosby middle school, the largest in
the system, built in 1963 to serve only black pupils (86%);
Chandler middle school, converted from a “white” to a
“black” school before there was any desegregation (89%);
and many elementary schools—some built as or converted
to black schools, Baker (80%), Blackwell (85%), Fair-
mount (80%), Mason (83%), Norrell (83%), Stuart (79%)
—others which became black schools during free choice,
such as Highland Park (84%).
These results, underlining the attendance of 56% of Rich
mond’s black students in schools more than 70% black, are
the more meaningful in the metropolitan context, for Rich
mond enrolled over 85% of all black pupils in the community
while the county systems were each less than 10% black,
and most county schools virtually all white. Of the 132
schools operated within the entire area (whose total compo
sition was 65% white), 78 were clearly racially identifiable:
31 were 70% or more black while 47 were over 90% white.
The predominantly black schools were clustered within
Richmond and the white schools within Henrico and Ches
terfield counties.
During the period 1955-1970, the enrollment of white
students at schools within Chesterfield and Henrico counties
increased by 37,000; in the same period, schools within
Richmond experienced a decrease in white enrollment of
more than 7500.55’66
The composition of the faculties at the various schools
also tended to be correlated with the racial makeup of their
66 This figure excludes white students added to the city schools
by virtue of the annexation of a portion of Chesterfield County
in 1970.
66 The Richmond Board reported a continuing and accelerating
loss of white students from its system (A. 521; 338 F. Supp., at
231).
36
student bodies, although overall there was a smaller per
centage of black teachers than students and the differences
between schools were not as marked.
At the same time, of the total 106,000 students enrolled
in the public schools of the region, some 68,000 received
transportation furnished by school authorities. (Of this
number, only some 20,000 students were bused in connec
tion with attempted desegregation.) The school systems
owned a total of more than 600 buses, most of which were
of 66-passenger capacity.
4. T h e District Court’ s R uling.
On January 5, 1972, the district court issued its Mem
orandum, which contains a short history of the case (A.
164-85; 338 F. Supp., at 70-79), general factual findings
and conclusions together with a discussion of applicable
legal principles (A. 185-263; 338 F. Supp., at 79-116), and
extensive, detailed, specific findings of fact supportive of
the general findings and conclusions (A. 185-545; 338 F.
Supp., at 116-230).
The district court concluded that, in spite of the im
plementation of Plan III and the taking of various steps
toward desegregation in the county school systems, the
schools in Richmond and the counties remained racially
identifiable, viewed in terms of the common sense per
ceptions of students and parents based upon deviations
from the community-wide ratio, or of the informed judg
ment of professional educators, or of the history of dis
crimination and segregation in Virginia (A. 186-90; 338 F.
Supp., at 80-81). Indeed, the court found, such schools
would remain under any desegregation plan which might
be implemented within the existing district lines (A. 207-
11, 236-39; 338 F. Supp., at 90-91, 103-04). Therefore,
in light of its obligation (and that of the school author-
37
ities) to achieve the greatest amount of desegregation
practicable, not limited by artificial boundaries,57 the dis
trict court considered whether any compelling or even
legitimate State interest in maintaining the existing school
district lines would prevent the combination of city and
county schools in a desegregation plan which would sat
isfy that obligation, and thereby eliminate racially iden
tifiable schools (A. 190-93; 338 F. Supp., at 81-83).
In light of the past crossing of division lines freely to
perpetuate segregation (A. 193-95; 338 F. Supp., at 83-
84), the coincidence of the boundaries with highly segre
gated residential patterns—which were shown to have
resulted in part from racially discriminatory practices by
private individuals and public agencies, including the
school construction practices of the separate school sys
tems (A. 195-207, 211; 338 F. Supp., at 84-89, 91-92),
and the shared control of public education—utilized in
the past to avoid and resist desegregation—between local
and state authorities, including the shared power to con
solidate school divisions (A. 212-21, 227-36; 338 F. Supp..
at 92-96, 98-103), the district court concluded that it was
appropriate, under the facts and the analogous precedents,
to require state and local authorities to act in concert to
facilitate execution of a desegregation plan for the Rich
mond area schools, crossing existing district lines in order
to provide effective desegregation (A. 222-26, 239-59; 338
F. Supp., at 96-98, 104-13).
Because of the long delay since this Court’s decision
in Brown in implementing desegregation, which had made
vindication of the constitutional mandate far more dif
ficult, the district court determined that adequate relief
should be implemented with the 1972-73 school year and
67 Davis v. Board of School Comm’rs, 402 TJ.S. 33, 37-38 (1971).
38
approved tlie Richmond Board’s plan for achieving metro
politan desegregation, subject to requested modifications
or new proposals consistent with implementation in 1972
(A. 259-63; 338 F. Supp., at 114-16).68
On January 10, 1972, the district court entered an order
in accordance with the opinion (A. 536-45; 338 F. Supp.,
at 244-48) which established a time schedule within which
the state and/or county defendants were to take appro-
68 The metropolitan desegregation plan presented by the Rich
mond School Board was the only plan put before the court by any
of the parties. See note 52 swpra; cf. United States v. Board of
Educ. of Baldwin County, 423 F.2d 1013 (5th Cir. 1970). It in
corporated consolidation of the existing Richmond, Henrico and
Chesterfield school systems into a new structure fashioned in ac
cordance with Virginia law, in addition to the reassignment of
students among the various schools in the Richmond community.
The plan is briefly described in the dissenting opinion of Judge
Winter below (A. 586-89) and in careful detail in the district
court’s opinion (A. 418-32; 338 F. Supp, at 186-92). Although
the Richmond Board’s plan was made available to the state and
county defendants in advance of trial, in accordance with the dis
trict court’s instructions, they offered no alternative of their own
but did present several expert witnesses who attacked the plan, and
particularly its consolidation features. In turn, the plaintiffs and
the Richmond Board presented expert testimony in support of the
educational soundness and feasibility of metropolitan desegregation
in general, and the Board’s suggested plan in particular. The dis
trict court resolved such conflicts as existed in the expert testimony
m favor of plaintiffs and the Richmond Board. (A 446-78 • 338
F. Supp, at 198-212; see also, A. 263; 338 F. Supp, at 115-16 )
One of the educators offered by the Richmond Board was Dr.
Thomas Pettigrew, who supported the plan on generally accepted
educational principles and also because it had the added virtue in
his view, of according with his own interpretation of social science
data to the effect that schools between 20% and 40% black will be
The district court recognized Dr. Pettigrew’s views
(A 437-39; 338 F. Supp, at 194-95) but hardly gave them con
trolling weight ; however, the Court of Appeals viewed the testimony
of Dr. Pettigrew, an educator called to support the feasibility of
a, plan he had nothing to do with preparing, as indicating that the
design and goal of the Richmond Board plan—and hence the dis
trict court’s order—was the achievement of a “racial balance”
39
priate steps pursuant to Virginia law [Va. Code Anno.
§§22-100.1, et seq.] to implement the Richmond Board’s
plan, including the creation of a consolidated school di
vision, transfer of title to school buildings to the new divi
sion, and appointment of an acting Superintendent for
the new division. Further, the State defendants were di
rected to promulgate regulations within their statutory-
authority for the financial operation of the consolidated
division, and to prepare an organizational plan for the
new division. With the assistance of the counties, they
were to adjust the Richmond Board plan to demographic
changes and submit any desired modifications of the plan
to the district court; and finally, within 90 days they
were to submit a detailed plan of execution to the court
which, if approved, would be implemented in September,
1972.69 Following expedited appeal, the judgment of the
district court was reversed June 5, 1972 (A. 557-85), Judge
Winter dissenting (A. 585-602).60
69 On January 19, 1972, the district court denied a stay of its
order pending appeal, noting that the order by its terms would
not result in the transfer of any students for six months, during
which period essentially planning functions would be carried out
(A. 549-50). Thereafter, on February 8, 1972, the Court of Ap
peals stayed all provisions of the order except those explicitly re
garding continued planning, although it left to the State Board’s
discretion whether a provisional school board for a merged division
should be formed; it also expedited the appeals (A. 553-56).
60 The Court of Appeals’ opinion is discussed infra, Part 1(A)
at pp. 46-54.
40
Reasons For Granting the Writ
The Fourth Circuit’s decision should be reviewed and
corrected by this Court for the following reasons, which
we summarize here and develop in the designated subparts
below:
First, the Fourth Circuit has decided a basic legal
question standing at the threshold of the most significant
school desegregation problem of the times. The question
is whether school district or “division” 61 lines impose
narrow and inflexible limits upon the otherwise broad and
flexible equitable powers of the federal courts62 to fashion
a desegregation decree “ ‘that promises realistically to
work, and promises realistically to work now.’ ” 68 (Part
1(A), infra.) The problem is how to cope with the im
pacted black center-city schools of large metropolitan
ghettos which are impossible to desegregate, or to desegre
gate effectively, within the narrow, inflexible limits of
single-district desegregation plans. (Part 1(B), infra.)
In many metropolitan areas, as in Richmond, these im
pacted black schools simply cannot be integrated into a
unitary system “without a ‘white’ school and a ‘Negro’
school, but just schools” 64 by means of any desegregation
plan that is confined to the schools of one school district.
61 What Virginia terms “school divisions” are elsewhere more
generally called “school districts.” We shall use the terms inter
changeably hereafter, ordinarily speaking of “districts” when our
discussion is general or national and of “divisions” when we focus
upon the Virginia scene.
62 See Swann v. Charlotte-Mechlenburg Bd. of Educ., 402 U.S.
1, 15 (1971) ; Brown v. Board of Educ., 349 U.S. 294, 300 (1955)
[hereafter sometimes cited as Brown (II)] .
63 Davis v. Board of School Comm’rs, 402 U.S. 33, 38 (1971),
quoting Green v. County School Bd., 391 U.S. 430, 439 (1968).
64 Green v. County School Bd., 391 U.S. 430, 442 (1968).
41
In other metropolitan areas, single-district plans can pal
liate the segregation of the all-black center-city schools in
some measure, but they cannot achieve “the greatest possi
ble degree of actual desegregation” 65 with the greatest
efficiency and the least community cost.66
If the Fourth Circuit is correct that the Tenth Amend
ment or some other abstract doctrine categorically forbids
inter-district desegregation orders by the federal courts
(in the absence of proof, ordinarily unavailable whether
or not the fact be true, that school district lines have been
maintained with racially discriminatory motivation), then
this Court should surely not delay in saying so. That
pronouncement—Brown v. Board of Education67 stops short
at every district line—ought to come authoritatively or not
at all. School officials, communities, courts and lawyers
struggling to desegregate metropolitan schools deserve to
be told immediately to direct their efforts toward plans,
whether or not fully effective, that are district-limited.
And where district-limited plans are palpably futile to
effect desegregation, they should be told immediately to
give desegregation efforts up.
If, on the other hand, as we believe, the Court of Appeals
is wrong in allowing every individual school district to
“draw a line of fire around its boundaries” 68 through which
66 Swann v. Chariotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 26
(1971).
66 Consider, for example, a school district whose black population
is concentrated in a large east-end ghetto. A single-district de
segregation plan might require extensive cross-district transporta
tion of students, whereas a plan that included schools of a white
residential suburb in the next district to the east, closely con
tiguous to the black ghetto, could provide far greater integration
with far less pupil dislocation.
67 3 47 U.S. 483 (1954) [hereafter sometimes cited as Brown (I)].
68 The phrase is Mr. Justice Holmes’, in Direction der Disconto-
Gesellschaft v. United States Steel Corp., 267 U.S. 22, 28 (1925).
42
federal courts enforcing Brown v. Board of Education may
not pass, then this Court should still more quickly set
that error right. The “obligation of every school district
. . . to terminate dual school systems at once” 69 should no
longer be deferred in the metropolitan regions of the
Fourth Circuit and in other metropolitan regions where
the Fourth Circuit’s doctrine will be urged—now, more
than eighteen years after Brown (I)—as a further ground
for postponing too-long-postponed desegregation.
Second, the Fourth Circuit’s decision is not merely in
consistent with approaches to metropolitan desegregation
that have previously been announced by lower federal
courts in other circuits. (Part 11(A), infra.) It also de
feats the premises upon which extensive litigation is pres
ently proceeding in numerous of those courts. (Part 11(B),
infra.)
Complaints seeking inter-district metropolitan desegrega
tion orders are pending at this time in district courts in
at least six circuits other than the Fourth. If the Fourth
Circuit is correct that such orders are doctrinally for
bidden (or allowable only upon a showing of racial motiva
tion in the drawing of school district lines), then federal
lawsuits in Atlanta, Boston, Hartford, Indianapolis, Louis
ville, Wilmington, and other cities are now being conducted
upon theories that are going to result in a wholly deplorable
waste of judicial time.
Invoked by defendants in those lawsuits, the decision of
the Fourth Circuit in this Richmond case will abort or
radically redirect them—properly, if the decision is cor
rect; intolerably, if it is not. But, whether or not it is cor
rect, if unreviewed it will needlessly complicate and delay
litigations that are already sufficiently complicated and
69 Alexander v. Eolmes County Bd. of Educ., 396 U.S. 19 20
43
have been more than sufficiently delayed. Under these cir
cumstances, the exercise of the Court’s certiorari jurisdic
tion is uniquely called for, to provide guidance to the
lower courts in a matter of the most immediate and wide
spread importance.
Third, the present case presents an excellent vehicle for
furnishing such guidance. (Part III, infra.) The problems
of metropolitan school desegregation are thoroughly ex
plored in the voluminous evidentiary record made before
the District Court. The District Court has written an
unusually comprehensive opinion containing detailed find
ings of fact. Much of the background of the ease—the his
tory of school segregation and desegregation in Virginia—
is already well known to this Court.
In that familiar framework, the new issue of metro
politan desegregation emerges with signal clarity. It is
not confused by adventitious yoking with de-jure-versus-
de-facto issues (whatever those labels may cover in other
contexts), or with busing issues. (The amount of busing
required by the District Court’s Bichmond-Chesterfield-
Ilenrico unitary desegregation plan does not greatly exceed
the amounts previously required in the three divisions con
sidered separately; and the Court of Appeals had no
problem concluding that “[t]his is not a bussing case”
(A. 563, n. 2).) Nor is the metropolitan issue compli
cated by a welter of school districts (only three are affected
by the District Court’s unitary plan), or by embarrassing
state-law impediments to their joinder in a single plan
(to the contrary, Virginia law makes express and detailed
provision for virtually every mechanism necessary to effect
the tri-division consolidation ordered by the District
Court).
The ground upon which the Court of Appeals decided
the case gives rise to a clear-cut legal issue that is illumi-
44
nated but not entangled by its factual setting. That issue
is whether school district boundary lines are sacrosanct
as a matter of constitutional law where a federal district
court concludes that they must necessarily be crossed in
order to desegregate effectively a 70% black city com
pletely surrounded by two 90% white counties, all com
prising a metropolitan region that is integrated econo
mically and socially but for race. No significant factual
disputes about the characteristics of the Richmond metro
politan area divide the District Court and the Court of
Appeals; to the slight extent that those two courts differ
in theii interpretations of the basic facts, the differences
are matters of legal inference which it is the proper office
of this Court to decide.
Furthermore, the record and the framing of the issue
before this Court will allow the Court to do for multi
district metropolitan desegregation cases what it has pre
viously found it wise to do for other desegregation cases:
to “provide some guidelines for the exercise of the district
judge s discretion and for the reviewing function of the
courts of appeals,” 70 without itself entering into nitty-
gritty applications of those guidelines in a fashion in
appropriate for a court of ultimate review, and without
descending to particulars that would frustrate “the ap
propriate scope of equity.” 71 This is so because the deci
sive issue presented by the case is the doctrinal correct
ness of the Fourth Circuit’s view regarding the constitu
tional impermeability of school district lines. Once that
issue is resolved, the Court can proceed as far as it may
then think fitting to define the principles that ought govern
application of the remedial discretion of Brown (II) and
Swann in metropolitan contexts. This record will support
70 Swann v. Charlotte-MecJclenburg Bd. of Educ., 402 U.S 1 15
(1971). J
71 Id., at 31.
45
consideration of those principles at whatever level of
generalization or detail the Court deems advisable.
Fourth, the Court of Appeals’ decision of the threshold
legal issue conflicts with and curtails applicable decisions
of this Court, and imposes uncertain and unworkable li
mitations upon established doctrines of constitutional law
and federal equitable power. Specifically:
A. The Court of Appeals ignores or eviscerates the
vital principle that the Fourteenth Amendment, and its
Equal Protection Clause in particular, address their com
mands to the State; that the State is the ultimate agency
which is responsible constitutionally to provide equal pro
tection to the races; and that this responsibility cannot
be evaded by the manner in which a State chooses to carve
up its territory, arrange its governmental structure, or
delegate its functions or authority among internal sub
divisions. (Part IY(A), infra.)
B. The Court of Appeals turns the Constitution on its
head by the unprecedented holding that the Tenth Amend
ment limits the Fourteenth and insulates a State’s internal
administrative divisions against federal judicial alteration
even where those divisions operate to defeat Fourteenth
Amendment rights. (Part IV(B), infra.)
C. The Court of Appeals imports into the jurisprudence
of Equal Protection a test of invidious racial motivation
which this Court has previously been scrupulous to resist,
and which threatens to nullify the constitutional guarantee
of equal treatment of the races. (Part IV(C), infra.)
D. The Court of Appeals impermissibly restricts the
remedial powers of a federal court of equity, both as this
Court has developed them generally and as it has directed
the district courts to use them in school desegregation
cases. (Part IV(D), infra.)
46
I.
The Fourth Circuit’s Decision Balkanizing B row n v.
B oard o f E du cation Is of Grave and Widespread Im
portance Because It Broadly Denies the Promise of
B row n to the Children of the Metropolitan Ghetto.
A. T he F ourth C ircu it E ssen tia lly Confines F ederal C ourt
R em edies fo r U nconstitu tional S chool Segregation W ith in
th e L im its o f In d ividu a l School D istric t B ou n dary L ines•
In the opening paragraph of his majority opinion for
the Court of Appeals, Judge Craven states the issue as the
Fourth Circuit perceives and decides it:
May a United States District Judge compel one of
the States of the Union to restructure its internal gov
ernment for the purpose of achieving racial balance
in the assignment of pupils to the public schools! We
think not, absent invidious discrimination in the es
tablishment or maintenance of local governmental
units, and accordingly reverse. (A. 562.)
Understood as it must be in the context of this record—
with “restructure its internal government” meaning noth
ing more than to quit treating school division boundary
lines as impassable frontiers across which pupils may not
be assigned,72 and “racial balance” meaning nothing less
72 The District Court in this case did, of course, order the con
solidation of the school division of the City of Richmond with
those of Chesterfield and Henrico Counties, pursuant to the pro
visions of ̂ Virginia law governing school division consolidations.
That particular form of inter-division desegregation plan was the
product of the history of the litigation, as well as of the character
istics of the Richmond metropolitan area as the District Court
found them.
After the_ District Court had granted the Richmond School
Board’s motion to join the county and state defendants and had
plainly ruled that the Richmond city schools could not be desegre
gated effectively by a plan limited to the city’s boundaries, it
permitted ample and reiterated opportunity to all parties to sub
mit plans, assist the court by suggestions, or cooperate with each
47
72 ( continued)
other in devising proposals, for any sort of inter-division desegre
gation decree that would work. Among all the defendants, only the
Richmond School Board offered a plan; and it was this Richmond
School Board plan calling for consolidation that the District
Court eventually embodied in its opinion and order. (See notes 52
and 58 supra.) No defendant in the District Court suggested any
form of plan which went beyond the boundaries of the City of Rich
mond but did not involve consolidation. Quite naturally and
properly, then, the District Court took the question before it to be
the one on which the parties had drawn issue: whether its decree
was legally required to be “circumscribed by school division
boundaries.” (A. 186; 338 F. Supp., at 79: see the Court’s ex
haustive discussion of that question at A. 185-263; 338 F. Supp.,
at 79-116.) A negative answer to that question was accepted by all
parties as decisive of the propriety of the Richmond School Board
plan.
However, even after its thorough study of the feasibility of the
Richmond Board Plan and after writing an exhaustive opinion
providing for the manner of implementation of that plan, the Dis
trict Court showed entire flexibility with regard to its modifica
tion. It said that “with the cooperative efforts of the other edu
cators within the proposed Metropolitan Plan, perhaps an even
better plan will emerge” (A. 262; 338 F. Supp., at 115) ; and it
expressly stated (1) “that the Court stands ready at any time to
consider any proposed modification of the plan to be approved”
(A. 519; 338 F. Supp., at 230; see also A. 435; 338 F. Supp., at
193), and (2) that the reason why the court felt it “necessary . . .
not to await any proposed modifications, but to order the plan to
be implemented” was in order that “a metropolitan school system
[providing effective desegregation] will be in effect for the com
mencement of schools in September 1972” (A. 262; 338 F. Supp.,
at 115). Once again, then, the state and county defendants had the
opportunity to contend—if such was their contention-—that the
court’s basic ruling of the propriety and necessity of an inter
division plan ought not to be implemented by the device of con
solidation. They made no such contention, but immediately ap
pealed.
And on the appeal the Fourth Circuit, for its part, plainly
and squarely held that the District Court was required to limit
its desegregation decree within the boundaries of the City of
Richmond. One searches its opinion in vain for any suggestion
that it did not think this was the issue before it—albeit couched
somewhat hyperbolically in terms of “restructure . . . [of] in
ternal government”—or that the Fourth Circuit would have
countenanced any form of desegregation decree by the District
Court that exceeded the Richmond city lines. Plainly it was the
crossing of those lines, not the District Court’s particular manner
of crossing them, that the Court of Appeals condemned.
48
than that “degree of actual desegregation” 73 which the
Constitution as construed in Brown (I) commands74—this
73 Swann v. Char lott e-Mecklenburg Bd. of Educ., 402 U S 1
26 (1971).
74 Throughout its opinion, the Court of Appeals repeatedly treats
the District Court’s decree as one designed to achieve “racial
balance” rather than constitutionally-compelled desegregation. (See
A. 562, 565, 567-70, 578-79, 580). Closely inspected, however, this
does not mean what it appears to say. It does not mean either that
the District Court undertook to pass beyond the pale of “constitu
tional violation” into the fields of “educational, policy,” Swann,
402 U.S., at 16, or that the District Court’s decree in fact strayed
into the educational-policy field.
If the Court of Appeals did think that the District Judge was
proceeding on some theory of obligation or power to dictate a
non-constitutionally-commanded “racial balance,” then its discus
sion of state school division organization, Virginia’s supposed law
and tradition of local school administration, the Tenth Amend
ment, and about ninety-nine percent of its thirty-page opinion for
reversal were unnecessary. Reversal was compelled by one sentence
quoting Swann for the obvious proposition—which the District
Court here manifestly understood—that “judicial powers may be
exercised only on the basis of a constitutional violation,” Swann,
402 U.S., at 16. The contradistinction between mere “racial im
balance” and “state-imposed segregation in violation of Brown I ,”
Swann, 402 U.S., at 17-18, did not escape the District Judge, how
ever; and the Court of Appeals could not conceivably have thought
it did. Prom the inception of his opinion and throughout all that
follows, Judge Merhige makes uncontestably clear what he is hold-
in g :
“The Court concludes, in the context here presented, that
the duty to take whatever steps are necessary to achieve the
greatest possible degree of desegregation in formerly dual
systems by the elimination of racially identifiable schools is
not circumscribed by school division boundaries created and
maintained by the cooperative efforts of local and central
State officials. The Court also concludes that meaningful
integration in a bi-racial community, as in the instant case,
is essential to equality of education, and the failure to pro
vide it is violative of the Constitution of the United States.”
(A. 185-86; 338 P. Supp,, at 79-80.)
The Court of Appeals concedes that the District Court dis
claimed any intention of imposing a “fixed racial quota” by its
adoption of the Richmond School Board’s desegregation plan. (A.
569-70.) But it concludes that “the adoption of the Richmond
49
is a fair summary of the Fourth Circuit’s holding. Other
themes are sounded in its opinion but, insofar as these
Metropolitan Plan in toto by the district court, viewed in the
light of the stated reasons for its adoption, is the equivalent,
despite disclaimer, of the imposition of a fixed racial quota.”
(A. 570.) The key to this sentence is the Court of Appeals’ own
view of what the “adoption of the Richmond Metropolitan Plan
in toto” implied: namely, that, insofar as the plan went beyond
the Richmond city line, it went beyond the Constitution. For,
apart from that view, it could not be said—and the Court of
Appeals does not say—that the “use made of mathematical ratios
[in the Metropolitan Plan] was . . . more than a starting point
in the process of shaping a remedy,” Swann, 402 U.S., at 25, or
that the District Court required “as a matter of substantive con
stitutional right, any particular degree of racial balance or mix
ing,” id., at 24. To the contrary, the Metropolitan Plan (1) origi
nated with the Richmond School Board, not the District Court,
and was the only inter-division plan put before the Court (see
note 72, su p ra ); (2) began, and did not end, with mathematical
ratios (A. 418-31; 338 F. Supp., at 186-191); (3) contemplated
deviation from those ratios not only in proposed subdivision 6
(southern Chesterfield County) as a whole (A. 426; 338 F. Supp.,
at 189) but wherever else problems of practicality might arise
(e.g., A. 424-25; 338 F. Supp., at 188) ; and (4) was embodied in
a decree which the District Court said it stood ready to modify
at any time (see note 72 supra), and whose modification it invited
in the following unmistakable terms:
“While the viable racial mix contemplated by the plan is
educationally sound and would indeed result in a unitary
system, variations from that suggested racial mix may be
unavoidable. All parties are admonished that it is not the
intention of the Court to require a particular degree of racial
balance or mixing. If in the implementation of the plan im
proved modifications seem appropriate, the Court stands ready
to entertain them.” (A. 519-20; 338 F. Supp., at 230.)
On this record, then, the Court of Appeals’ attribution of a
“racial balance” order to the District Court is not explained by
anything the District Court said or did. That attribution derives,
rather, from the disagreement of the Court of Appeals with the
District Court upon the one key issue in the case: the significance
of school district lines as limits upon the federal courts’ remedial
obligation and power under Brown (II) and Swann. (See text,
in fra). Put simply, the Fourth Circuit took the view that school
district lines marked the confines of Brown; that, once the maxi
mum feasible desegregation that could be achieved without cross-
50
contribute to the result, they all boil down to the proposi
tion that Brown (I) is to be applied only within the walls
of individual school districts.75 School district lines drawn
ing those lines had been achieved, each individual district divided
by the hues was “unitary” (see note 75, infra) ■ and that, at that
point ̂ state-imposed segregation . . , [had] been completely re
moved,’ . . . [and] further intervention by the district court was
neither necessary nor justifiable.” (A. 581.) Since the District
Judge persisted in intervening beyond this point, he must—in the
Fourth Circuit’s perception—have been trying to achieve “racial
balance,” not desegregation.
Racial balance is thus the Fourth Circuit’s term for desegrega
tion pushed too fa r ; it is an appellate conclusion, not a description
of what the trial court d id; and there would be less accuracy in
saying that the District Judge here was forbidden to cross school
district lines because he sought “racial balance” than that he was
found to have sought racial balance” because he crossed for
bidden school district lines. The critical question remains, as we
next develop in the text, whether crossing lines is (as the Court
of Appeals held) or is not (as the District Court held) forbidden.
75 The Court of Appeals states this proposition in two principal
ways, and suggests it in a third:
The first way begins with the Tenth Amendment premise that
‘ [o]ne of the powers . . . reserved to the states is the power to
structure their internal government” (A. 579), and proceeds to the
conclusion that school district lines, as components of that struc
ture, may not be breached by a federal court unless they have been
“ ‘used as an instrument for circumventing’ ” constitutional rights
of racial equality (see A. 580). In this formulation, the Fourth
Circuit apparently conceives an “instrument” as something “in
tended to circumvent” the Constitution (A. 580); hence it holds
that the boundary lines of local governmental units are unalterable
by a federal court seeking means to effect desegregation “absent
invidious discrimination in the establishment or maintenance of .
[those] units” (A. 562), or invidious “motivation” in the place
ment of the lines (see notes 76-79, in fra). Related to this theory
is the Courts statement that “ [t]o approve the consolidation of
these three school districts would require us to ignore the tradition
and history of the Commonwealth of Virginia with respect to its
establishment and operation of schools, as well as hold invalid vari
ous enactments of the Legislature of Virginia structuring Virginia’s
system of free public schools” (A. 575; see also A. 570-71 575-78)
Notably, the tradition and history of Virginia have been to prefer
school segregation to local school district autonomy, while pre
ferring local school district autonomy to desegregation. (See pp
51
up pursuant to state law establish the absolute, unbudge-
able outer limits of federal-court desegregation decrees,
except where the federal court can find as a fact that the
drawing of the lines was racially “motivated,” 76 or
5-14, supra; pp. 68-69, infra). And to break with this tradition by
crossing school district lines for the purpose of desegregation, as
the District Court did, does not require the invalidation of any
Virginia statutes: it requires only recognition that, by reason of
the Supremacy Clause, no Virginia statutes (whether or not they
are otherwise valid) can confine the power of a federal court to
“consider the use of all available techniques” for dismantling dual
school systems, Davis v. Board of School Comm’rs, 402 U.S. 33, 37
(1971). In this setting, the Fourth Circuit’s invocation of Vir
ginia tradition and law highlight the inflexible character of its
Tenth Amendment holding.
Its second major way of asserting the inviolability of school dis
trict lines is to treat individual school districts, which concededly
have long maintained the sort of dual school systems condemned by
Brown (I), as becoming “unitary” and thus escaping the remedial
powers of the federal courts under Brown (II), so soon as de
segregation has been pursued to the fullest extent that it can be
pursued within the separate boundaries of each district and with
out crossing district lines. (See A. 563, 564-65, 571-72, 580-81,
582-83.) Unless “there was ever joint interaction between any two
of the units involved (or by higher state officers) for the purpose
of keeping one unit relatively white by confining blacks to an
other” (A. 572), the units are to be viewed as watertight com
partments for purposes of the application of both Brown (I) and
Brown (II). (See A. 582-83.) The Fourth Circuit can find no such
joint interaction in the case of Richmond, Chesterfield and Henrico
(A. 572-74), in part because racial discrimination has been so
pervasively practiced in all three that it could not have differen
tially driven blacks from one to the other (A. 573-74.)
Third, the Court of Appeals expresses concern over various prac
tical problems that it perceives in the District Courts’ inter-district
desegregation plan (A. 566, 575-76,578-79), although it nowhere
suggests that these problems approach the level of magnitude
which would justify reversing a district judge’s discretion under
Swann. See 402 U.S., at 31. This is to say that the Swann princi
ples are inapplicable across school district lines. See pp. 52-53
next following.
76 “It is not contended . . . that the establishment of the school
district lines more than 100 years ago was invidiously motivated.
We have searched the 325-page opinion of the district court in vain
for the slightest scintilla of evidence that the boundary lines of
52
“invidious,” 77 or “intended” 78 or had the “purpose” 79 to
segregate the public schools by race.
The precise nature of this holding appears starkly when
the result that it ordains for Richmond-Chesterfield-Hen-
rico is compared with the result approved for Charlotte-
Mecklenburg by this Court in Swann*0 If Virginia law had
constituted Richmond and the two entirely surrounding
counties as a single school district, in the way that North
Carolina law includes the City of Charlotte and the County
of Mecklenburg within a single district, there is not the
faintest shadow of a doubt that the Fourth Circuit would
have affirmed—and would have been required by Swann to
affirm—the District Court’s desegregation order here. This
is to say that, notwithstanding the several different ways
in which the Court of Appeals phrases its grounds for re
versal,81 each depends decisively upon the bedrock notion
the three local governmental units have been maintained either
long ago or recently for the purpose of perpetuating racial dis
crimination in the public schools.” (A. 571.)
77 “ . ._. [I] t is not established that the racial composition of the
schools in the City of Richmond and the counties is the result of
invidious state action.” (A. 582-83; see also the paragraph quoted
in text on p. 46, supra.
78 “The facts of this case do not establish . . . that state establish
ment and maintenance of school districts coterminous with the
political subdivisions of the City of Richmond and the Counties
. . . have been intended to circumvent any federally protected
right.” (A. 580.)
79 “But neither the record nor the opinion of the district court
even suggests^ that there was ever joint interaction between any
two of the units involved (or by higher state officers) for the pur
pose of keeping one unit relatively white by confining blacks to
another.” (A. 572; see also note 76 supra.)
80 Swann v. GharloUe-Mecklenburg Bd. of Educ., 402 U.S. 1
(1971) [hereafter sometimes cited as Swann],
81 These various phrasings and their relevance to the critical hold
ing of the Court of Appeals are analyzed in notes 72-75, supra.
53
that school district lines confine a State’s constitutional ob
ligation under Brown (I) and the federal courts’ remedial
powers under Brown (II) and Swann.
The Fourth Circuit does not and could not hold either
(A) that the Virginia schools within the Richmond-Chester-
field-Henrico area, viewed without regard to the lines that
subdivide this area into three school “divisions,” are uni
tary,82 or (B) that Judge Merhige’s plan for converting the
schools within the Richmond-Chesterfield-Henrico area “to
a unitary system in which racial discrimination would be
eliminated root and branch” 83 was, ivithout regard to the
lines that subdivide this area into three school “divisions,”
an abuse of the “equitable remedial discretion of the Dis
trict Court” 84 whose “breadth and flexibility” were con
firmed in Swann *5 Rather, it holds precisely that, because
of those “division” lines, the District Court was power
less86 to enter a decree which would otherwise have been
unassailably proper.
82 The courts below and other lower courts use the term “unitary,”
as this Court did in Green v. County School Bd., 391 U.S. 430, 438
(1968), and Alexander v. Holmes County Bd. of Educ., 396 U.S.
19, 20 (1969), to denote school systems that comply with the con
stitutional obligation of Brown (I).
83 Green v. County School Bd., 391 U.S. 430, 438 (1968),
84 Swann, 402 U.S., at 25; see id., at 15-16.
85 4 02 U.S., at 15; see id., at 27.
86 The Court of Appeals plainly did not hold merely that the
location of school district lines was one important factor to be con
sidered in devising the pupil-assignment phase of a desegregation
plan, or that such lines should not be crossed without a finding
their crossing was necessary for effective desegregation. Judge
Merhige was palpably aware of both these points, and could not
conceivably have been reversed on the theory that he ignored them.
From first to last, the Fourth Circuit’s opinion makes plain that
it is concerned with the limits of power, not with those of discre
tion. (E.g., A. 562, 563, 579-83.)
54
There lias been no blinking the consequences, as Mr.
Justice Cadozo was wont to say. The Constitution may fol
low the flag, but not across a school district line. School
district boundary lines, at least where they are not factually
proved to have been drawn with racial discrimination in
mind, fix categorically the outer limits of “the broad re
medial powers of a court” 87 to desegregate the schools.
The measure of a desegregation plan “is its effectiveness”88
—right up to the school district line. At that point, its
measure is the line, whether or not a single-district plan
effectively desegregates. Because “ [t]here is no universal
answer to complex problems of desegregation,” 89 federal
district courts “may and should consider the use of all
available techniques,” 90 and the “flat” or the “absolute pro
hibition” of any useful technique is itself unconstitutional.91
But these principles also run only to the school district
line: federal equity is flatly and absolutely forbidden to
cross that line itself.
B. This D ecision C ritically Im pa irs th e P ow ers o f th e F ederal
C ourts to D o th e d i a l and Difficult Joh o f D esegregating
th e Schools o f th e N ation’s M etropo litan G hettos.
The Fourth Circuit’s categorical prohibition of desegre
gation orders crossing school district lines gravely im
perils the ability of the federal courts to solve the country’s
most critical and intractable school desegregation prob
lem: bringing Brown v. Board of Education to the metro
politan ghetto. The segregation and isolation of racially
87 Swann, 402 U.S., at 27.
88 Davis v. Board of School Comm’rs, 402 U.S. 33, 37 (1971).
89 Green v. County School Bd., 391 U.S. 430, 430 (1968).
90 Davis v. Board of School Comm’rs, 402 U.S. 33, 37 (1971).
91 North Carolina State Bd. of Educ. v. Swann, 402 U.S. 43, 46
55
identifiable center-city schools in metropolitan regions,
which is not merely persisting- but actually increasing-
under the shelter of the artificial lines of school district
boundaries, presents the challenge of the 1970’s to the
vitality of Brown (I) and Brown (II). It prolongs and
proliferates the evils that Brown condemned; and it will
prove to be essentially insoluble so long as school dis
trict lines are treated as legally sacrosanct.
Over the past three decades and today, one of the most
profound among the forces changing the contours of Amer
ican society has been and is increasng urbanization. North
and South, the greatest growths in population have come
in areas surrounding cities. Large cities have grown more
numerous and larger. In part this tendency is reflected
by the consistent addition to the roster of the Bureau
of the Census of new Standard Metropolitan Statistical
Areas (SMSA’s), defined as counties containing at least
one city of 50,000 or more inhabitants, together with those
adjacent counties that are metropolitan in character and
are integrated economically and socially with the county
of the central city.92 In part, the tendency is marked by
increases in the populations of existing SMSA’s.
For no population group is this increasing urbanization
more pronounced than for America’s blacks.93 The dis
integration of the traditional Southern rural economy that
began at the time of the Great Depression has resulted in
one of the greatest population movements in history as
displaced agricultural workers have sought relief from
92 See United States B ureau op th e B udget, Office of
Statistical Standards, Standard Metropolitan Statistical
A reas (1967), which sets forth and develops these criteria.
93 N ational A dvisory Commission on Civil D isorders, R eport
(G.P.O. 1968 0-291-729) (1968) [hereafter cited as K eener Com
mission], 115-121, 215-216.
56
economic piivation in the more industrial urban centers.
Twenty million Americans have left the land and moved to
urban areas since 1940, “marking it as one of the greatest
mass dislocations in United States history and making’ it
comparable to the movement of twenty-two million immi
grants to American shores between 1890 and 1930, a pe
riod of four decades.” 94
Black Americans, as the most marginal element in the
rural economy, have been disproportionately represented in
this great migration.96 They are now “more urbanized,
and more metropolitan, than the white population.” 96
Within metropolitan regions, they tend to occupy the center
cities, while the whites inhabit the suburbs.97 Indeed, met
ropolitan center cities have seen a net white population
loss.98 Yet this latter phenomenon—-sometimes spoken of
as “white outflow” 99 or “white flight”-appears less im
portant than differential racial immigration to the center
city and the suburbs, respectively, in producing the increas
ing racial separation that is characteristic of the me
tropolis :
• • ■ Between 1940 and 1960 the total population of
metropolitan areas increased by 40 million persons.
Eighty-four percent of the Negro increase occurred in
the central cities and 80 percent of the white increase
m the suburbs- Btween 1950 and 1960 the suburbaniza-
Piven & Cloward, R egulating th e P oor 214 (1971)
95 Ibid.
96 K eener Commission 118.
97 Id., at 118-120.
98 Ibid.
99 Id., at 119.
57
tion of whites accelerated: nearly 90 percent of their
metropolitan increase occurred in the suburbs.
School-age children in metropolitan areas also re
flect these trends. Between 1950 and 1960, the school-
age population of the Nation’s 24 largest metropolitan
areas—which today contain almost two-thirds of the
Nation’s urban school-age population—increased by 5
million. Almost 90 percent of the nonwhite increase oc
curred in the central cities; more than 80 percent of
the white increase was in the suburbs. By 1960, four
out of five nonwhite metropolitan children of school
age lived in central cities, while nearly three-fifths of
the white children lived in the suburbs.
The rich variety of the Nation’s urban population
is being separated into distinct groups, living increas
ingly in isolation from each other. In metropolitan
areas there is a growing separation between the poor
and the affluent, between the well educated and the
poorly educated, between Negroes and Whites. The
racial, economic and social stratification of cities and
suburbs is reflected in similar stratification in city and
suburban school districts.100
The Richmond SMSA, and the three units of that area
which are the principals in this present case—the City
of Richmond, Chesterfield County, and Henrico County—
exemplify these demographic developments, as illustrated
by the following table:
1001 U nited States Commission on Civil R ights, R eport :
R acial I solation in the P ublic Schools (G.P.O. 1967 0-243-637)
(1967) [hereafter cited as Civil Rights Commission], 11-12, 17.
58
P opulation W it h in the R ichmond SMSA101
1950 I960 1970
popula
tion
% non
white
popula
tion
% non
white
popula
tion
% non-
white
Richmond 230,310 31.7 219,958 42.0 249,430102 42.4102
Chesterfield 40,400 20.9 71,197 13.3 77,046102 11.5102
Henrico 57,340 9.9 117,339 5.2 154,364 6.8
The same patterns appear in metropolitan areas across
the Nation. Consider the 1960-1970 figures for the follow
ing SMSA’s :
P opulation Change foe W h ite and B lack P opulation
in Selected Metropolitan A eeas of 500,000 or More,
by Central City and R ing— 1960 to 1970103
SM SA,
central city and ring
Percent of
population white
1960 1970
N orthern Cities
New York .................... 88.0 82.0
Central city ......... 85.3 76.6
Suburbs .................... 95.0 93.6
Detroit, Mich............... 84.9 81.4
Central city ............ 70.8 55.5
Suburbs .................... 96.2 96.0
Percent of
population black
1960 1970
11.5 16.3
14.0 21.2
4.8 5.9
14.9 18.0
28.9 43.7
3.7 3.6
1 Sources: United States D ept , of Commerce, B ureau of
the Census, II Census of P opulation : 1950 (G.P.O. 1952), 46-29,
46-30; United States D ept , of Commerce, B ureau of the Census’
I Census of P opulation : 1960 (G.P.O. 1961), 48-28; United
States D ept , of Commerce, B ureau of the Census Census of
P opulation : 1970 (G.P.O. PC (1)-B48, Oct. 1971), 48-42 (cor
rection page), 48-44.
The Richmond and Chesterfield figures for 1970 are affected
by Richmond’s annexation, on January 1, 1970, of an area of
Chesterfield County containing 47,262 persons, 97% white. With
out that annexation, the differential population growth and racial
change trends shown by the table would be even more marked.
103 Hearings Before the Senate Select Committee on Equal E d
ucational Opportunity, 92nd Cong., 1st Sess., on Equal Educational
Opportunity, Part 21, Metropolitan Aspects of Educational In
equality (Nov. 22, 23, 30, 1971), 10913.
59
Percent of Percent of
SM SA, population white population Mack
central city and ring 1960 1970 1960 1970
Northern Cities
Chicago, 111...... ........... - 85.2 81.3 14.3 17.6
Central city ........... . 76.4 65.6 22.9 32.7
Suburbs ...........-....... . 96.9 96.0 2.9 3.5
Philadelphia, Pa......... . 84.3 81.9 15.5 17.5
Central city .... ...... . 73.2 65.6 26.4 33.6
Suburbs ................... . 93.8 92.9 6.1 6.6
San Francisco-
Oakland, Calif............ . 87.5 82.8 8.5 10.6
San Francisco ...... . 79.0 74.1 10.0 13.4
Oakland ................... 59.1 22.8 34.5
Suburbs ................... . 93.7 91.0 4.4 5 A
Baltimore, Md............. . 78.3 75.8 21.4 23.7
Central city ........... . 65.1 53.0 34.7 46.4
Suburbs ................... . 92.8 93.5 7.0 6.0
Washington, D.C......... . 75.5 74.3 23.9 24.6
Central c ity ............. . 45.6 27.6 53.9 71.1
Suburbs ................... . 93.3 91.0 6.3 7.9
Southern Cities
Atlanta, 6a .................. . 77.2 77.4 22.8 22.3
Central city ........... . 61.8 48.5 38.3 51.3
Suburbs ................... . 91.3 93.6 8.5 6.2
Houston, Tex............ . 80.3 79.9 19.5 19.3
Central city ........... . 76.9 73,3 22.9 25.7
Suburbs ................... . 86.9 90.7 12.9 8.8
New Orleans, La....... . 69.1 68.6 30.6 31.0
Central city .... ...... . 62.6 54.5 37.2 45.0
Suburbs ................... . 83.9 87.2 15.9 12.5
These raw population figures, moreover, significantly un
derreport the percentages of black students in the center-
city metropolitan schools. Black school population ratios
consistently run ahead of black total population ratios for
several reasons: the fact that the black population is rela
tively younger than the white, and has more school-age
children;104 the fact that whites, far more frequently than
104 K eener Commission 240.
60
blacks, can afford and choose private schools ;105 and the
fact that “[pjeople gravitate toward school facilities” 106
to the extent that they are mobile, so that many middle-
class whites who have or expect children gravitate toward
the suburban schools.107 Thus, Richmond’s public school
population was 69 percent black in 1971 (A. 521; 338 F.
Supp., at 231); and blacks comprise the following per
centages of the public school population, according to the
latest available figures, in the several SMSA’s whose total
black-white population ratios are set forth immediately
above: New York, 34.5% ; Detroit, 63.8% ; Chicago, 54.8% ;
Philadelphia, 60.5%; San Francisco, 28.5%; Oakland,
56.9%; Baltimore, 67.1%; Washington, D.C., 94.6%; At
lanta, 68.7%; Houston, 35.6%; New Orleans, 69.5%.108
Thus, a considerable number of our great central cities
are increasingly becoming black enclaves, readily identifi
able as such, surrounded by white suburbs. It is impossible
to say, of course, without detailed judicial investigation,
how many of these cities represent dual school systems
within the prohibition of Brown (I).109 Nonetheless, the
106 Id., at 237.
106 Swann, 402 U.S., at 20.
107 K eener Commission 119.
. 108 These figures, compiled by the Department of Health, Educa
tion and Welfare, appear in 117 Cong. Ree. S17516-S17518 (daily
ed., Nov. 3, 1971). J
After suggesting that “the root causes of the concentration
ot blacks in the inner cities of America are simply not known”
(A. 574-75), the Court of Appeals below speculated that “the forces
influencing demographic patterns in New York, Chicago, Detroit,
Los Angeles, Atlanta and other metropolitan areas have operated
in the same way in the Richmond metropolitan area to produce the
same result. . . . Whatever the basic causes, it has not been school
assignments, and school assignments cannot reverse the trend.”
(A. 575.) Cases coming from these other cities, we respectfully
suggest, ̂ must await examination on their own records. But it is
interesting to note that, insofar as the cities mentioned have come
61
total number of black children consigned to schooling in
racially identifiable schools within such systems today, and
who therefore face a future of unconstitutional segregated
education isolated from their white suburban counterparts,
must be of enormous magnitude by any calculation.
If all of these children were so fortunate as to live in
cities which, by the happenstance of state law, were or
ganized together with their white surrounding metropolitan
suburbs into single school districts, they should yet have
the benefits of Brown. This is exactly what Swann v.
Charlotte-Mecklenburg Board of Education promises. But,
unlike Charlotte-Mecklenburg, many metropolitan areas do
not constitute single school districts. To the contrary, the
227 SMSA’s recognized in the United States as of 1967110
had among them 5018 separate, independent school districts,
in addition to 511 dependent school systems, an average
of more than twenty-five apiece.111 This total, it is true,
has been sharply decreasing112 as more and more metro
politan entities recognize the educational advantages of
consolidation. Not the least pernicious feature of the Court
under careful judicial scrutiny, courts conversant with the relevant
facts have found unconstitutional school segregation, United States
v. School District No. 151, 286 P. Supp. 786 (N.D. 111. 1968),
ajf’d, 404 F.2d 1125 (7th Cir. 1968), on remand, 301 Supp. 201
(N.D. 111. 1968) (area of Chicago SMSA) ; Bradley v. MilliJcen,
338 P. Supp. 582 (B.D. Mich. 1971), subsequent history, see n. 122,
infra (Detroit) ; Crawford v. Board of Education. Super. Ct.,
L.A. Cty., No. 822-854, opinion of February 11, 1970 (Los Angeles)
(appeal pending); Spangler v. Pasadena City Board of Education,
311 P. Supp. 501 (C.D. Cal. 1970), order denying intervention of
additional parties ajf’d, 427 F.2d 1352 (9th Cir. 1970) (area of Los
Angeles (SM SA ); e.g., Calhoun v. Cook, 451 F.2d 583 (5th Cir.
1971) (Atlanta).
110 This excludes the SMSA’s of Puerto Bico but includes
Hawaii’s.
111 United States D ept , op Commerce, B ureau op the Census,
5 Census op Governments: 1967 (1968), 1.
112 Ibid.
62
of Appeals’ decision below is the incentive that it offers
to the suburbs to resist this development.
In the context of American urban living patterns as
they now are and are increasingly becoming—of our black
cities and our white suburbs—school district lines fre
quently function as walls of separation of the races. Their
contribution to black isolation in the center city metro
politan schools has been recognized;113 and some at least
of these metropolitan school systems “appear to be com
pletely beyond hope of meaningful desegregation, absent
some dramatic change in their boundaries.” 114 This is
certainly not to say that, in every multi-district metropoli
tan region where unconstitutional racial segregation is ju
dicially found to be persisting in violation of B ro w n (I),
a desegregation plan that crosses the district lines—still
less, any particular form of inter-district desegregation
plan—should be required. It is to say that, in such areas,
inter-district plans must be among the “available tech
niques” 115 that the federal district courts can consider
in the exercise of their discretion, if they are to meet
the obligation of B ro w n (II) and S w a n n to devise deseg
regation decrees that will “work” 116 in the Nation’s cities.
By categorically denying federal judicial power to cross
school district lines, even where the most compelling needs
and “practicalities” 117 of desegregation make that course
necessary and proper, the Fourth Circuit’s judgment here
113 Civil R ights Commission 17-18.
114 United States v. Board of School Commissioners, 332 F Supp
655, 677 (S.D. Ind. 1971).
116 Davis v. Board of School Comm’rs, 402 U.S. 33, 37 (1971);
see also North Carolina State Bd. of Educ. v. Sivann, 402 U S 43’
46 (1971).
116 Green v. County School Board, 391 U.S. 430, 439 (1968).
117 Davis v. Board of School Comm’rs, 402 U.S. 33, 37 (1971).
63
equally categorically denies the hope of Brown to the
black children of “these cities, [where] solutions not in
volving suburban participation no longer are possible.” 118
That is a tragic enough result, but far more tragic in its
consequences: the acceleration of the movement deplored
by the Kerner Commission, “toward two societies, one
black, one white—separate and unequal.” U9>120
118 Civil E ights Commission 154.
119 K erner Commission 1.
120 We need hardly add that, although its implications are nation
wide, a rule fixing territorial limits to Brown will provide especial
eomfort in those States and cities where, during eighteen years,
every conceivable device of “ [d]eliberate resistance” and “dilatory
tactics,” Swann, 402 U.S., at 13, has been opposed to desegregation
with seemingly tireless energy. By promising whites safe haven
behind school district lines, the Fourth Circuit’s decision will un
questionably encourage them to seek such havens out and, once
there, to employ every public and private means at their disposal to
keep them as white as possible. Some of these means (such as
rejection of school district consolidation proposals, of public housing
projects, of zoning variances for uses threatening to attract black
employees) are essentially undetectable; others (such as inflation
of property values by the premium paid to purchase the assurance
of all-white schools) are innately uncorrectable; still others (such
as intimidation of prospective black occupants) are correctable in
theory but not in fact. It is one thing, as this Court said in Swann,
402 U.S., at 22, not to load a school ease with more baggage than
it can carry; but it is quite another, as the Fourth Circuit has
done here, in deciding a school case, to throw the baggage out in
the road where it will foreseeably cause these sorts of “accidents.”
64
II.
Questions Raised by the Fourth Circuit’s Decision
Require Authoritative Resolution By This Court, for the
Guidance of the Lower Courts in Numerous Cases.
A. T he Decision Conflicts W ith Decisions in O ther Circuits.
The Fourth Circuit’s holding that federal desegregation
decrees may not cross school district boundary lines, absent
a showing that the lines were drawn for discriminatory
motives, conflicts with decisions of the Fifth Circuit121 and
of a district court in the Sixth,122 and is inconsistent, at the
least, with the approach taken to a multi-district case by the
121 In Calhoun v. Cook, 332 F. Supp. 804 (N.D. Ga. 1971), the
district court made slight amendments to earlier orders that had
been put into effect regarding the Atlanta school system, and then
provided that, after six months, a final order would enter declaring
the Atlanta system unitary and dismissing the lawsuit. In a “Com
ment,” it suggested that school officials and others might well under
take voluntarily to investigate the possibility of consolidating the
Atlanta school system with that of surrounding Fulton County.
Id., at 809-810. On appeal taken by the plaintiffs, the Fifth Circuit
reversed and ordered, inter alia, that the district court “consider
and make supplementary findings of fact and conclusions of law
on the wide range reevaluation of the Atlanta school system de-
cribed in the . . . ‘Comment’.” Calhoun v. Cook, 451 F.2d 583 (5th
Cir. 1971).
122 Following its opinion in Bradley v. Milliken, 338 F. Supp.
582 (E.D. Mich. 1971), the district court held extended hearings
upon the legality and propriety of its granting relief that extended
beyond the confines of the Detroit school district. By opinions and
orders of March 24 and 28, June 14 and July 11, 1972, it concluded
that inter-district relief in the form of a Detroit-area metropolitan
plan was lawful and appropriate, and it decreed such a plan. Brad
ley v. Milliken, U.S.D.C., E.D. MieL, C.A. No. 35257. The defen
dants have appealed, and the appeal is presently pending sub nom.
Bradley v. Milliken, 6th Cir., No. 72-8002. Oral argument has been
had, and the case is submitted for decision.
65
Eighth Circuit.123 Its discovery that the Tenth Amendment
constitutes an outright bar against the prudential use of
school district consolidation as a desegregation tool casts
into doubt, more generally, the developing line of cases
that have found no such doctrinal impediment to ordering
consolidation where factually appropriate in a variety of
situations.124
B. T he D ecision Hus Im m ed ia te Im plica tion s fo r the
Efficient Conduct o f L itiga tion P en din g in Seven
C ircuits.
The impact of a decision which curtails this developing
body of remedial law in the abrupt fashion of the Fourth
Circuit here will be both widespread and immediate. School
cases seeking metropolitan desegregation by means of multi
district plans are presently pending in the district courts
of at least six circuits in addition to the Fourth: hearings
on metropolitan-area relief have been ordered in Indianap-
123 The extent to which the decision below conflicts with Haney v.
County Bd. of Educ., 410 F.2d 920 (8th Cir. 1969), subsequent
history in 429 F.2d 364 (8th Cir. 1970), depends upon the meaning
of the “invidious motivation” test coined by the Fourth Circuit.
Whether or not it would reach the facts of Haney is uncertain.
What is certain is that the Eighth Circuit itself eschewed a test of
“intentional gerrymandering of district lines for racial reasons,”
410 F .2d, at 924, which is apparently what the Fourth Circuit’s test
amounts to.
124 Taylor v. Coahoma County School Dist., 330 F. Supp. 174
(N.D. Miss. 1970-1971), aff’d, 444 F.2d 221 (5th Cir. 1971) ; United
States v. Texas, 321 F. Supp. 1043 (E.D. Tex. 1970), 330 F. Supp.
235 (E.D. Tex. 1971), modified and aff’d, 447 F.2d 441 (5th Cir.
1971); Lee v. Macon County Bd. of Educ., 448 F.2d 746 (5th Cir.
1971), 455 F.2d 978 (5th Cir. 1972). Pairing of schools across
school district lines was also ordered in Robinson v. Shelby County
Bd. of Educ., 330 F. Supp. 837 (W.D. Tenn. 1971) order aff’d,
6th Cir., No. 71-1966 (Sept. 21, 1972).
66
olis,125 and complaints seeking such relief are under con
sideration in numerous other cities.126 If the Fourth Circuit
decision below is correct, these litigations should be radi
cally reshaped: if it is incorrect, they should be taken out
of its shadow; and, in either event, they should not be con
fused and delayed by disputes about its correctness and
meaning which this Court could authoritatively set to rest.
Metropolitan desegregation, long overdue, is now pro
ceeding apace. But following the decision below, its effective
progress urgently requires guidance that only this Court
can provide.
126 United States v. Board of School Comm’rs, 332 F. Supp. 655
(S.D. Ind. 1971), mandamus denied, 7th Cir., No. 72-1063 (Feb. 2,
1972), cert, denied, 32 L.ed.2d 805 (1972).
126 E.g., Morgan v. Eennigan, D. Mass., Civ. No. 72-911-G (Bos
ton) ; Lum pkin v. Dempsey, D. Conn., Civ. No. 13,716 (Hartford)
(motion to dismiss denied by order of January 22, 1971, Smith,
C.J., and Blumenfeld and Clairie, JJ . ) ; A rthur v. Nyquist, W.D.
N.Y., Civ. No. 1972-325 (Buffalo); Evans v. Buchanan, D. Del.,
Civ. No. 1816 (W ilmington); Wheeler v. Durham City Bd. of
Educ., M.D.N.C., Civ. No. C-54-D-60 (Durham); Calhoun v. Cook,
N.D. Ga., Civ. No. 6298 (Atlanta) (supplemental and amended
complaint seeking metropolitan relief filed after remand by the
Fifth Circuit, note 121 supra) ; H aycraft v. Bd. of Educ., W.D.
Ivy., Civ. No. 7291-G (Louisville); Higgins v. Grand Rapids Bd.
of Educ., W.D. Mich., Civ. No. 6389 (Grand Rapids) ; Brinkman
v. Gilligan, S.D. Ohio, Civ. No. 72-137 (Dayton). See generally
Note, Merging B rian and Suburban School Systems, 60 Geo L J
1279 (1972).
67
III.
This Case Presents an Excellent Opportunity for the
Court to Consider, and to Guide the Lower Courts in
Consideration of, the Question of Multi-District De
segregation Decrees in the Metropolitan Context.
Several features make this Richmond case especially
opportune as a vehicle for the Court’s initial consideration
of the propriety of multi-district metropolitan desegrega
tion plans. The Fourth Circuit’s decision turns upon a
sharply focused issue of constitutional law, unobscured by
significant factual controversies or by debatable judgments
relating to the exercise of equitable discretion under Swann
and the scope of its appellate review. (Part 1(A), supra.)
The legal issue is pivotal: it emerges against the back
ground of the familiar history of public school segregation
in Virginia with which this Court has dealt many times
between Brown (I) and Wright v. Council of the City of
Emporia,12,1 and it stands at the threshold of the problems
of effective metropolitan desegregation. Its resolution in
this case is not complicated by state-law problems, since
Virginia law provides all the means of implementation of
the inter-district plan decreed by the District Court. (A.
195, 538-40; 338 F. Supp. at 84, 245-246.)128 Nor is it compli-
127 33 L.ed.2d 51 (1972). See note 2 supra.
128 The Court of Appeals is simply wrong that “ [t]o approve the
consolidation of these three school districts would require us to . . .
hold invalid various enactments of the Legislature of Virginia
structuring Virginia’s system of free public schools” (A. 575). The
consolidation ordered by the District Court is entirely consonant
with Virginia law allowing and providing detailed mechanisms for
the consolidation of school districts, except on one single point.
That point is the provision of Va. Code §22-30, “enacted since the
joinder of state and county defendants in this case” (A. 228; 338
F. Supp., at 99), which prohibits the State Board of Education
68
cated by the presence of an excessive number of school
districts: only three are involved.
It is no accident, moreover, that the Fourth Circuit
laid its decision upon the broad legal ground of the Tenth
Amendment. For if federal judicial power to cross school
district lines in fashioning desegregation decrees exists in
any situation short of active, “intentional gerry-mandering
of district lines for racial reasons,” 129 the Richmond Vir
ginia situation presents an extreme case calling for the
exercise of that power. This is so for several reasons:
(A) As we have pointed out at pp. 5-13, 20, supra,
Virginia’s school district lines which are now erected as
insurmountable barriers against desegregation have his
torically “been ignored when necessary to serve public edu
cational policies, including segregation.” (A. 257; 338 F.
Supp., at 113; see also A. 193, 231, 352-64; 338 F. Supp.,
at 83, 100, 155-161.) They “have never been obstacles for
the travel of pupils under various schemes, some of them
centrally administered, some of them overtly intended to
promote the dual system.” (A. 193; 338 F. Supp., at 83.)
from creating school districts composed of more than a single city
or county without consent of the local school boards and governing
bodies. This provision does not oppose any obstacle to the District
Court’s decree except the obstacle that is instinct in any situation
where a judicial decree is called for—the unwillingness of the party
against whom the decree runs to do what it compels without its
compulsion. It need not be held “invalid” for the obvious reason
that, whether valid or invalid, it cannot trammel the power of a
federal court of equity, see, e.g., Haney v. County Bd. of Educ.,
429 F.2d 364, 368-369 (8th Cir. 1970); but to the extent that this
latter proposition amounts to a narrow ground of “invalidation”
of the provision as applied under the Supremacy Clause, that, is no
novel or troublesome result. North Carolina State Bd. of Educ. v.
Swann, 402 U.S. 43 (1971).
129 Haney v. County Bd. of Educ., 410 F.2d 920, 924 (8th Cir.
1969).
69
Not only have children been assigned to schools across
those lines—most notably, black children sent to black
schools pursuant to the policy of apartheid—{ibid.), but
the entire structure of local school-district autonomy was
promptly scrapped in the first throes of Virigina’s massive
resistance to Brown (I), and thereafter reassumed subject
to various segregatory exceptions such as tuition grants
(see pp. 6-13, supra; A. 194, 212-20, 271-81, 313-31; 338 F.
Supp., at 84, 92-95, 119-123, 138-146). Apart from the
obvious point that “[b]arriers which did not prevent en
forced segregation in the past [should] . . . not be held
to prevent conversion to a full unitary sustem,” 130 this
history amply supports the District Court’s finding that
the present resistance to an inter-district desegregation
plan has little to do with concerns about local government,
but is “racially based.” 131
(B) Both courts below were thoroughly agreed that
within the school district boundary lines of the City of
Richmond, nothing more can be done than has already been
done to “disestablish . . . the formerly state-imposed dual
school system.” (A. 563.) This finding is at once the basis
upon which the District Court concluded that a metro
politan school desegregation plan was factually neces-
130 Henry v. Clarksdale Municipal Separate School Dist., 433 P 2d
387, 394 (5th Cir. 1970).
131 “Considering the historic flexibility of political subdivisions in
the state and in this area in matters of pupil exchange across politi
cal boundaries and in the cooperative operation of other public
utilities, in view of the several statutory patterns—part of the
public policy of the state—under which cooperative ventures can
be undertaken, and in view of the fact that school operation in the
counties has always entailed transportation times and distances
similar to those involved in the suggested metropolitan plan, re
sistance to the proposal appears clearly to be racially based.” (A.
231; 338 P. Supp., at 100.)
70
sary,133 and the basis upon which the Court of Appeals
conversely concluded that the Richmond school system was
legally “unitary” (A. 563, 571-72). But it is also undisputed
and indisputable that this “unitary” system consists of
a black island in a white sea. (See pp. 34-35, supra.)
Richmond, containing a school population that is 69%
black133 (with one-fifth of its schools ranging from 80%
to 89% black) (A. 530-32; 338 F. Supp., at 240-242), is en
tirely surrounded by two counties whose school population
is 91% white.134 As between Richmond and the counties,
“great disparities in 1971 racial composition . . . [make]
both individual facilities and entire systems racially iden
tifiable.” (A. 186; 338 F. Supp., at 80.)
Black Richmond schools and white county school lie
virtually on top of one another. Richmond’s 78% black
John Marshall High School is 1.4 miles (eight blocks) from
the 96.1% white Henrico High School; Richmond’s 85%
black Highland Park School is 1.3 miles from Henrico’s
99.8% white Glen Lea School; and the District Court’s
opinion identifies nine other “schools of extremely divergent
racial composition . . . located a very short distance apart”
(A. 428; 338 F. Supp., at 190) across the school district
lines. It is little wonder that an expert witness for the
county and state defendants “conceded that a child, observ-
132 “ . . . [T]he ‘desegregation’ of schools within the city and the
counties separately is pathetically incomplete. Not only is the elim
ination of racially identifiable facilities impossible of attainment,
but the partial efforts taken contain the seeds of their own frustra
tion.” (A. 237; 338 F. Supp., at 103; see also, A. 230; 338 F. Supp.,
at 100.)
133 For the 1971-1972 school year, 13,500 white students and
29,747 black students were enrolled in the Richmond schools. (A.
417; 338 F. Supp., at 185.)
134 In 1971-1972, Henrico enrolled 31,299 white students and 3,018
black students, while Chesterfield enrolled 21,588 white students and
2,166 black students. (A. 417-18; 338 F. Supp., at 185.)
71
ing two schools on different sides of a jurisdictional bound
ary, with "widely disparate racial compositions, would not
be sufficiently sophisticated to know most of the forces and
factors which brought forth such racial composition, but
would simply perceive the existence of black and white
schools.” (A. 451; 338 F. Supp., at 200.)
In addition, the black Richmond schools are growing
blacker: during the 1970-71 and 1971-72 sessions, “Rich
mond schools lost over 7,800 white students from their
projected figure [i.e., the figure envisaged in the District
Court’s interim Richmond-only desegregation plan]” (A.
417; 338 F. Supp., at 185). This loss of “39% of its white
students in the past two years” (A. 237; 338 F. Supp., at
103), was a significant consideration in the District Judge’s
finding’ that any attempts to desegregate Richmond schools
within the closed confines of the Richmond school district
would “contain the seeds of their own frustration” (see note
132, supra).
(C) The Greater Richmond region is the archetype of a
metropolitan area wherein school district boundary lines
“coincide with no tangible obstacles and are unrelated to
any administrative or educational needs” (A. 193; 338
F. Supp., at 83). The District Court’s opinion makes de
tailed findings of fact about the region (A. 401-16; 338
F. Supp., at 178-184) which compel the conclusion-—unques
tioned by the Court of Appeals—that the City of Richmond
and its two surrounding counties are entirely integrated in
every dimension but race. (See pp. 15-18, supra.)
We have previously mentioned the measure of integra
tion used by the Census Bureau in its definition of Standard
Metropolitan Statistical Areas.136 For that purpose, a
county would be regarded as integrated with a central city
136 See text at note 92 supra.
72
if 15% of the workers living in the county worked in the
city.136 By contrast, 48% of Chesterfield’s almost 30,000
workers work in Richmond, 30% work in their home county,
6% work in Henrico. Among Henrico’s nearly 70,000
workers, 65% work in Richmond, 27% work at home, 3%
work in Chesterfield.137
Richmond is a magnet for the counties’ shoppers as well
as its workers. The city’s total population is 249,430;
Chesterfield’s is 77,046; Henrico’s is 154,364.138 But Rich
mond is responsible for $698,123,000 in retail trade as com
pared to $89,226,000 in Chesterfield and $186,021,000 in
Henrico. The disposition is even sharper in regard to “shop
ping goods”—those purchased from department and ap
parel stores and thus comprising routine consumer items.
Richmond accounts for $213,671,000 of such purchases, five
times the amount of Henrico’s $39,253,000 and almost
seventeen times Chesterfield’s $12,704,000.139
Newspapers are a good index of the independent identity
of subparts of a region, because they are relatively inex
pensive to establish (less expensive, for example, than
136 Op. cit. supra, note 92, at 2. This is an application rather
than a paraphrase of the Census Bureau’s definition.
137 United States D ept , of Commerce, B ureau of th e Census,
Census Tracts, Census of P opulation and H ousing, Richmond,
Va., SM SA (PHC(1)-173) (1972), P-11, Table P-2, Social Char
acteristics of the Population: 1970) (these figures omit workers
whose place of work is unreported). Throughout this section of the
Petition, we shall use the latest figures available from judicially
noticeable sources. They update the figures available at the time of
trial (set forth at pp. 16-17, supra), and have the added virtue
that they were compiled following the 1970 annexation of a portion
of Chesterfield County by the City of Richmond (note 102, supra;
see A. 406-10; 338 P. Supp., at 180-182).
138 See chart at note 101, supra.
189 Rand, McNally & Co., [1972] Commercial A tlas & Market
ing Guide 76. Compare A. 402, 411; 338 F. Supp., at 178, 182.
73
television, stations—all six of which in the Richmond SMSA
are located in Richmond City), and are directly responsive
to the demand of the local populace for news about their
neighbors, about local political issues, and about the doings
in the community as that is perceived by its inhabitants.
Henrico County apparently has no newspapers; Chester
field has only one: —a weekly published in Chester, which
is a town of about 5,500 residents. The Richmond news
papers therefore serve the counties. There are an estimated
83,100 households in Richmond City, and 74,200 in the
counties ;140 Richmond’s morning Times-Dispatcli has a daily
circulation of 140,618 and a Sunday circulation of 193,540;
Richmond’s evening News-Leader has a circulation of
118,410.141
In addition, of the eighteen hospitals in the area, seven
teen are located in Richmond. The principal cultural cen
ters—libraries, museums, colleges—are located in Rich
mond. Public transportation is deployed, for the most part,
to service city-county travel rather than intra-county
travel.142
The pattern of life in the area, the context within which
the public schools are seen as racially identifiable or not,
is therefore this: Residents of Chesterfield and Henrico
Counties—together with those of the City of Richmond_
are generally born in Richmond; they shop in Richmond;
they travel to Richmond for intellectual and cultural stimu
lation; they depend upon the Richmond papers for their
“local” news; they work in Richmond (more than in their
counties of residence); and, assuming that death occurs in
a hospital, they die in Richmond. But they do not go to
140 Op. cit. supra, note 77, at 76 (estimated as of January 1
1972). “ ’
141 [1972] A yer D irectory of P ublications 1084, 1122.
142 See note 28, supra.
74-
school with Richmond’s blacks. The black Richmond child
who (according to defendants’ expert witness) lacks the
sophistication to perceive why this is so may perhaps be
forgiven his unperceptiveness. What he fails to see has all
the transparency of the Emperor’s clothes.
IV.
The Fourth Circuit’s Decision Departs From Settled
Principles and Calls Into Question Doctrines That Are
Indispensable Safeguards of the Right of Racial
Equality.
In its result and its reasoning, the decision below con
stitutes a dangerous departure from essential substantive
and remedial principles developed by this Court to protect
the constitutional right of racial equality.
A. T he D ecision , Focusing O n ly U pon In d iv idu a l School
D istric ts, Ignores the A ffirm ative O bliga tion o f the
Sta te to C om ply W ith the C om m ands o f the F ourteen th
A m en dm en t and o f Brown v. Board o f Education.
The Fourth Circuit comes at this case as though the
Fourteenth Amendment and Brown (I) spoke severally to
the individual school districts in the State of Virginia,
rather than to the State itself. Conceding that each of
the districts of Richmond, Chesterfield and Henrico long
maintained dual school systems, it inquires whether each
has made its separate peace with the Constitution. Because
each has done all that it can do within its own boundaries,
the Constitution is satisfied. Schools that were built to be
or became black schools before Brown and during seventeen
years of recalcitrance thereafter may remain black schools;
previously white schools may remain white schools; so
long as the black schools and the white schools are a mile
and a half apart on either side of a school district line,
75
no one is responsible. The State of Virginia is not re
sponsible, because—having chosen to assert its prerogative
powers only in support of segregation (see pp. 6-14, supra)
it now chooses to take no further action.
This view, we think, cannot be squared with authority
or reason, with the premises of the Fourteenth Amendment
or the promises of Brown. To be sure, the named party-
defendants in the Brown cases were local school systems
within the States of Virginia, Kansas, South Carolina
and Delaware; but they were not constitutional inde
pendent contractors. Each was operating its schools under
the segregatory compulsion of state law, and the meaning
of Brown (I) was to declare those state laws—and every
aspect of the dual systems emanating from them—uncon
stitutional. As Judge Wisdom put it in United States v.
Jefferson County Bel. of Educ., 372 F.2d 836, 847 (5th
Cir. 1966), aff’d en banc, 380 F.2d 385 (5th Cir. 1967):
“The two Brown decisions . . . compelled seventeen states,
which by law had segregated public schools, to take
affirmative action to reorganize their schools into a unitary,
non-racial system.” If the Brown decisions themselves left
any doubt of this, Cooper v. Aaron, 358 U.S. 1 (1958),
did not. “State authorities were thus duty bound to devote
every effort toward initiating desegregation and bringing
about the elimination of racial discrimination in the public
school system.” Id., at 7.
Two principles are essential here. The first is that “[t]he
fundamental guarantee of equal treatment at the hands
of the State cannot be thwarted by the fragmentation of
decisionmaking.” 143 “The United States Constitution rec
ognizes no governing unit except the federal government
143 Brief for the United States as Amicus Curiae, in Griffin v
County School Bd., 377 U.S. 218 (1964) (O.T. 1963, No. 592),
76
and the state.” 144 For the long-time growth of racially
identifiable black schools within the City of Richmond,
it is the State of Virginia, not Richmond alone, that must
answer to the Constitution. And its answer cannot be that
Richmond is an island, any more than that Prince Edward
County145 or Emporia146 was.
The second principle is that “[t]he affirmative obliga
tion to seek means of disestablishing state-imposed segrega
tion must be shared by all agencies, or agents of the
state . . . who are charged by law with, and who exercise,
official public school functions.” 147 That principle unques
tionably reaches both the state and the county defendants
here. For many years, they had been participants in the
dual system that the District Court sought to end. If
affirmative acts, the discharge of affirmative obligations,
was necessary by them to disestablish the dual system,
the District Court could command them to act.
The Fourth Circuit ignores these principles when it rules
that a school district which “belatedly . . . has . . . done
all it can to disestablish to the maximum extent possible
the formerly state-imposed dual school system within its
municipal boundary” thereby becomes “unitary.” (A. 563.)
This conception supposes, as Judge Winter’s dissent below
144 Hall v. St. Helena Parish School Bd., 197 F. Supp. 649, 658
(E.D. La. 1961) (three-judge court), aff’d, 368 U.S. 515 (1962).
145 Griffin v. County School Bd., 377 U.S. 218 (1964).
146 W right v. Council of the City of Emporia, 33 L.ed.2d 51
(1972).
147 Franklin t. Quitman County Bd. of Educ., 288 F. Supp. 509,
519 (N.D. Miss. 1968). Accord: Lee v. Macon County Bd. of
Educ., 267 F. Supp. 458, 478-479 (M.D. Ala. 1967) (three judge
court), aff’d sub nom. Wallace v. United States, 389 U.S. 215
(1967); United States v. Texas, 321 F. Supp. 1043, 1056-1057 (E.D.
Tex. 1970), 330 F. Supp. 235 (E.D. Tex. 1971), modified and aff’d,
447 F.2d 441 (5th Cir. 1971).
77
puts it, that “each political subdivision is free to operate
in its own orbit” (A. 595); that neither is a school district
obliged to look beyond its own boundaries for available and
practicable desegregation techniques, nor is the State ob
liged to assist it to find them. We suggest, however, that
Brown clearly implies such obligations.
Within a district, the obligation of Brown is to “consider
the use of all available techniques including restructuring
of attendance zones,” with a view to “effectiveness” and to
“the greatest possible degree of actual desegregation, tak
ing into account the practicalities of the situation.” 148
The practicalities may differ when the district line is
reached, but not the obligation to consider them. Maxi
mum feasible desegregation remains the objective, and the
State remains constitutionally bound to seek it. Especially
where state law and practice provide mechanisms for the
ready effectuation of inter-district plans, it would be an un
warranted limitation upon Brown to say that they need
never be considered. In Virginia, with its history of the
use of inter-district mechanisms for the purposes of segre
gation, it would be a travesty.
B. T he C ourt’s E xtension o f th e T en th A m en dm en t Into
Conflict W ith the F ourteenth D istu rbs E stablished Law.
The extent to which decision below rests upon the Tenth
Amendment is not clear. The Amendment figures prom
inently in the opinion (A. 563, 579-80) and is said to re
serve to the States “the power to structure their internal
government” (A. 579). That power is described as absolute
{ibid. ) ; but then it is recognized as subject to being over
ridden by the Fourteenth when “ ‘used as an instrument
for circumventing’ ” Fourteenth Amendment rights (A.
580). In this case, the majority concludes that it was not
148 Swann, 402 U.S., at 37.
78
so used, because the maintenance of school district lines
does not appear to “have been intended to circumvent any
federally protected right” (ibid.). It is then said that no
federally protected rights were in fact denied (ibid.).
Perhaps the primary role of the Tenth Amendment here,
as the Court of Appeals saw it, was to endow state political
arrangements (specifically, school district lines) with a
greater degree of immunity against federal judicial review
than other forms of state action. Such an attitude of
heightened deference, or “hands off,” could account for the
court’s insistence that invidious motivation be shown be
fore district boundaries may be disregarded in the fashion
ing of a desegregation plan. We shall discuss the “invid
ious motivation” requirement generally in Subpart IV(C)
next following. For present purposes, it suffices to note
that, insofar as the requirement was thought by the Court
of Appeals to derive from the Tenth Amendment reserved
power of the States in regard to their internal government
structures, it is inconsistent with settled law.149
Indeed, the Tenth Amendment plainly has no proper
place in the case at all. The doctrine of Hunter v. Pitts
burgh, which the Court of Appeals cites as confirming the
u s E.g., Baker v. Carr, 369 U.S. 186 (1962) (invalidating 60-
year-old legislative apportionment rendered unconstitutional by
demographic changes). See particularly Graham v. Folsom, 200
U.S. 248 (1906) :
“The power of the State to alter or destroy its corporations
is not greater than the power of the State to repeal its legisla
tion. Exercise of the latter power has been repeatedly held to
be ineffectual to impair the obligation of a contract. The
repeal of a law may be more readily undertaken than the
abolition of townships or the change of their boundaries or the
boundaries of counties. The latter may put on the form of a
different purpose than the violation of a contract. But courts
cannot permit themselves to be deceived. They will not in
quire too closely into the motives of the State, but they will
not ignore the effect of its action.” (Id., at 253.)
79
“absolute discretion” of a State with regard to its municipal
corporations,150 does not speak to situations in which the
consequences of the exercise of that discretion collide with
federally guaranteed rights. The law of this Court govern
ing such collisions has been settled for 100 years,151 and
state power over the organization and structure of political
subdivisions has been consistently subordinated to “the
fundamental condition that the collective and individual
rights of the people of the municipality shall not thereby
be destroyed.” 152 Neither this Court153 nor the lower
courts154 have therefore seen a Tenth Amendment prob
lem in altering the structure or the boundaries of state
school districts where necessary and proper to enforce the
rights of black school children to a desegregated education.
“State legislative district lines, congressional dis
tricts and other state political subdivisions have long
ago lost their mastery over the more desired effect of
protecting the equal rights of all citizens. . . . Political
subdivisions of the state are mere lines of convenience
for exercising divided governmental responsibilities.
They cannot serve to deny federal rights.” 155
150 H unter v. Pittsburgh, 207 U.S. 161, 198 (1907), cited at
A. 579.
151 Broughton v. Pensacola, 93 U.S. 266 (1876) ; Mount Pleasant
v. Beckwith, 100 U.S. 514 (1879); Mobile v. Watson, 116 U.S. 289
(1886); Comanche County v. Lewis, 133 U.S. 198 (1890); Shapleigh
v. San Angelo, 167 U.S. 646 (1897) ; Gomillion v. Lightfoot, 364
U.S. 339 (1960) ; Reynolds v. Sims, 377 U.S. 538 (1964).
152 A tk in v. Kansas, 191 U.S. 207, 221 (1903) (dictum).
153 W right v. Council of the City of Emporia, 33 L.ed.2d 51
(1972); United States v. Scotland Neck City Bd. of Educ., 33
L.ed.2d 75 (1972).
164 See cases cited in note 124, supra.
166 Haney v. County Bd, of Educ., 410 F.2d 920, 924, 925 (8th
Cir. 1969).
80
C. T he C ourt R ein trodu ces Into the Law o f the F ourteen th
A m en dm en t a T es t o f Invid ious “M otiva tion” or “P u r
pose ,” IFh ich T h is C ourt and th e L ow er C ourts H ave
R ejec ted in R ela ted C ontexts as Inadequate to P ro tec t
the R igh t o f E quality .
Recognizing, apparently, that this settled body of au
thority (exemplified in its opinion by reference to Gomillion
v. Lightfoot, 364 U.S. 339 (I960)), requires federal courts
to ignore state internal geographic boundaries and political
structures in at least some circumstances where necessary
to prevent them from interfering with the enjoyment or
effective enforcement of federal constitutional rights, the
Fourth Circuit seeks to define the extent of those circum
stances in terms of invidious “motivation” or “purpose.” 158
Gomillion would authorize the assignment of pupils across
school district lines, the court concludes, if but only if
those lines could be shown to “have been intended to
circumvent” the pupils’ right to a desegregated education.
(A. 580.) Finding no “invidious discrimination in the
establishment or maintenance” of the lines around the
City of Richmond (A. 562), the court holds them federally
impassable.
Whatever one may think about the accuracy of result
of this search for illicit motivation,167 the overriding point
is that the search should not have been made. This kind
of subjective inquiry into the mental springs of conduct
that separates white people from black people or dis
advantages the blacks has consistently been rejected by
this Court and the lower courts as a methodology of Equal
Protection adjudication. Racial animus is no longer—
if it ever was—the hallmark of unconstitutional dis
crimination. As the Court has recently said quite pointedly
166 See text at notes 76-79, supra.
167 See note 131, supra.
81
of Gomillion and cognate cases, “the focus in those cases
was on the actual effect of the enactments, not upon the
motivation which led the States to behave as they did.”
Palmer v. Thompson, 403 U.S. 217, 225 (1971). Conduct,
however purposed, whose objective consequences disable
blacks in the full enjoyment of their rights as American
citizens denies them the equal protection of the laws.
Cassell v. Texas, 339 U.S. 282, 287-290 (1950) (plurality
opinion); Turner v. Fouche, 396 U.S. 346, 360-361 (1970);
Kennedy Park Homes Ass’n v. City of Lackawanna, 436
F.2d 108, 114 (2d Cir. 1970, per Mr. Justice Clark, sitting
by designation); Chance v. Board of Examiners, 458 F.2d
1167, 1170, 1175-1176 (2d Cir. 1972), and cases cited;
Hawkins v. Town of Shaw, 461 F.2d 1171, 1173 (5th. Cir.
1972); Hobson v. Hansen, 269 F. Supp. 401, 497 (D.D.C.
1967), aff’d sub nom. Smuck v. Hobson, 408 F.2d 175 (D.C.
Cir. 1969); cf. Griggs v. Duke Power Co., 401 U.S. 424
(1971).158
It is important to note, of course, that the issue in this
present case is not what kinds of conduct, in what context,
with what consequences, are required in order to bring
their practitioners initially under the ban of the Equal
Protection Clause—although even as to the issue of initial
violation, “ [discriminatory motive and purpose . . . are
not necessary ingredients of constitutional violations in
the field of public education.” 159 Since the day that Brown
158 Although Griggs arose under Title VII, not the Constitution,
the substantive test of forbidden conduct is essentially the same,
at least with regard to the sorts of discriminatory conduct with
which Duke Power was charged. “Discriminatory preference for
any group . . . is precisely and only what Congress has proscribed.”
(401 U.S., at 431.)
159 Cisneros v. Corpus Christi Independent School Dist., 5th Cir.,
No. 71-2397, decided August 2, 1972, slip opinion, p. 13. The
Cisneros case involved the question whether Mexican-American
children were unconstitutionally segregated in the Corpus Christi
v. Board of Education was announced in 1954, the Rich
mond schools have been operated in violation of the Equal
Protection Clause; and the question in this case is what
conduct will suffice to end that violation by extirpating
racially identifiable schools so as to achieve a “unitary
system in which [that] racial discrimination would be
eliminated root and branch.” 160 Racial identifiability, as
the District Court noted, involves “a perception of students,
faculty and community perception” (A. 187; 338 P. Supp.,
at 80) in the “historical context within which a school of
disproportionate composition exists” (ibid.). That his
torical context, in Richmond, is one of long-persisting, deep-
set, all-pervading racial segregation of the public schools
(see pp. 6-13, 18-20, 34-36, supra) and of public and pri
vate racial discrimination in housing, employment, and
every other phase of social life (see pp. 24-25, supra).
In this setting, the consequences for achieving a unitary
school system of the maintenance of school district lines
requiring pupils to be assigned to 70% and 80% black
city schools and 90% or 100% white county schools that
are close together within a socially and economically inte
grated area do not depend upon “motivation.” Nor should
their legality. The test should be “effect—not . . . purpose
school system. Like blacks, they were and long had been isolated
in racially identifiable schools; but, unlike the isolation of blacks,
theirs had never had a statutory base. The Fifth Circuit, sitting
en banc, concluded that the isolation of Mexican-Americans from
anglos in the public schools, caused by various school board actions
not shown to be racially motivated, constituted unconstitutional
segregation. “ [T]his Court has never tempered its prohibition of
school board actions that create, maintain, or foster segregation by
the requirement that a discriminatory intent be shown.” (Id., at
p. 16.) “School cases serve to emphasize the correctness of this
principle [that the constitutional test is effect, not motive], for
regardless of motive, the children . . . suffer the same. . . ” (Id.,
at p. 17.)
160 Green v. County School Bd., 391 U.S. 430, 438 (1968).
83
or motivation— . . .in determining whether it is a per
missible method of dismantling a dual system.” 161
This is what the “splinter district” cases last Term held,
under less compelling circumstances. Wright v. Council
of the City of Emporia, 33 L.ed. 2d 51 (1972); United
States v. Scotland Neck City Bd. of Educ., 33 L.ed. 2d 75
(1972). Although there was disagreement among the Jus
tices upon the facts of Wright, there was none upon the
proposition that motive was an improper Fourteenth
Amendment standard, and that the decisive issue was
whether the “operation of a separate school system would
either perpetuate racial segregation in the schools of the
. . . area or otherwise frustrate the dismantling of the dual
system in that area.” 162 That decisive criterion, employed
by the District Court and rejected by the Court of Appeals
below, is also applicable here. For the adventitious dif
ference that Emporia region lay under court mandate
whereas the Richmond region lay under the long-unfulfilled
obligation of Brown (I) surely is immaterial to the ques
tion whether the measure of desegregation is “effective
ness” 163 or motivation.
D. The D ecision U nduly Curbs th e V ital P ow er o f the
F ederal C ourts to R em ed y U nconstitu tional School
Segregation , and T ram m els the T rad ition a l F lex ib ility
o f E qu itab le R e lie f That Was R econ firm ed in School
Cases by Swann.
The Court of Appeals’ decision proceeds essentially in
three steps. The first step is to assert that the Richmond
City schools must be considered in entire isolation—as
161 W right v. Council of the City of Emporia, 33 L.ed.2d 51 61
(1972).
162 W right v. Council of the City of Emporia, 33 L.ed.2. 51, 66
(1972) (Chief Justice Burger, dissenting).
163 Davis v. Board of School Comm’rs 402 U.S. 33, 37 (1971).
84
though the city limits were the edge of the known world—
in determining whether they have achieved the character
of a “unitary” 104 system. The second step asserts that, so
considered, they have. We have directed Subparts IV(A),
(B) and (C), supra, to these two steps. The first involves
the errors that we have respectfully suggested, and the
second falls with the first.
The Court of Appeals’ third step asserts that, once
the District Court succeeded by its successive decrees in
making the Richmond schools “unitary” in this isolated
sense, all its equitable powers instantaneously went out
like a light. This third step falls with the first two; but
it also involves an independent misonception of such mag
nitude as to command this Court’s review and correction.
For it amounts to saying that federal equity to enforce
Brown v. Board of Education is a pale shadow of its ordi
nary self.
Throughout the years, the Court has used the strongest
possible terms in describing federal equity’s resources to
secure “complete justice.” 165 Only last Term, the Court
once again sounded that theme, and said that equitable
relief “is not limited to the restoration of the status quo
ante. There is no power to turn back the clock. Rather,
the relief must be directed to that which is ‘necessary and
appropriate in the public interest to eliminate the ef
fects . . . ’ ” of whatever evil has required equity’s inter
vention.166 It goes without saying that, if the litigation is
protracted and the evil takes on new forms, equity has
164 See note 82, supra.
166 Brown v. Swann, 35 U.S. (10 Pet.) 497, 503 (1836) See
e.g., Camp v. Boyd, 229 U.S. 530, 551 (1913); E echt Co. v. Bowles’,
321 U.S. 321, 329-330 (1944).
166 Ford Motor Co. v. United States, 405 U.S. 562, 573 n. 8
(1972) (emphasis in original).
85
ample power to pursue it.167 Indeed, it is “the duty of the
court to modify . . . [a] decree so as to assure the complete
extirpation of the illegal” conduct.168
Once such conduct has been found, “equity has the power
to uproot all parts of an illegal scheme—the valid as well
as the invalid.” 169 This point has been made again and
again in anti-trust cases.
“A trial court upon a finding of a conspiracy in re
straint of trade and a monopoly has the duty to compel
action by the conspirators that will, so far as practica
ble, cure the ill effects of the illegal conduct, and as
sure the public freedom from its continuance. Such
action is not limited to prohibition of the proven means
by which the evil was accomplished, but may range
broadly through practices connected with the acts actu
ally found to be illegal. Acts entirely proper when
viewed alone may be prohibited.” 170
If the federal courts have as ample powers to enforce
the Constitution as the anti-trust laws—and this seems to
be the least implication of Brown (II) and Swann—then
the test of their appropriate exercise is “effectiveness” 171
to assure “that state-imposed segregation has been com
pletely removed,” “eliminated root and branch.” 172 Under
167 See, e.g., United States v. Armour <& Co., 402 U.S. 673, 681
(1971) (dictum).
168 United States v. United Shoe Machinery Corp., 391 U.S. 244.
251 (1968).
169 United States v. Paramount Pictures, Inc., 334 U.S. 131, 148
(1948).
170 United States v. United States Gypsum Co., 340 U.S. 76, 88-89
(1950). In addition to the eases cited in Gypsum, see, e.g., United
States v. Crescent Amusement Co., 323 U.S. 173, 189-190 (1944);
United States v. Loew’s, Inc., 371 U.S. 38, 53 (1962).
171 Davis v. Board of School Comm’rs, 402 U.S. 33, 37 (1971).
172 Green v. County School Bd., 391 U.S. 430, 438, 439 (1968).
86
this standard, the District Judge here had “not merely the
power but the duty to render a decree which [would] . . .
so far as possible eliminate the discriminatory effects of
the past as well as bar like discrimination in the future.” 178
He was not restricted, in his means of disestablishing
Richmond’s dual school system, to forms of school district
organization that might have passed constitutional muster
if voluntarily adopted by the Virginia school authorities
75, or 18, or 10 years ago—or which, “viewed alone,” 174
would not violate the Constitution even today. He was not
obliged to ignore patterns of population growth which,
occurring during long years of non-compliance with Brown,
had finally turned the Richmond City schools so black that
compliance with Brown limited to the City’s borders would
remain “pathetically incomplete” (A. 237; 338 F. Supp.,
at 103.)
What the District Judge here did was precisely to take
account of these principles and these “practicalities.” 175
He found that:
. . . long years of maintenance of the dual system, many
subsequent to formal legal declaration of its invalidity,
massive and effective state-managed efforts to oppose
desegregation under free choice assignment plans
which caused more and more facilities in the area to
become segregated by a process of white withdrawal
and black occupation, have, together with [other] . . .
forces . . . containing blacks in the city, produced a
community school system divided into racially identi
fiable sectors by political boundaries. The problem has
intensified with passing years, but its growth has been
173 Louisiana v. United States, 380 U.S. 145, 154 (1965).
174 See text at note 170, supra.
176 Davis v. Board of School Comm’rs, 402 U.S. 33, 37 (1971).
87
foreseeable and all officials were well advised of its
coming. At present, the disparities are so great that
the only remedy promising of immediate success—not
to speak of stable solutions—-involves crossing these
lines. (A. 230; 338 F. Supp., at 100.)
Finding further that these particular school district lines
“are unrelated to any administrative or educational needs”
(A. 103; 338 F. Supp., at 83), so that their use as categorical
limits upon pupil assignment was not required by any
legitimate state interest,176 he ordered that the lines be
crossed.
Such relief is squarely in the grain of the traditional
powers of federal equity. To deny the district courts all
competence to give it, as the Court of Appeals has done,
breaks sharply with that tradition. It abridges the “breadth
and flexibility” 177 of remedies necessary to vindicate the
right declared in Brown v. Board of Education, and thereby
intolerably restricts the force of Brown itself.
176 Cf. McLaughlin v. Florida, 379 U.S. 184, 196 (1964); Loving
v. Virginia, 388 U.S. 1, 11 (1967).
177 Swann, 402 U.S., at 15.
88
CONCLUSION
The writ of certiorari should be granted.
Respectfully submitted,
J a c k G r e e n b e r g
J a m e s M. N a b r i t , III
N o r m a n J . C h a c h k i n
10 Columbus Circle
New York, New York 10019
Louis R. L u c a s
525 Commerce Title Building
Memphis, Tennessee 38103
W i l l i a m L. T a y l o r
Catholic University Law School
Washington, D.C.
J a m e s R. O l p h i n
214 East Clay Street
Richmond, Virginia 23219
M. R a l p h P a g e
420 North First Street
Richmond, Virginia 23219
A n t h o n y G . A m s t e r d a m
Stanford University Law School
Stanford, California 94305
Attorneys for Petitioners
MEilEN PRESS INC — N. Y. C. 219