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

    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



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