Wrigth v. Council of the City of Emporia Memorandum for the United States as Amicus Curiae

    No. 70-188

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October Term, 1971

P ecola A nnette W right, et al., petitioners

v : '
Council oe the City op E mporia, et al.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
APPEALS FOB TEE FOURTE CIRCUIT

MEMORANDUM FOR THE UNITED STATES AS AMICUS CURIAE

E R W IN  N. G R ISW O L D ,
Solicitor General,

D A V ID  L. N O R M A N ,
Assistant Attorney General, 

L A W R E N C E  G. W A L L A C E ,
Deputy SoUcitor General,

A . R A Y M O N D  R A N D O L P H , Jr.,
Assistant to the SoUcitor General,, 

T H O M A S M . K E E L IN G ,
Attorney,

Department of Justice, 
Washington, D.C. 20530.



I N D E X

Page

Interest of the United States____________________ 1
Statement____________________________________  1
Argument_____________________________________ 11
Conclusion____________________________________  17

CITATIONS
Cases:

Alexander v. Holmes County Board of Educa­
tion, 396 U.S. 19_________________________  17

Brown v. Board of Education, 347 U.S.
483____________________________________2,11,14

Brown v. Board of Education, 349 U.S. 294__  2, 17
Burleson v. County Board of Election Com­

missioners of Jefferson County, 308 F. Supp.
352, affirmed, 432 F. 2d 1356____________  13

Gomillion v. Lightfoot, 364 U.S. 339_________ 12
Green v. County School Board of New Kent

County, 391 U.S. 430_________3,12, 13, 14, 16, 17
Lee and United States v. Macon County Board

of Education, 448 F. 2d 746______________  13
Monroe v. Board of Commissioners, 391 U.S.

450____________________________________  9, 10
North Carolina State Board of Education v.

Swann, 402 U.S. 43_______________________12,13
Stout and United States v. Jefferson County

Board of Education, 448 F. 2d 403_________ 13
Swann v. Charlotte-Mecklenburg Board of Edu­

cation, 402 U.S. 1______________________  15
a)

4 .5.7- 289— 72- -1



II

Statutes:
42 U.S.C.: Paw

2000c________________________________  1
2000d________________________________  1

Ya. Code Ann.:
§ 15.1-978____________________________  2
§ 15.1-983____________________________ 2
§22-1____________________________  3
§ 22-7________________________________ 3
§ 22-93 
§ 22-99
§  22- 100. 1- 22- 100.2

CO CO CO



J tt  Hit dfmtrl af ille U n iM
October Term, 1971

No. 70-188

P ecola A nnette W right, et al., petitioners

v.
Council of the City of E mporia, et al.

ON WRIT OF CERTIORARI TO TEE UNITED STATES COURT OF 
APPEALS FOR THE FOURTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES AS AMICUS CUEIAE

i n t e r e s t  o f  t h e  u n it e d  s t a t e s

The United States has substantial responsibility 
under 42 U.S.C. 2000e-6, and 2000d in the area of 
school desegregation. The outcome of this case will 
affect that enforcement responsibility. While the gov­
ernment did not participate in this case in the courts 
below, the issues presented are related to those pre­
sented in United States v. Scotland Neck City Board 
of Education, No. 70-130, now pending before this 
Court.

STATEMENT

In 1965, the schools in Greensville County, Virginia, 
were completely segregated on the basis of race (App. 
15a). All of the white children attended schools in 
Emporia, a community located near the center of the

(i)



2

county; all of the black children attended either 
schools in the outlying county or Greensville County 
Training School, an elementary school in Emporia 
I  App. 15a, 130a).

In March 1965, petitioners—black school children 
living in the county and their parents or guardians— 
sued the county School Board to require compliance 
with Brown I 1 and Brown I I 2 (App. 2a -lla ). One 
month later the Board proposed a freedom-of-choiee 
plan (App. 16a). The district court approved this 
plan in January 1966, but cautioned that the “ plan 
must be tested * * * by the manner in which it op­
erates to provide opportunities for a desegregated 
education”  and is “ subject to review and modification 
in the light of its operation”  (App. 24a).

By the 1967-68 school year very little desegregation 
had resulted. At this time there were 4146 children 
enrolled in public schools in the comity; 62 percent 
o f the children were black, 38 percent were white 
(App. 294a). The five formerly all-black schools, 
which included four elementary schools and one high 
school, were still attended only by black children (id.). 
In the two formerly all-white schools (a high school 
and an elementary school), both of which were in 
Emporia, 94 percent of the students were white (id.). 
The dual school system thus remained virtually intact.

In the summer preceding the 1967-68 school year, 
the Town of Emporia became a city of the second 
class3 and thereby became obligated to maintain a

1 347 U.S. 483.
2 349 U.S. 294.
3 V.a. Code Ann. § 15.1-978, see especially § 15.1-983.



3

general system of free public schools (App. 118a, 
226a-227a).4 The newly-appointed city school board 
then began negotiations with county officials to work 
out a satisfactory educational arrangement for city 
residents (App. 227a-228a).5 Meanwhile, for all the 
children in the county, including those living in Em­
poria, the traditional attendance pattern continued 
(App. 227a, 294a).

When the county Board of Supervisors rejected a 
proposal for a joint county-city operation (App. 30a), 
the city, in April 1968, agreed that the Greensville 
County School Board would continue to provide pub­
lic schools for the City of Emporia (ApjD. 32a-36a). 
Expressing dissatisfaction with this arrangement, city 
officials contended that they had been forced into the 
agreement by the threat of the county officials to ter­
minate public school services to students residing in 
the city (App. 305a). Between April 1968 and June 
1969, however, no efforts were made to terminate the 
agreement nor were any studies conducted concerning 
the feasibility of other methods of operating the 
schools (App. 136a, 147a.-149a).

In the summer of 1968, after this Court’s decision 
in Green v. County School Board of New Kent 
County, 391 U.S. 430, petitioners filed a motion for 
further relief seeking a netv desegregation plan for 
the Greensville County schools that would promise 
realistically to convert the school system to a unitary 
non-racial operation (App. 37a). The district court

4Va. Code Ann. §22-1 and §22-93.
5 Virginia law provided several alternative methods o f school 

operation. Va. Code Ann. §§ 22-7, 22-99, and 22-100.1 to 
22-100.2; see also Petitioners’ Brief, at p. 5 n. 6; App. 300a.



4

ordered the county School Board to prepare such a 
desegregation plan (App. 50a). After various delays, 
the Board in January 1969 submitted a plan that, if 
accepted, would have continued freedom-of-choice 
with minor modifications (App. 38a, 51a).

After further hearings and other proceedings, dur­
ing which the county Board submitted a report and 
petitioners proposed a plan for desegregating the 
county schools, the court on June 23, 1969, found 
that the county Board’s plan would merely substitute 
one segregated system for another (App. 46a-47a, 
50a-52a). The court therefore ordered the county 
Board to implement petitioners’ plan for the upcoming 
1969-1970 school year (App. 52a-53a). This plan elimi­
nated the dual attendance patterns by a zoning-pairing 
arrangement for students in grades 1-4, who would 
attend the four formerly all-black elementary schools, 
only one of which was in Emporia; grades 5-6 would 
be served by the formerly all-white Emporia Ele­
mentary School; grades 7-9 would be served by the 
formerly all-black Wyatt High School in the county; 
and students in grades 10-12 would attend the for­
merly all-white Greensville County High School in 
Emporia (App. 46a-47a).°

Two weeks later, on July 7, 1969, the city Council 
sent a letter to the county Board of Supervisors stat­
ing in part (App. 56a) : 6 7

6 At no time during the pendency o f the above matter did 
the city Council or the city School Board meet, or otherwise 
confer, with the county officials in an attempt to devise a differ­
ent plan o f student assignment to the county schools (App. 
182a-183a, 193a).

7 See also App. 163a, 235a.



5

In 1967-68 when the then Town of Emporia, 
through its governing body, elected to become a 
city of the second class, it was the considered 
opinion of the Council that the educational 
interest of Emporia Citizens, their children and 
those of the citizens and children of Greensville 
County, could best be served by continuing a 
combined City-County school division, thus giv­
ing students from both political subdivisions 
full benefits of a larger school system.

The letter then stated that the court-ordered desegre­
gation plan had changed the situation to such an ex­
tent that the city had decided to establish a separate 
system (App. 57a). The city offered several reasons 
for this decision: (1) the court’s order required 
“ massive relocation of school classes,” “ excessive bus­
sing of students,” 8 mixing of students without regard 
to “ individual scholastic accomplishment or ability” ; 9 
and (2) the city students did not contribute to the 
“ inbalance”  [sic] in the school system10 (App. 57a). 
The Mayor later testified that city officials desired to 
prevent the emergence of a private school system and

8 The three elementary schools located in the county were 
within a mile or two o f the city limits (App. 132a, 133a).

9 The only “ ability grouping” plan ever considered by the 
County School Board, so far as the record indicates, was a 
proposal presented after the district court hearing of Febru­
ary 1969. Apparently, no such assignment plan had ever 
been used by the school system in the past (App. 40a-45a).

10 The record, however, is to the contrary. In the 1968-1969 
school year, 543 white and 580 black students resided in the city 
(App. 304a) yet only 98 black students attended the two white 
schools in the city, while 387 black and no white students 
attended Greensville County Training School, which was also 
located in Emporia (App. 130a, 298a).



6

wanted to “ kill this private school business before it 
got started”  (App. 121a-122a).

The city’s letter concluded by proposing termina­
tion of the existing city-county agreements, establish­
ment of a procedure for equity settlement, and im­
mediate transfer of title to all school property “ in the 
Corporate Limits” to the city (App. 58a-60a). Stu­
dent transfers from the county would be accepted 
by the city on a tuition, no transportation basis (App. 
60a).11

The county School Board refused to agree because 
of its obligations under the district court’s order and 
because “ this Board believes that such action is not 
in the best interest of the children in Greensville 
County * * * ” (App. 69a). The State Board of Ed­
ucation tabled the city’s request to establish the city 
as a school division “ in light of matters pending in 
the federal court”  (App. 198a).12

I f  the city’s proposals had been implemented, three 
schools—Emporia Elementary, Greensville County 
Training, and Greensville County High School—would

11 The city officials later stated that they would not allow 
transfers until they were permitted to do so by the district 
court (App. 319a n. 3).

12 Meanwhile, at the request o f the county School Board, the 
district court modified the desegregation plan on July 30, 1969 
(App. 85a). The modified plan established the following at­
tendance pattern :

Grades and school: Located in
1-2-3, Emporia Elementary_________________________________ City.
4- 5, Moton Elementary_____________________________________ County.
5- 6, Belfield Elementary____________________________________ County.
7, Zion Elementary--------------------------------------------------------------- County.
8-9, Junior High (Wyatt High)---------------------------------------------County.
10-11-12, Senior High (Greensville County High)____________City.
Special Education, County Training_________________________ City.



7

have been removed from the county system. These 
schools, which had served 2111 students in 1967-1968 
(App. 294a), would be available for the 1123 city stu­
dents in the school year beginning in 1969 (App. 
304a).13 The other four schools in the County-—Moton, 
Zion, Bel field and Wyatt High School, which had 
served a total of 2025 students (all black) in 1967- 
1968—would be available in 1969 for the remaining 
2616 students in the County (App. 304a).

Moreover, with separate city and county school sys­
tems, 52 percent, of the city’s students would be black 
and 48 percent would be white,14 while 72 percent of the 
county’s students would be black and 28 percent would 
be white 15 (App. 304a). The formerly all-white city 
high school would have a white majority (52 percent 
white and 48 percent black) (App. 304a). I f  all 
schools in the county were operated as a single system, 
as they had been in the preceding years when the stu­
dents were segregated on the basis of race, 66 percent 
of the students would be black, and 34 percent would be 
white (App. 304a).16

13 The Mayor o f Emporia testified that the city system would 
not need, and did not desire, to use the formerly all-black 
Greensville County Training School, which he said was “ in bad 
shape” (App. 120a, 134a). He further testified that the three 
elementary schools located in the county were on “ inferior sites” 
and situated in “ out-of-the-way places”  (App. 133a).

14 There would be 580 black students and 543 white students 
(App. 304a).

15 There would be 1888 black students and 728 white students 
(App. 304a).

16 There would be 2477 black students and 1282 white students, 
(App. 304a).

457 - 280— 72- -2



8

On August 1, 1969, petitioners filed a supplemental 
complaint naming the city Council and city school 
board members as defendants and seeking to enjoin 
them from forming a separate school system (App. 
84a-87a). After a hearing, the district court issued a 
preliminary injunction on August 8, 1969, prohibiting 
the city officials from interfering with implementa­
tion of the court’s previous order (App. 195a). See n. 6 
supra).

Three months later, the city began a study to deter­
mine the feasibility of operating a separate city school 
system (App. 200a). The proposed school budget and 
educational program submitted on December 3, 1969, 
after completion of the study (App. 200a, 202a-203a), 
indicated that the city would have more wealth per 
child than the county (App. 208a), but that the city 
system would be so small17 that operation would be 
more costly (App. 207a-208a). The proposed budget 
would have required a 30 percent increase in city 
taxes in order to support the system (App. 291a).

After a hearing on December 8, 1969, the district 
court issued an opinion and order on March 2, 1970, 
enjoining operation of a separate city school system 
until further order of the court (App. 293a, 310a). 
The court held that the city officials were successors, 
at least in part, to the powers of the county officials

17 The city school board’s expert testified that the optimum 
high school would be 1200-1500 students (App, 283a). Neither 
the county nor the city, i f  divided, would approach that stu­
dent population (App. 301a, 305a). In the combined system, 
however, there would be 1428 students in grades 8-12 (App 
297a).



9

and, thdrdfore, subject to the previous desegregation 
decree. Accordingly, the court treated the city offi­
cials’ application as a motion to modify that decree 
(App. 298a-303a).

Considering' the proposal on that basis, the court 
found that establishment of a separate city system 
would cause a substantial shift in the racial composi­
tion of the schools under the existing plan.18 The city 
system would have an elementary school with a slight 
black majority and a high school with a slight white 
majority; 19 all grades in the county, on the other 
hand, would be more than two-thirds black (App. 
30-la-305a). The city’s proposal would have adverse 
effects on the remaining county system (App. 306a- 
307a) and “ would make the successful operation of 
the [existing] unitary plan even more unlikely”  
(App. 306a). The court also found that the motives 
of the city officials for their decision were mixed, but 
that race was a factor since the city acted in order to 
make the schools more attractive to white residents 
so that they would not send their children to private 
schools, as they might have done if  the schools were 
operated in accordance with the court’s desegregation 
eider (App. 305a, 307a).

Relying on Monroe v. Board of Commissioners, 391 
U.S. 450, the court concluded that it could not accept 
the city’s proposal because the City could not show 
“ that such a plan will further rather than delay eon-

18 See p. 7 supra.
19 The white percentage could be expected to increase if, as 

the city officials predicted, students returned to the city schools 
from private schools (App. 304a).



10

version to a unitary, nonracial, nondiscriminatory 
school system,”  391 U.S. at 459 (App. 308a). The court 
noted, however, that there were a number of alterna­
tive methods of operation open to the city, including 
joint city-county operation or operation of a separate 
city system if it would not “ so prejudice the prospects 
for [a] unitary [system],”  and that the court would 
modify its decree in the future for good cause shown 
(App. 309a).

The court of appeals, sitting en banc,20 reversed 
(App. 311a-319a). Focusing principally on the “ shift 
in the racial balance” that would result from proposed 
redistricting, the majority applied the following stand­
ard to determine the validity of the city’s attempted 
withdrawal from the county system (App. 313a) :

I f  the creation of a new school district is de­
signed to further the aim of providing quality 
education and is attended secondarily by a 
modification of the racial balance, short of re- 
segregation, the federal courts should not inter­
fere. If, however, the primary purpose for creat­
ing a new school district is to retain as much 
of separation of the races as possible, the state 
has violated its affirmative constitutional duty 
to end state supported school segregation.

The court compared the racial composition of the 
county system before and after Emporia’s secession— 
66 percent black and 34 percent white before, as com­
pared with 72 percent black and 28 percent white

“ Judges Sobeloff and Butzner did not participate (App. 
311a).



11

after21—and concluded that the city did not seek to 
separate from the county system in order to perpetuate 
segregation (App. 316a). In the majority’s view of 
the record, the city’s predominant purpose or moti­
vation22 in withdrawing was not to discriminate on 
the basis of race, but rather to improve the quality 
of the schools and to alleviate unfair tax allocations 
(App. 314a, 316a-317a).

Judge Winter dissented (App. 336a). In his view, 
the validity of the city’s action should be judged in 
light of the test established by this Court in Green, 
supra—that a proposed method of school opera­
tion less effective than an existing and workable de­
segregation plan bears a heavy burden of justification 
(App. 337a). Applying that standard to the instant 
case, he concluded that the 20.5 percent difference in 
white student population between the city and county, 
as well as the other deleterious effects of separation, 
were not justified by the reasons advanced by the city 
(App. 340a-342a).

ARGUMENT

For fifteen years after Brown I  the schools in 
Greensville County remained racially segregated. 
Finally in June 1969, four years after petitioners insti­
tuted their suit seeking desegregation, the district 
court ordered the county School Board to implement 
a plan that would dismantle the existing dual system. 
The validity of the city of Emporia’s attempt, two

21 But see n. 23 infra.
22 The court used “purpose” and “motivation” interchange­

ably throughout the opinion (App. 314a, 316a-317a).



12

weeks later, to immunize itself from the imminent de­
segregation of the county system by creating its own 
school district can be assessed only against this back­
ground. See Green v. County School Board, 391 U.S. 
430, 437. For the inescapable fact is that until the 
court’s order a dual school system flourished in 
Greensville County and the traditionally white-only 
schools in the city of Emporia comprised the white 
branch of that unconstitutional system.

In these circumstances, the question presented by 
this ease is whether creation of a separate school sys­
tem for the city would impede the dismantling of the 
dual system. That the city’s proposed action is author­
ized by state law or that state law allowed the city to 
deprive the county School Board of authority over the 
city’s school children makes no difference. As this 
court held in a case decided after the decision of the 
court below:

[ I ] f  a state-imposed limitation on a school 
authority’s discretion operates to inhibit or 
obstruct the operation of a unitary school sys­
tem or impede the disestablishing of a dual 
school system, it must fall; state policy must 
give way when it operates to hinder vindication 
of federal constitutional guarantees.

North Carolina State Board of Education v. Swann, 
402 U.S. 43, 45. See also Gomillion v. Light-foot, 364 
U.S. 339.

Thus, what matters is not how withdrawal of the 
city was to be accomplished, but rather what effect 
that action would have on the court-ordered desegrega­
tion of the schools in the county, including those within 
the city of Emporia. Since all of those schools had



13

been operated as a single, segregated system, the city’s 
attempted separation is to fee judged in light of the 
standards applicable to any proposal affecting con­
version o f a dual system into a unitary one. That is, 
if  creation of separate city and county school systems 
would give rise to a less effective method of achieving 
desegregation, there is “ at the least * * * a heavy 
burden upon the [city] to explain its preference”  for 
this course of action. Green v. County School Board, 
supra, 391 II.S. at 439; North Carolina State Board 
of Education v. Swann, supra, 402 U.S. at 45.

The district court therefore properly considered the 
schools within the city and those elsewhere within the 
county as a single system for the purposes of desegre­
gation—just as they had been a single system for 
purposes of segregation—and viewed the city’s at­
tempted withdrawal as a proposed alternative to the 
plan adopted in the court’s outstanding desegregation 
decree (App. 303a). This approach is in accord not 
only with the decisions of this Court, but also with 
the decisions of other courts involving the carving 
out of new districts from larger districts that are- 
desegregating under court order. Lee and United 
States v. Macon County Board of Education, 448 F. 
2d 746 (C.A. 5) ; Burleson v. County Board of Elec­
tion Commissioners of Jefferson County, 308 F. Supp. 
352, 357 (E.D. Ark.), affirmed, 432 F. 2d 1356 (C.A. 
8) ; Stout and United States v. Jefferson County Board 
of Education, 448 F. 2d 403 (C.A. 5).

We also believe that the district court properly 
concluded that a separate city system would be a 
less effective method of desegregation and that the



14

city failed to meet its heavy burden of justifica­
tion under Green. The city system would have had a 
student population consisting of 52 percent black stu­
dents and 48 percent white; this would have left the 
county system 72 percent black and 28 percent white. 
The substantial disparity in racial composition is ap­
parent. This disparity is all the more significant in 
light of the fact that the schools to be utilized in the 
proposed more-white city system, which would in­
crease in racial percentages from 28 percent white to 
48 percent white, were the traditionally white-only 
schools in the county’s dual system. Indeed, the city 
intended to operate one of these two schools—Greens-

School—with a white majority 
(App. :394a), a majority the city expected to increase 
as white students were attracted back from private 
schools (App. 304a).23 24 This is not the way to dis­
mantle a rigid dual school system still functioning 
15 years after Brown I. It is at the very least a less 
effective way to eliminate the vestiges of racial segre­
gation than the plan ordered by the district court, see 
n. 12 supra.

Moreover, in exercising its “ broad power to fashion 
a remedy that will assure a unitary school system,”

23 I f  operated as a combined city-county system, it would be 
66 percent black and 34 percent white. Judge Winter, in dissent, 
emphasized the difference between the 28 percent of white students 
m the county and 48 percent o f white students in the city under the 
new plan, and concluded (App. 340a) : “To allow the creation o f a 
substantially whiter haven in the midst o f a small and mainly black 
area is a step backward in the integration process.”

24 The disparity undoubtedly would also have been increased 
by implementation of the city’s transfer provision (see n. 11 
supra, and accompanying text).



15

Swann v. Charlotte-31eddenhurg Board of Educa­
tion, 402 U.S. 1, 16, the district court could properly 
take into account more than the resulting racial per­
centages if the city’s separation were allowed. The 
district court properly considered the educational ad­
vantages of a single system for all the children in the 
county, including those in Emporia (App. 306a-307a). 
See Swann v. Charlotte-31ecklenburg Board of Edu­
cation, supra, 402 U.S. at 18-19. It is also significant 
that all the buildings in the county had been built as 
black schools and three o f them were located on in­
ferior sites in “ out-of-the-way” places. On the other 
hand, the two buildings the city intended to use were 
the only previously white schools in the county sys­
tem. Thus, the more-white district would be assigned 
the previously white schools while the more-black 
district would be assigned the previously black 
schools, which were considered inferior.25 Again, this 
is not the way to dismantle a dual school system and 
eliminate the vestiges of racial segregation “ root and

25 In addition, it appears likely (see Defendants’ Answers to 
Plaintiffs’ Interrogatories, June 18, 1965, indicating the ca­
pacities o f the county schools) that the county Board would 
have had to use at least temporarily, the other, formerly all- 
black school in the city— Greensville County Training School— 
which city officials considered in “ bad shape” and did not intend 
to utilize (see note 13 supra) . This would require transporting 
county students into the city in essentially the same dual attend­
ance pattern that existed when the county system operated on a 
segregated basis: students from the more-black district would 
attend formerly all-black Greensville County Training School 
in the city while students from the more-white district would 
attend the formerly all-white Emporia Elementary or Greens­
ville County High Schools, both of which are also in the city.



16

branch,”  Green v. County School Board, supra 391 
U.S. at 438.

In our brief in United States v. Scotland Neck City 
Board of Education, No. 70-130, this Term, we set 
forth the reasons why the “primary * * * purpose”  test 
adopted by the court of appeals is, in our view, an 
improper standard (Pet. Brief, at pp. 26-29) ; 26 we 
will not repeat that discussion here. We point out, 
however, that in this case the sequence of events 
alone gives rise to an inference that the purpose to 
avoid the full impact of desegregation played a sig­
nificant role in the city’s decision to withdraw from 
the county school system, and the district court thus 
properly found that the city’s motives, while mixed, 
were partially racial (App. 305a, 307a). In the court 
of appeals’ view, the racial motive was not the pri­
mary one (App. 316a). But a denial of equal pro­
tection of the laws does not depend on whether racial 
motives predominated; the Constitution does not per­
mit a state to be just a little bit discriminatory. At all 
events, in this case there is no dispute that the dual 
system violated the Constitution; the only question is 
how to remedy that constitutional violation. And, as 
we have discussed above, the district court properly 
concluded that a separate city system, would result in 
a less effective remedy for dismantling the dual 
system.

While the city’s desire to provide quality education 
is commendable, the district court made plain that it 
would consider any proposed modifications in the

26 We are furnishing respondents in this case with a copy 
of our Scotland Neck brief.



17

future that would achieve that end in the context of 
a unitary operation. This is precisely the approach 
required by Brown II, supra, and by Alexander v. 
Holmes County Board of Education, 396 U.S. 19. In 
these circumstances, the respondents did not satisfy 
their heavy burden under Green, as Judge Winter 
pointed out in dissent (App. 341a-342a) and, accord­
ingly, the judgment of the district court should have 
been affirmed.

CONCLUSION

For the foregoing reasons, the judgment of the 
court of appeals should be reversed.

Respectfully submitted.
Erwin N. Griswold,

Solicitor General.
David L. Norman,

Assistant Attorney General.
L awrence G-. W allace,

Deputy Solicitor General.
A. R aymond R andolph, Jr., 

Assistant to the Solicitor General.
Thomas M. Keeling,

Attorney.
F ebruary 1972.

U.S, GOVERNMENT PRINTING OFFICE: 1972



I