United States v. Scotland Neck City Board of Education Reply Brief for Petitioner

    No. 70-130

J n  t o  .Sttjntmc ( t a r t  of t o  I t it o d  States
October Term, 1971

U nited States op A merica, petitioner

v.
Scotland N eck City B oard op E ducation, et al.

ON W R IT  OF CERTIORARI TO THE UNITED STATES COURT OF 
APPEALS FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

E R W IN  N. GRISW OLD,
Solicitor General,

D A V ID  L. N O RM AN ,
Assistant A ttorney General, 

L A W R E N C E  G. W A L L A C E ,
D eputy Solicitor General,

A. R A YM O N D  RAN D O LPH , Jr.,
Assistant to the Solicitor General,

B R IA N  K. LANDSBERG,
TH O M AS M. K EELIN G ,

Attorneys,
Department o f  Justice, 

Washington, D.C. 20530.



I N D E X

Page

Opinions below_________________________________  1
Jurisdiction_____________________________________ 1
Question presented______________________________ 2
Constitutional and statutory provisions involved. _ 2
Statement______________________________________  3

A. The school system before the 1969-70
school year___________________________  3

B. Chapter 31, 1969 Session Laws of North
Carolina______________________________  7

C. The proceedings below_____________________ 12
Introduction and summary of argument____________ 16
Argument_________________________________________ 19

1. The separation of Scotland Neck from the 
Halifax County system would perpetu­
ate vestiges of the dual school system__  19

II. State statutes that restructure desegre­
gating school systems bear a heavy 
burden of justification if desegrega­
tion is thereby impaired_____________  23

III. The reasons given for establishing the 
Scotland Neck City school system do 
not satisfy the defendants’ heavy
burden of justification_______________  31

Conclusion____________________________.--------------  34
Appendix A _____________________________________ 35
Appendix B_____________________________________ 37
Appendix C_____________________________________ 43

CITATIONS
Cases:

Alexander v. Holmes County Board of Educa­
tion, 396 U.S. 19______ __________________  25

Bates v. Little Rock, 361 U.S. 516___________  30
(i)

451-436------- 1



II

Cases—Continued
Page

Bolling v. Sharpe, 347 U.S. 497----- *________  30
Brown v. Board of Education, 349 U.S. 294__  4,

29, 31
Brown v. Board of Education, 347 U.S. 483__  4,

16, 17, 18, 19, 28, 29
Buchanan v. Warley, 245 U.S. 60___________ 27, 31
Burleson v. County Board of Education Com­

missioners of Jefferson County, 308 F. Supp.
352, affirmed, 432 F. 2d 1356_____________  24

Bush v. Orleans Parish School Board, 188 F.
Supp. 916, affirmed, U.S. 569_____________  24

Cipriano v. City of Houma, 395 U.S. 701____  30
Cooper v. Aaron, 358 U.S. 1_________________29, 31
Davis v. Board of School Commissioners of

Mobile County, 402 U.S. 33_______________  22
Gaston County v. United States, 395 U.S. 285__ 33
Gomillion v. Lightfoot, 364 U.S. 339_________  24
Green v. School Board of New Kent County, 391

U.S. 430__________________ 5, 19-20, 22, 24-25, 30
Griffin v. County School Board, 377 U.S. 218__ 24, 33
Harper v. Virginia Board of Elections, 383 U.S.

663______________________________________  30
Heart of Atlanta Motel v. United States, 379

U.S. 241_________________________________  27
Henry v. Clarksdale Municipal Separate School 

District, 409 F. 2d 682, certiorari denied,
396 U.S. 940____________________________ ’ 22

Hunter v. Erickson, 393 U.S. 385____________24, 27
Korematsu v. United States, 323 U.S. 214_____  30
Kramer v. Union Free School District No. 15,

395 U.S. 621_____________________________  30
Lee v. Macon County Board of Education, 267 

F. 458, affirmed sub nom. Wallace v. United 
States, 389 U.S. 215 33



Ill

Cases—Continued Page
Lee and United States v. Macon County Board of

Education, 746 F. 2d 448__________________ 24, 26
Louisiana v. United States, 380 U.S. 145____  25
Loving v. Virginia, 388 U.S. 1______________  30
Lucas v. Forty-Fourth General Assembly, 377

U.S. 713_________________________________  24
McDaniel v. Barresi, 402 U.S. 39___________  20
McLaughlin v. Florida, 379 U.S. 184_______  30
Monroe v. Board of Commissioners, 391 U.S.

450_______________________________________ 23,31
North Carolina State Board of Education v.

Swann, 402 U.S. 43______________________  25, 27
Palmer v. Thompson, 403 U.S. 217__________  28
Plessy v. Ferguson, 163 U.S. 537____________  33
Poindexter v. Louisiana Financial Assistance 

Commission, 275 F. Supp. 833, affirmed, 389
U.S. 571__________________________________ 28-29

Raney v. Board of Education of Gould School
District, 391 U.S. 443_______________ ._____ 20

Reitman v. Mulkey, 387 U.S. 369____________ 24
Shapiro v. Thompson, 394 U.S. 618__________ 30
Sherbert v. Verner, 374 U.S. 398_____________  30
Smith v. Texas, 311 U.S. 128________________ 29
Swann v. Charlotte-Mecklenburg Board of Edu­

cation, 402 U.S. 1______________  22, 23, 24, 25, 30
Turner v. Warren County Board of Education,

313 F. Supp. 380, affirmed sub nom. Turner 
v. Littleton-Lake Gaston School District, 442
F. 2d 584________________________________  13,14

Wright v. Council of the City of Emporia, 442 
F. 2d 570, certiorari granted, October 12,
1971, No. 70-188_________________________14,15

Wright v. Georgia, 373 U.S. 284_______________31-32



IV

Cases—Continued
United States v. Indianola Municipal Separate 

School District, 410 F. 2d 626, certiorari de­
nied, 396 U.S. 1011______________________  22

United States v. Jefferson County Board of 
Education, 372 F. 2d 836, affirmed en banc 
380 F. 2d 385, certiorari denied sub nom.
Caddo Parish School Board v. United
States, 389 U.S. 840_____________________  23

Constitution and statutes:
United States Constitution, Fourteenth

Amendment, Section 1___________________  2
Civil Rights Act of 1964, Section 407, 42

U.S.C. 2000c-6________________________ 5, 12, 37
1969 Session Laws of North Carolina, Chapter

31__________________________________________ 7,
8, 12, 13, 14, 15, 18, 19, 20, 21, 22, 23, 26, 
27, 29, 30, 31, 32, 33, 34, 39



J tt  Wxt dfirort flf tlxt H t t M  p la te s
October Term, 1971

No. 70-130

U nited States of A merica, petitioner

v.
Scotland N eck City B oard of E ducation, et al.

ON W R IT  OF CERTIORARI TO TIIE UNITED STATES COURT OF 
APPEALS FOR T E E  FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The opinion of the court of appeals sitting en lane 
(App. 1104) and the dissenting opinions (App. 1126 
and 1140) are reported at 442 F. 2d 575, 588, and 593, 
respectively. The order and opinion of the district court 
entered on motion for preliminary injunction (App. 
788, 790) are not reported; the district court’s final 
opinion and order (App. 1062) are reported at 314 F. 
Supp. 65.

j u r i s d i c t i o n

The judgment of the court of appeals (App. 1118) 
was entered on March 23, 1971. The petition for a

(i)



2

writ of certiorari was filed on April 22, 1971, and 
granted on October 12, 1971 (App. 1152). The juris­
diction of this Court rests on 28 U.S.C. 1254(1).

QUESTION PRESEN TED

Whether the court of appeals erred in holding that 
a state may split a desegregating school district into 
multiple districts, even if  the establishment of a uni­
tary system is thereby impaired, unless the “ primary 
purpose”  of the split is to retain as much separation 
o f the races as possible.
CONSTITUTIONAL AN D  ST A T U T O R Y  PRO VISIO N S IN V O LV ED

Section 1 of the Fourteenth Amendment to the Con- 
titution of the United States provides as follows:

All persons born or naturalized in the United 
States, and subject to the jurisdiction thereof, 
are citizens of the United States and o f the 
State wherein they reside. No State shall make 
or enforce any law which shall abridge the 
privileges or immunities of citizens of the 
United States; nor shall any State deprive any 
person of life, liberty, or property, without 
due process of law; nor deny to any person 
within its jurisdiction the equal protection of 
the laws.

Section 407 of the Civil Rights Act of 1964, 42 
U.S.C. 2000c-6, is set out in Appendix A  to this 
brief, infra, pp. 37-38.

Chapter 31 of the 1969 Session Laws of North 
Carolina is set out in Appendix B to this brief, infra, 
pp. 39-44.



3
STATEM EN T

A. T he School System B efore the 1969-70 
School Y ear

Halifax County, North Carolina, is a 722 square- 
mile rural and agricultural region in the northern 
part of the State (App. 609).1 Near the center of 
the southeastern portion of the County is Scotland 
Neck, a small town with a population o f about 3000 
(App. 1063; App. C, infra, p. 45). Since 1936 the 
schools in Scotland Neck have been operated as part 
of the Halifax County Administrative Unit (App. 
1064).2

The Halifax County school system consists of eigh­
teen schools: nine elementary schools; one high school; 
and eight “ union” schools, which have students at both 
the elementary and secondary levels (App. 642). The 
only school within the town of Scotland Neck was a 
“ union” school. In the school year beginning in 1968, 
10,655 students attended schools within the County 
system; 77 percent o f these students were black, 22 
percent were white and 1 percent were American In­
dians (App. 727).3 Four o f the County’s schools, in­

1 The population o f the County was 58,956 in 1960 (App. 
591,609).

2 Within the geographic area o f Halifax County there are 
also two smaller, separately administered school units: the 
Eoanoke Eapids unit, and the Weldon unit, each of which is 
in the northwestern region and is bounded on the north by the 
County line (App. 605).

3 There were 8,196 black students, 2,357 whites and 102 Amer­
ican Indians (App. 727).



4

eluding the Scotland Neck school, were traditionally 
white only; the other fourteen were black only (App. 
635,1064).

In  the years following Brown 1 4 and Brown I I 5 the 
Halifax County school system remained completely 
segregated on the basis of race (App. 1064). In 1965 
the Comity system adopted a freedom-of-choice plan 
but little integration resulted and the dual school sys­
tem continued virtually intact (App. 1064). During 
the school year 1967-68, all of the white students at­
tended the four traditionally wdiite schools, and 97 
percent of the black students attended the other, 
traditionally all-black schools (App. 823-840). Only 
6 percent of the 875 students at the Scotland Neck 
school6 were black; at the Brawley school,7 less than 
one mile away and across the street marking the cor­
porate limits of Scotland Neck (App. 233), all 1,151 
students were black (App. 836, 825).8 During the 
1967-68 school year, 9,872—more than 90 percent-—of 
the students in the County system were transported to 
school by school buses (App. 648); the school bus sys­
tem was also segregated on the basis of race (App. 876). 
There were no attendance zones (App. 816), although 
the schools tended to serve identifiable areas (App. 273- 
277).

4 347 U.S. 483.
5 349 U.S. 294.
6 The Scotland Neck school had students from grades 1 to 12 

(App. 836).
7 The Brawley school also served grades 1 to 12 (App. 825).
8 All of the teachers at Brawley were black; 90 percent of the 

teachers at Scotland Neck were white (App. 865).



5

In July 1968, shortly after this Court’s decision in 
Green v. School Board of New Kent County, 391 U.S. 
430, the Department o f Justice notified the Halifax 
County school board, pursuant to Section 407 of the 
Civil Rights Act of 1964, 42 U.S.C. 2000c-6, that the 
operation of its schools did not comply with constitu­
tional requirements (App. 1064). Negotiations between 
the Board and the Justice Department resulted in 
agreement for a plan to disestablish the County’s dual 
school system by the fall o f 1969, with interim steps to 
be taken for the 1968-69 school year (App. 223, 225). 
The government therefore did not file suit.

The interim steps taken by the Board in the 1968- 
69 school year pursuant to its agreement with the Jus­
tice Department included assignment o f the seventh 
and eighth grades of the all-black Brawley school to 
the nearby Scotland Neck school (App. 223, 825). 
These and other assignments, as well as the Board’s 
promise to desegregate completely by the fall o f 1969, 
were given wide publicity in the local press (App. 
761, 773).9

Shortly before it received the notice letter from the 
Justice Department in July 1968, the Board had 
asked the North Carolina Department of Public In ­
struction to determine the steps necessary for the 
Board to meet its desegregation obligations and to

9 In the late summer and early fall o f 1968 local newspapers 
reported that the Board had been ordered to end the dual sys­
tem, that zoning or pairing of schools would be more effective 
than freedom-of-choice in doing so, and that integration was 
increasing in County schools, particularly in Scotland Neck 
where the proportion o f black students had reached 20 percent 
(App. 761-773).

451-431 -2



6

recommend the “ most effective organizational pat­
terns for the Comity schools in order ‘to insure the 
best education possible for the children’ ”  (App. 759). 
Pursuant to this request, the State Department o f 
Public Instruction conducted a survey of the County 
system in 1968. It  recommended as an Interim Plan10 
that assignments be made on the basis o f four geo­
graphic attendance zones, with pairing of grades be­
tween some schools (App. 606). For the zone served 
by the predominantly white Scotland Neck school and 
the all-black Brawley School, the plan prescribed a 
zoning-pairing arrangement with all students in 
grades 10-12 assigned to the Scotland Neck school 
and those in grade 9 to the Brawley school (App. 606, 
608, 681-682). For grades 1-8, students would attend 
one of the four other area schools in their vicinity,11 
or, if  they lived in the immediate area of the Scot­
land Neck and Brawley schools, those in grades 5-6 
would attend Scotland Neck and those in the remain­
ing grades (1-4 and 7-8 )would go to Brawley.12 Under

10 The survey, dated September 1968, also included a Long 
Range Plan, suggesting that two new high schools be built, 
one in the east and one in the west, to serve the entire County 
system (App. 598).

11 These schools had traditionally served only grades 1-8 
(App. 824,826,837, 838).

12 The area was thus consolidated into a single zone for 
secondary-level students; all these students would attend either 
Brawley or Scotland Reck school, depending on their grade 
level. For the elementary students the area was divided into 
5 sub-zones, with children in 4 o f the sub-zones assigned to 
the one school in their immediate area (Bakers, Dawson, 
Thomas Shields, and Tillery Chapel schools) and students in 
the 5th sub-zone (Brawley and Scotland Neck schools) assigned 
as stated in the text (App. 606, 681-682).



7

this plan an estimated total of 330 white and 740 
black students would attend B raw ley; 325 whites and 
640 blacks would attend Scotland Neck (App. 681- 
682).

Had the survey’s Interim Plan been implemented, 
some white students would have been assigned to each 
of the fourteen formerly all-black schools in the 
County and none of the four previously white schools 
would have retained a white majority (App. 681).13 
But the County Board declined to implement the 
Interim Plan and, in February 1969, also repudiated 
its agreement with the Department of Justice by vot­
ing to retain, with respect to the schools in the Scot­
land Neck-Brawley area, the freedom-of-choice plan 
under which it had been operating (App. 229, 245, 
585-586).

B. C hapter 31,1969 Session L aws of 
N orth Carolina

Shortly thereafter, on March 3, 1969, the North 
Carolina General Assembly enacted Chapter 31, 1969 
Session Laws of North Carolina (App. B, infra, 
pp. 39-44). This local law provided for a new school dis­
trict bounded by the corporate limits o f Scotland 
Neck and a supplemental tax assessment, upon ap­
proval by a majority of the city’s voters. In a special 
election held on April 8, 1969, the voters approved14

13 Only the formerly all-black Everetts elementary school in 
the northwestern section of the County (App. .829) would have 
had a slight white majority.

14 The vote was 81-3 for and 332 against (App. 1069). The 
total number of registered voters was 1382; of these, 360 were 
black (App. 104-105).



8

and thereafter some preliminary steps were taken so 
that the newly-created Scotland Neck City Adminis­
trative Unit could start operation at the beginning o f 
the 1969-70 school year (App. 1069-1070).

Chapter 31’s implementation would have resulted in 
carving out of the Halifax County system, which had 
a total of 10,655 students, a smaller school district of 
695 students, of whom 399 were white and 296 were 
black (App. 1071). This legislation thus created an 
enclave, 57 percent white and 43 percent black, from 
a school system having a 22 percent white and 77 per­
cent black student population.15 16

When introduced, Chapter 31 met immediate oppo­
sition, principally on the ground that the bill ad­
versely affected desegregation o f the County schools. 
In  remarks to a legislative committee, Dr. Craig 
Phillips, State Superintendent of Public Instruction 
for North Carolina, opposed the bill mainly on the 
ground that it was contrary to the trend of consoli­
dating school districts, and also expressed concern 
that it would increase, rather than decrease, the de­
segregation problem facing the Halifax County 
schools (App. 163-168, 1069).16 Black citizen groups,

15 Prior to 1969, the last time a separate school administrative 
unit was created in North Carolina was in 1954 (App. 173). 
In 1965, there was an unsuccessful legislative proposal for a 
separate school system within Halifax County which included 
not only the town of Scotland Neck hut also the portion of the 
surrounding area served by four of five all-black schools (App. 319, 
1066-1067). Under that proposal the students would have been 
about 3 to 1 black (App. 824-826, 836, 838) and would have 
continued to be assigned under freedom-of-choice (App. 352).

16 Dr. Phillips had given the same warning privately to the 
bill’s principal proponents when it was introduced (App. 161- 
163).



9

especially one led by Reverenced Deloatche, opposed it, 
as did the superintendent of the Halifax County sys­
tem (App. 1069). As newspaper accounts observed, 
the proposed new city system would establish “ an 
educational island dominated by whites,” and, “ [b ]y  
creating a sharper racial imbalance in municipal 
schools, the town would promote a sharper imbalance 
—in reverse— out in the county”  (App. 785).

Henry L. Harrison, for 13 years a member of the 
Halifax County Board of Education until he resigned 
in December 1968, testified that as one o f the bill’s 
chief proponents, he had told the legislature that the 
Scotland Heck area had lost 55 children to segregated 
private schools and that something had to be done to 
prevent further flight of white students (App. 369- 
370, 1074). This was the only point he made to the 
state legislature (App. 369-370). Another principal 
proponent, Frank P. Shields, stated that the bill’s pro­
ponents were concerned about the loss of whites to 
private schools, and felt that private schools provide 
education inferior to that of public schools. Together 
with most of the townspeople, the proponents were 
convinced, Shields stated, that the local bill was a bet­
ter solution than private schools to the white flight 
problem (App. 431-433, 107A-1075). Shields also ex­
pressed the view that the bill was a better alternative 
than pairing the Scotland Heck school with the Braw- 
ley school (App. 431).

The Chairman o f the Halifax County Board of 
Education, C. M. Moore, testified that, at the time the 
Scotland Heck bill had been introduced, he had stated



10

that the proposed separate school unit would be good 
for the people of Scotland Neck in view of the fact 
that black students outnumber white students in the 
Halifax County system by about four to one (App. 
125). He added that the County unit was every day 
losing white children to private schools, and that in 
the following year (1969-70) the system might lose a 
large number (App. 126). He stated that the people 
in Scotland Neck wanted the separate system as an 
alternative to private schools (App. 126-127).17

A  number of witnesses also testified that the bill 
would give the residents of Scotland Neck more con­
trol over their school and would enable them to have a 
supplemental local tax, both of which the residents 
considered desirable (App. 1073-1075). Dr. Phillips 
believed that the bill reflected the people’s “ concern 
about the quality o f education”  for the children of 
Scotland Neck (App. 1074). However, prior to the 
bill’s introduction no studies were made regarding 
educational advantages of the new district and no plans 
were made regarding how the supplement would be 
spent, although some people assumed it would be used 
to increase teachers’ salaries (App. 240,1076).

17 Counsel for the Scotland Neck City Board of Education 
stated in argument before the district court that Chapter 31 had, as 
its intended effect, retention of an acceptable white-black ratio and 
prevention of white flight (App. 1074; Tr. 117-118).



11

After Chapter 31 went into effect, the newly- 
appointed members of the Scotland Neck Board of 
Education devised a plan for transfer of students 
between the County system and the new system (App. 
1070-1071). By the end of August 1969, 350 white 
and 10 black students residing in the County outside 
Scotland Neck had applied for transfer into Scotland 
Neck school for 1969-70; 44 black and no white stu­
dents from the Scotland Neck system had applied to 
transfer out to the nearby all-black Brawley school 
in the County system (App. 1071) .1S This would have 
resulted in a total of 749 white students and 262 black 
students in the newly-created Scotland Neck unit. 
Thus, for the 1969-70 school year Scotland Neck 
school would have consisted of 74 percent white 
and 26 percent black students-—approximately the 
same white-black ratio that existed in the preceding 
year and a nearly complete reversal of the ratio under 
the State Survey’s Interim Plan to disestablish the 
County’s dual school system by 1969 18 19 and of the 
ratio for the County system as a whole. Since the 
school facilities within the corporate limits o f Scot­
land Neck were insufficient to accommodate even the 
695 resident students, the Scotland Neck Board leased

18 Scotland Neck charged a fee for the transfers into the 
system: $100 for the first child in a family; $25 for each of 
the next two children; and all others free-of-charge (App. 
1071).

19 Under this plan, an estimated 325 (34%) white students 
and 640 (66%) black students would have attended Scotland 
Neck school, see p. 7 swpra. The white-black ratio for the 
entire County system was 22:77.



12

from the County the former Scotland Neck Junior 
High School building, which was just outside the 
boundary o f the new district (App. 233, 253-255).

Chapter 31 is directly contrary to the State’s policy, 
as expressed by state education officials, that schools 
and school districts should be consolidated, not balkan- 
ized, in order to achieve increased efficiency and ef­
fectiveness in the operation of public schools (App. 
1075). The North Carolina Governor's Study Commis­
sion report of December 1968, which was endorsed by Dr. 
Craig Phillips, State Superintendent of Public Instruc­
tion, and supported by the North Carolina Teachers’ 
Association (App. 261), approved as a desirable district 
one with 9,000 to 10,000 pupils, and as a minimally 
acceptable district one with 3,500 to 4,000 pupils 
(App. 688,702).20 The 1968 State Survey made on behalf 
of the Halifax Comity system recommended consolida­
tion of the schools and school districts within the County 
(App. 587,597-600).

C. T he P roceedings B elow

The government’s complaint in this action, tiled on 
June 16, 1969, under Section 407 of the Civil Rights 
Act of 1964, 42 U.S.C. 2000c-6, sought an order to 
desegregate the Halifax County school system and an 
injunction against the operation of Chapter 31 (App.

20 Although some of the smaller school districts within the State 
ranked high in comparative teacher-pupil ratios, library books- 
pupil ratios and the like, the State Superintendent of Public 
Instruction explained that in no sense was this ranking intended, 
nor should it be used, as an educational evaluation o f the systems 
(App. 184).



13

26) .21 The district court, with both judges sitting,22 
found that Chapter 31 had “ the effect of creating a 
refuge for white students of the Halifax County 
School system, and interferes with the desegregation 
of the Halifax County School system, in accord with 
the plan adopted by said Board * * *.”  314 F. Supp. 
at 78 (App. 1083).23 Further finding that Chapter 31 
“ was at least partially motivated by a desire to stem 
the flight of white students from  the public schools” 
and “prevents the Halifax County Board of Educa­
tion from complying with the orders of this court is­

21 Scotland Neck City Board o f Education was added as a 
defendant by the government’s amended complaint o f August 
15,1969 (App. 62).

Other persons later intervened as plaintiffs, including two 
Halifax County teachers and a number o f minor school chil­
dren in the Scotland Neck System on behalf o f themselves 
and all other black public school teachers, parents and stu­
dents similarly situated (App. 1062 n. 1, 1063). The Attorney 
General o f North Carolina, on behalf of the State, also inter­
vened as a defendant (App. 1063).

22 There was a consolidated trial on the merits o f the instant 
case and Turner v. Warren County Board of Education, 313 
F. Supp. 380 (E.D.N.C.). Warren County is adjacent to Halifax 
County on the west; the town of Littleton lies partly in both 
counties. The Turner case involved the carving out o f two 
separate city administrative units from the Warren County 
system; the district court’s order and opinion enjoining that 
action was affirmed sub nom. Turner v. Littleton-Lake Gaston 
School District, 442 F. 2d 584 (C.A. 4).

23 In its amended answer to the government’s complaint, the 
School Board stated that it intended to allow only such trans­
fers as “ may be in conformity to the law and/or Court order 
or orders applicable to Defendant, and in conformity to a plan 
o f limitation of transfers to be prepared by Defendant and 
submitted to this Court” (App. 796). See, also, 442 F. 2d at 
592 (App. 1146-1147) (Winter, J., dissenting).

451-436------- 3



14

sued in protection of constitutional rights/’ 24 ^fhe
court issued, on May 23, 1970, an order enjoining the 
operation o f Chapter 31.25 * * 28

On appeal the court of appeals sitting en banc 20 
reversed, 442 F. 2d 575 (App. 1104), with Judges 
Sobeloff, 442 F. 2d 593 (App. 1126), and Winter, 
442 F. 2d 588 (App. 1140), dissenting. The court held 
that Chapter 31 did not interfere with the desegre­
gation of the Halifax County schools, that it did not 
create a white refuge, and, under the “ primary pur­

24 On November 24, 1969, the district court had ordered the 
Halifax County Board o f Education to submit a pi an by De­
cember 15, 1969, to end the entire dual system (App. 923-924). 
Earlier the court had ordered the Board to reconsider the In­
terim Plan recommended by the State Department of Public 
Instruction (see pp. 5-7 supra).

25 The district court, on November 3, 1969, had dismissed the 
Halifax County Board of Education from the portion of the 
case dealing with the constitutionality o f Chapter 31 (App. 
812).

On May 19, 1970, the district court ordered the Halifax 
County Board of Education to desegregate its school system, 
including Scotland Neck, pursuant to the Interim Plan pro­
posed by the State Department of Public Instruction, see 
pp. 5-7 supra, as modified by certain proposals of the Board (App. 
1098). Under the modified Interim Plan, Scotland Neck school 
served only grades 10-12 for District I ;  Brawley served grade 
9 for the entire District and grades 1-8 for students in the 
immediate vicinity of Scotland Neck and Brawley; the four 
remaining elementary schools in District I  served grades 1-8
for students in their vicinity (App. 1098, 1100).

28 After argument on September 16, 1970, before a panel of 
three judges, the case was reargued before the court en banc 
on December 7, 1970, along with the appeal in Turner v. Little- 
ton-Lake Gaston School District, 442 F. 2d 584, and Wright v. 
Council of the City of Emporia, 442 F. 2d 570, certiorari 
granted, October 12, 1971, No. 70-188.



15

pose”  test formulated in W right v. Council o f the 
City o f Emporia, 442 F. 2d 570, 572, certiorari 
granted, October 12, 1971, No. 70-188, decided by the 
court on the same day, that two non-racial justifica­
tions adequately explained the secession of Scotland 
Neck, even assuming that a more even racial balance 
would be more effective in creating a unitary system 
in  Halifax County, 442 F. 2d at 583 (App. 1116).27 2

2‘ The district court had found that “ the following motivat­
ing forces were responsible for the design of the legislation 
creating the separate Scotland Neck school district: (1) the 
desire to improve the education level in the Scotland Neck 
schools, the present conditions in those schools having been 
brought about by a lengthy history of neglect and discrimina­
tion with respect to financial allocations to the Scotland Neck 
schools by the Halifax County Board o f Education; (2) a 
desire on the part of the leaders o f Scotland Neck to preserve 
•a ratio of black to white students in the schools of Scotland 
Neck that would be acceptable to white parents and thereby 
prevent the flight of white students to the increasingly popular 
all-white private schools in the area; (3) a desire on the part 

o f  the people o f Scotland Neck to control their own schools 
and be in a position to determine their direction with more 
finality than if the schools were a part of the Halifax County 
system. In ascertaining such a subjective factor as motivation 
and intent, it is o f course impossible for this Court to accu­
rately state what proportion each o f the above reasons played 
in the minds of the proponents of the bill, the legislators or 
the voters o f Scotland Neck, but it is sufficient to say that the 
.record amply supports the proposition that each o f the three 
played a significant role in the final passage and implementa­
tion of Chapter 31.” 314 F. Supp. at 72 (App. 1073). The 
court of appeals stated: “There is evidence in the record to 
show that the three purposes that the District Court found 
were intended by the proponents o f Chapter 31 were presented 
'to the Legislature.” 442 F. 2d at 582, n. 3 (App. 1113-1114 
n. 3)..



16

The court did, however, enjoin the proposed transfer- 
plan on the ground that it would tend to resegregate 
the school systems (App. 1117).28

IN TRODUCTION AN D  SU M M A R Y  OR AR G U M EN T

Over the years that passed after Brown I , Halifax 
County continued to operate a dual school system. In 
the summer of 1968 the Halifax County Board of 
Education at last faced up to its constitutional duty 
by agreeing to a plan to desegregate its schools, but 
the Board subsequently repudiated the agreement and 
Scotland Neck, a majority white enclave in the pre­
dominantly black system, was purportedly removed 
by special legislation from the County school system. 
This, in brief, is the setting of the present litigation.

Scotland Neck’s secession would significantly im­
pede desegregation of the County school system. I f  
the secession were effective, the traditionally all-white 
Scotland Neck school could not be paired with the all­
black Brawley school nearby, even though when oper­
ated on a segregated basis both schools served the 
same grades and the same area. Instead of reflecting 
the racial composition of the students in that area, as 
they would if  the schools were desegregated as part 
of the same system, Scotland Neck school would be 57 
percent white and 43 percent black while Brawley 
school, less than one mile away, would be 90 percent 
black and 10 percent white. In addition, by remaining 
the identifiably “ white”  school for the area, Scotland 
Neck would, and in fact did, attract white students.

28 The court o f appeals stayed its mandate on April 21, 1971 
(App. 1151).



17

from the surrounding region; thus, the secession would 
be likely to induce shifts in residential patterns that 
would tend toward even greater resegregation.

The constitutionality of the carving out of a new 
school district from a larger, segregated district 
should be adjudged in light o f the state’s obligation 
to convert the dual school system to a unitary system 
in which the racial segregation o f the past is entirely 
uprooted. Where, as in this case, the new state law im­
pedes disestablishment of the dual school system and 
the prior existence of the larger district promoted and 
facilitated the operation o f a dual system, creation of 
new boundaries that bring about significantly less de­
segregation is, we submit, not constitutionally per­
missible unless there is a showing of compelling justi­
fication.

The court of appeals erred in holding that unless 
the “ primary purpose”  o f the secession is discrimina­
tory, there is no denial of equal protection of the laws. 
It is undisputed that one of the purposes of Chapter 
31 was to separate a predominantly white group of 
students from a predominantly black group. The Act 
clearly had that effect. Even assuming, therefore, that 
the “ primary”  purpose or motive of such legislation 
can accurately be determined by a court, there was no 
need for such a determination here. For neither in 
Brown  v. Board of Education, 347 TJ.S. 483, nor in 
any subsequent case has this Court distinguished be­
tween racial segregation with a predominantly racial 
purpose and racial segregation with a racial purpose 
o f  some lesser degree; the Constitution does not permit 
a state to be some/or just a little bit discriminatory.

<■W



18

The relevant question is, accordingly, whether the" 
state has shown a compelling non-racial justification 
for impeding desegregation— and thus that the racial 
effect o f its action is non-disc riminatory. The pur­
poses of the action it has taken bear on that showing. 
And if one of the purposes is racial, this necessarily re­
inforces the stigma of implied racial inferiority that a 
dual school system fosters and that conversion to a 
unitary system is cjifigned to eliminate. Thus, if  in addi­
tion to impeding desegregation, the legislation has a 
racial purpose, this perpetuates the very evil that Brown 
sought to eliminate.

In  this case, the justifications offered for Chapter 
31, particularly in view of the available alternatives, 
are plainly inadequate to overcome the interests of 
the children of Halifax County in a unitary, nonracial 
school operation. “ Local control,”  i f  desired, could 
have been achieved through creation of a school unit 
more nearly approximating the racial composition of 
the County system; in 1965 area residents in fact pro­
posed such a district. Moreover, by narrowing the 
proposed district to include only Scotland Neck, 
Chapter 31 conflicts with the state education agency’s 
nncontroverted study and recommendations regarding 
improvement of the quality of education in the County 
system. And, of course, the State could have provided 
for the special financial needs of the Scotland Neck 
school and of the County system by other means, if  
this were found necessary. In  the face of a history o f  
racial segregation, however, the state cannot constitu­



19

tionally create a predominantly “ white” district for 
the school to be “ improved” and a separate, predomi­
nantly black district for the other schools. The dis­
trict court correctly held that there was no compelling 
state interest in improving the schools in that way.

AR G U M EN T

Creation of new school districts, like gerrymandered 
zoning within a school district, can perpetuate exist­
ing dual operations or impede desegregation efforts. 
Here the district court found that creation of the Scot­
land Heck City Administrative Unit interfered with 
desegregation of the Halifax County schools. In reach­
ing a contrary conclusion, the court of appeals, we 
submit, did not give due regard to the setting within 
which Chapter 31 was enacted, the intended effect it 
would have on the Halifax County schools immediately 
surrounding Scotland Heck, and the long-range con­
sequences o f a separate Scotland Heck unit, which had 
already attracted white students away from the Hali­
fax Coimty school system.

I

THE SEPARATION OF SCOTLAND NECK FROM THE HALIFAX 
COUNTY SYSTEM WOULD PERPETUATE VESTIGES OF THE 
DUAL SCHOOL SYSTEM.

Under Chapter 31 Scotland Heck pulled out of a 
school system moving reluctantly but definitely toward 
integration after 15 years of noncompliance with the 
mandate o f Brown. It is only against this background 
that the effect of Chapter 31 can accurately be as­
sessed. See Green v. County School Board of New



20

Kent County, 391 U.S. 430, 437.29 When the schools of 
Halifax County operated on a dual basis, the town 
of Scotland Heck and its environs were served by two 
grade 1-12 schools, Scotland Heck and Brawley, and 
a few scattered elementary schools.30 Scotland Heck 
school served all the white students in the region; the 
Brawley school, less than one mile away, served only 
black students.31 Because of the size o f the region, the 
proximity of the two schools, and the large percent­
age of whites who lived within the corporate limits of 
Scotland Heck, it appeared that the only way to con­
vert the dual system to a unitary, nonracial system 
would be to pair the two grade 1-12 schools.32 That 
was the remedy eventually chosen by the Halifax 
County Board of Education and approved by the dis­
trict court.33 See McDaniel v. Barresi, 402 U.S. 39, 41.

29 Because of its overriding concern with the motivation for 
the enactment of Chapter 31 (see point II , infra), the court 
o f appeals directed its attention primarily to the previous 
efforts to obtain a separate system including Scotland Heck 
rather than to the history showing the likely effect of the 
Act. See 442 F. 2d at 580 (App. 1110-1111).

30 See map attached as Appendix C to this brief, p. 45, infra. The 
map shows the grade structure under the court-ordered desegrega­
tion plan. See note 25, supra. Previously, Scotland Neck and 
Brawley had served grades 1-12, and the other schools had 
served grades 1-8. See pp. 3-4, supra.

31 Brawley is located on the County side o f the street that 
serves as the city limits o f Scotland Neck. See Appendix C, 
infra, p. 45.

32 Within the described zone, the operation o f the schools 
was essentially the same as that in Green v. County School 
Board of New Kent County, 391 U.S. 430, and Raney v. Board 
of Education o f the Gould School District, 391 U.S. 443, ex­
cept for the fact that a large percentage o f  the white students 
lived in one particular area (Scotland Neck).

33 See note 25, supra.



21

Chapter 31 had a profound effect on the Board’s 
ability to disestablish its dual school system. By to­
tally removing the school in Scotland Neck and the 
students residing there, Chapter 31 insulated Scotland 
Neck from the imminent desegregation of the County 
system. Had it been fully implemented, Chapter 31 
would have effectively “ zoned” most o f the black stu­
dents in the region out of the Scotland Neck school, 
and zoned the white students residing in Scotland 
Neck out of Brawley. As a result, the Brawley school 
would have been left with a 90 percent black student 
population while the student body at the Scotland 
Neck school would have been 43 percent black.34 The 
doors o f the traditionally white-only Scotland Neck 
school had in the past been closed fo r  the black stu­
dents in the area, not because of where they resided 
but because o f their race. With Chapter 31 fully in 
effect those doors would remain closed; the County 
school board, although charged with the duty to end 
its dual school system immediately, would be deprived 
o f its authority to open them.

Thus, instead of the Scotland Neck and Brawley 
schools having nearly the same white-black ratio,35 
reflecting the student population of the area tradi­
tionally served by both schools on a segregated basis, 
under Chapter 31 Scotland Neck would remain the 
identifiably “ white” school for the region. The local

34 Defendants' Ex. A, dated June 24,1970, reprinted in App. 12b 
to brief of intervenors Pattie Black Cotton, et al. The disparity 
■would have been even greater und,er the transfer plan, see p. 11
■supra.

35 Under the Interim Plan proposed by the State Department 
o f  Public Instruction, the white:black ratio in both schools 
would have been approximately 1: 3 (App. 681-682).



22

proponents of the Act of course recognized this and, 
to the students in the area, the message was clear. 
B y August 1969, 350 white students sought transfers 
from the Halifax County system into Scotland Neck; 
not a single white student sought to transfer out o f 
Scotland Neck (see supra, p. 11). Under the stand­
ards applied by federal courts in reviewing school 
board desegregation plans, therefore, a proposal such 
as Chapter 31 would not be acceptable. See, e.g., 
Henry v. Clarksdale Municipal Separate School Dis­
trict, 409 F. 2d 682 (C.A. 5), certiorari denied, 396 
U.S. 940; United States v. Indianola Municipal Sepa­
rate School District, 410 F. 2d 626 (C.A. 5), certiorari 
denied, 396 U.S. 1011. Compare Swann v. Charlotte- 
Mecklenburg Board of Education, 402 U.S. 1 ,26.°6

Indeed, the adverse effect of Chapter 31 went be­
yond even its immediate impact. As the district court 
held, Chapter 31 was “ enacted with the effect o f cre­
ating a refuge for white students o f the Halifax 
County School system.”  314 F. Supp. at 78 (App.. 
1083). The proponents of the legislation knew that 
the implementation of Chapter 31 would attract white 
students to the newly created Scotland Neck system 
and urged passage of the Act for that reason. The first 
returns on the transfer arrangement plainly show that 36

36 See also Davis v. Board of School Commissioners of Mobile 
County, 402 U.S. 33, where this Court rejected a desegregation 
plan that treated the western section of the district in isolation 
from the eastern, and Green, supra, 3S1 U.S. at 442, where the 
Court held that an acceptable desegregation plan must “prom­
ise realistically to convert promptly to a system without a 
‘white’ school and a ‘Negro’ school, but just schools.”



23

Chapter 31 had just that effect. In Swann this Court ob­
served that “ [pjeople gravitate toward school facili­
ties,”  402 U.S. at 20. See also United States v. Jeffer­
son County Board of Education, 372 F. 2d 836, 876 
(C.A. 5), affirmed en banc, 380 F. 2d 385, certiorari 
denied sub nom. Caddo Parish School Board v. United 
States, 389 U.S. 840. In light of past experience, o f  
opinions expressed by the proponents of Chapter 31, 
and the evidence presently available, Scotland Neck’s 
secession would be likely to have a substantial impact on 
future residential patterns. See Swann, supra, 402 
U.S. at 20-21. The pressure would be hi the direction 
o f a Scotland Neck system approaching roughly the 
same racial characteristics that would have resulted 
from the proposed transfer provision, which even the 
majority of the court of appeals held would tend “ to­
ward establishment of a resegregated system. ’ ’ 442 F. 2d 
a t583 (App. 1117).37

II

STATE STATUTES THAT RESTRUCTURE DESEGREGATING 
SCHOOL SYSTEMS BEAR A HEAVY BURDEN OF JUSTIFICA­

TION IF DESEGREGATION IS THEREBY IMPAIRED

The court of appeals declined to “ view the results 
of severance as i f  it were part of a desegregation plan 
for the original system” because the severance was 
“ an action by the Legislature redefining the bounda­
ries of local governmental units”  (442 F. 2d at 583;

37 The free transfer arrangement was thus invalid, as the 
court o f appeals held. Monroe v. Board of Commissioners, 391 
U .S . 450.



24

App. 1115). But a state’s power to “ establish, destroy, 
or reorganize by contraction or expansion its political 
subdivisions”  is not absolute. Gomillion v. Lightfoot, 
364 U.S. 339, 342. Where new school districts have 
been formed by action of local governmental units 
under general enabling statutes of a state, the federal 
courts have properly treated those new districts under 
the Green and Swann standards as though they were 
part of the original district. Lee and United States v. 
Macon County Board of Education, 448 F. 2d 746 
(C.A. 5 ) ;  Burleson v. County Board of Election Com­
missioners of Jefferson County, 308 F. Supp, 352, 357 
(E.D. A rk.), affirmed, 432 F. 2d 1356 (C.A. 8).

Since the obligation to provide a constitutional sys- 
stem of public education is ultimately the state’s (see 
Griffin v. County School Board, 377 U.S. 218), there 
is no reason to apply a different standard merely 
because “ rezoning” is brought about by state legis­
lation. € f . Bush v. Orleans Parish School Board, 188 
F. Supp. 916, 922 (E.D. La.), affirmed, 365 U.S. 569.33 * 3S 
In both situations the constitutionality of the changes 
made in the formerly segregated school system are 
to be judged in light of the state’s obligation “ to take 
whatever steps might be necessary to convert to a 
unitary system [o f school operation] in which racial 
discrimination [is] * * * eliminated root and branch. ”

33 It is o f no legal consequence that the reorganization in­
volved here was accomplished in part by the referendum proc­
ess. Lucas, v. Forty-Fourth General Assembly, 377 U.S. 713;
Reitman v. Mulkey, 387 U.S. 369; Hunter v. Erickson, 393 U.S. 
385.



25

Green, supra, 391 U.S. at 437-438.39 See also Swann v. 
Gharlotte-Mecklenburg Board of Education, 402 U.S. 
1, 15.

Recently, in declaring unconstitutional a state stat­
ute that “ would inescapably operate to obstruct the 
remedies granted by the District Court,” this Court 
stated:

[ 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 vindica­
tion of federal constitutional guarantees.

North Carolina State Board of Education v. Swann,. 
402 U.S. 43, 45. It should make no difference that the 
“ state-imposed limitation”  is enacted before the 
school board is actually under order by a federal 
court to desegregate. This is particularly so in a case 
such as this where the Halifax County Board had 
agreed to desegregate and court action became neces­
sary only after the Board repudiated its agreement 
(see p. 5 supra). In view of the state’s constitutional 
duty to uproot racial segregation altogether and at once, 
see Alexander v. Holmes County Board of Education 
396 U.S. 19, the relevant question in each instance

39 In another context of racial discrimination, this Court de­
fined the federal court’s power and duty, and thus the state’s 
obligation, as elimination of the “ discriminatory effects o f the 
past as well as to bar like discrimination in the future.” Loui­
siana v. United States, 380 U.S. 145, 154.



26

is whether the state law hinders disestablishment of 
the dual school system.

Where, as here, the utilization of a consolidated 
district facilitated and promoted the operation o f a 
dual system, the creation of new boundaries that would 
impair disestablishment of the dual system by causing 
significantly less desegregation should not be per­
mitted to stand unless there is a showing of compel­
ling justification. See Lee v. Macon County Board of 
Education, (C.A. 5 No. 30154, June 29, 1971), slip 
op. at pp. 11-12. Judged by these standards, Chapter 
31 plainly denied equal protection of the laws to the 
school children of Halifax County.40 For them, Chap­
ter 31 reinforces and perpetuates the stigma of implied 
racial inferiority that existed while Scotland Neck 
school was all-white and Brawl ey was all-black. The 
vestiges of the dual system can be eliminated only if, for 
the purpose of desegregation, both schools are treated as 
part of the same system imder which racial segregation 
existed.

The court o f appeals, however, judged the constitu­
tionality of Chapter 31 on the basis of the test it for­
mulated in the Emporia case:

40 In point I I I  infra we contend there has been no showing of 
compelling justification in this case.



27

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 o f the racial balance, short o f re­
segregation, the federal courts should not in­
terfere. If, however, the primary purpose for 
creating 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 segregation. [442 
F. 2d at 572.]

This “ primary purpose”  test is, we submit, inconsist­
ent with the test applied by this Court in North Caro­
lina State Board of Education, supra, and has no 
basis in prior decisions o f this Court assessing the 
constitutionality o f state laws.

Here the record shows, and both courts below 
agreed," that one purpose o f Chapter 31 was to sepa­
rate a predominantly white group of students from a 
larger, predominantly black group of students. The 
Act clearly had that effect. As with any legislation, 
there may have been other motives or reasons behind 
its enactment.41 42 But in the sensitive area of school 
desegregation, the prophesy that there will often be a 
number of reasons for secession runs a substantial

41 314 F. Supp. at 72 (App. 1073) and 442 F. 2d at 581 (App. 
1112).

42 The possible variety of mixed motives is well illustrated by 
such cases as Buchanan v. Warley, 245 U.S. 60 (maintenance 
of public peace and property values) ; Heart of Atlanta Motel v. 
United States, 379 U.S. 241, 260 (fear of economic loss); and 
Hunter v. Erickson, 393 U.S. 385, 392 (need to move slowly in 
a delicate area of race relations).



28

risk of becoming self-fulfilling, as Judge Sobeloff sug­
gests in dissent (442 F. 2d at 594; App. 1128). More­
over, in Palmer v. Thompson, 403 U.S. 217, 225, this 
Court observed that it “ is difficult or impossible for 
any court to determine the ‘ sole’ or ‘ dominant’ moti­
vation behind the choices of a group of legislators. ’ ’ 43 
W e add that in the situation presented here it is also 
unnecessary.

This Court held in Palmer that the dominant motive 
or purpose of the legislators cannot by itself serve to 
invalidate the legislation. Similarly, their “ primary 
purpose” cannot in itself validate it, at least where, 
as here, one of the reasons for the enactment was 
discriminatory.44 In  holding that state-imposed “ [ s e p ­
arate education facilities are inherently unequal,”  
Brown v. Board of Education, 347 U.S. 483, 495, this 
Court did not distinguish between racial segregation 
with a 40 percent racial purpose and racial segrega­
tion with a 60 percent racial purpose. “ There is no 
such thing as a State’s legitimately being just a little 
bit discriminatory.” Poindexter v. Louisiana Finan­
cial Assistance Commission, 275 F. Supp. 833, 835

43 Indeed, the district court here found the task impossible:
“ In ascertaining such a subjective factor as motivation and 
intent, it is of course impossible for this Court to accurately 
state what proportion each of the above reasons played in the 
minds of the proponents of the bill, the legislators or the voters 
of Scotland Neck * * 314 F. Supp. 65, 72 (App. 1073).

44 See Palmer v. Thompson, supra, 403 U.S. at 226 ( “ Peti­
tioners have argued strenuously that a city’s possible motivations 
to ensure safety and save money cannot validate an otherwise 
impermissible state action. This proposition is, of course, 
true.” ).



29

(E.D. La.), affirmed, 389 U.S. 571. Indeed, however 
innocent its motives, a state may not simply ignore 
the racial consequences of its actions, for it has long 
been settled that “ [w]hat the Fourteenth Amendment 
prohibits is racial discrimination * * * whether ac­
complished ingeniously or ingenuously * * *.”  Smith 
v. Texas, 311 U.S. 128, 132. See Cooper v. Aaron, 
358 U.S. 1,17.

This is not to say that purpose is irrelevant. To the 
contrary, if, in addition to having the effect of imped­
ing desegregation, the legislation has a racial pur­
pose, the stigma of implied racial inferiority is not only 
perpetuated, but intensified. Moreover, the state’s bur­
den of coming forward with a compelling justification 
for its action necessarily draws into question the pur­
pose of the legislation; if  one of the purposes is racial, 
this is a relevant factor in assessing whether the state 
has met that burden.

In  sum, since both courts below found that at least 
one purpose of Chapter 31 was to separate, for racial 
reasons, a “ more white”  school district from a “ more 
black” school district, and since the Act had that 
effect to the detriment of desegregation o f the Hali­
fax County school system, the appropriate standard 
for measuring compliance with the Fourteenth 
Amendment and for securing the promise of Brown 
1 45 * and Brownjp  is that applied by this Court in 
reviewing other state laws or actions that impinge

45 Brown v. Board of Education, 347 U.S. 483.
4(5 Brown v. Board of Education, 349 U.S. 294.



30

upon fundamental rights47 or are based on “ suspect 
criteria.”  48 In  our view, that standard is no different 
in substance from the “ heavy burden * * * [placed 
upon a school board] to explain its preference for an 
apparently less effective method [o f desegregation].” 
Green, supra, 391 U.S. at 439. See also Swann, supra, 
402 U.S. at 26. Green and Sivann and the federal court 
cases applying those decisions provide, we submit, the 
informed body of law against which this Court should 
measure Chapter 31 in light of the setting of the Act, 
the available alternatives, and the magnitude of the 
state’s interest in pursuing that particular course 
of action.49

As noted above, Chapter 31, i f  implemented, would 
impede the establishment o f a nonracial, unitary 
school system for  the students of Halifax County. To 
remedy that situation, the district court could have 
permitted the continuance of Scotland Heck as a sepa­
rate system but required that, for the purposes o f 
student and faculty assignment, the schools would be

47 Shapiro v. Thompson, 394 U.S. 618, 634 (interstate travel); 
Kramer v. Union Free School District No. 15, 395 U.S. 621, 
626, and Cipriano v. City of Houma, 395 U.S. 701, 704 (vot­
ing) ; Sherbert v. Verner, 374 U.S. 398, 406 (exercise of reli­
gion) ; Bates v. Little Rock, 361 U.S. 516, 524 (freedom of 
association) ; Loving v. Virginia, 388 U.S. 1, 11 (right to 
marriage).

iS Korematsu v. United States, 323 U.S. 214, 216, and Mc­
Laughlin v. Florida, 379 U.S. 184, 191-92 (race) ; Harper v. 
Virginia Board o f Elections, 383 U.S. 663, 668 (wealth). See 
also Bolling v. Sharpe, 347 U.S. 497, 499-500.

49 See cases cited in footnotes 1 through 5, 442 F. 2d at 593- 
594 (dissenting opinion o f Judge Sobeloff) (App. 1126-1127).



31

treated as part of the Halifax County system. It is not 
clear, however, that the citizens of Scotland Neck 
would want to operate a separate system in those cir­
cumstances, and the remedy chosen by the district 
court—invalidation of the Act— does not preclude 
their seeking new legislation should they desire to 
operate in that maimer in the future.50 Either remedy 
would be appropriate here.

I l l

THE REASONS GIVEN FOR ESTABLISHING THE SCOTLAND 
NECK CITY SCHOOL SYSTEM DO NOT SATISFY THE DE­
FENDANTS’ HEAVY BURDEN OF JUSTIFICATION

The defendants asserted three reasons for the cre­
ation o f the Scotland Neck City Administrative U nit:
(1) desire for more local control over the schools;
(2) need to increase expenditures for the school; and
(3) prevention o f anticipated white flight from  the 
public schools. The third reason, o f course, provides 
no ground for  continuing a dual system o f schools, 
Monroe v. Board of Commissioners, supra, 391 U.S. 
at 459; compare Buchanan v. W arley , 245 U.S. 60, 
81; Brown v. Board of Education, 349 U.S. 294, 300; 
Cooper v. Aaron, 358 U.S. 1, 16; W right v. Georgia,

50 Even to this limited degree, Scotland Neck is not forever 
“ locked-in” to the Halifax County school system. When de­
segregation o f the County system takes place and the subse­
quent passage o f  time cleanses the taint o f racial segregation, 
the situation will o f course be different. But, as we have em­
phasized, the validity of Chapter 31 should now be determined 
in light o f the fact that it came in the wake o f 15 years of 
failure to comply with Brown.



32

373 U.S. 284, 291-293, and clearly does not justify 
the racial effect o f Chapter 31.

Especially in light of the alternatives available, the 
other two reasons are, in our view, also plainly insuffi­
cient as justification to override the constitutional 
right o f the students of Halifax County to a school 
system operated entirely without racial discrimination. 
In  assessing the state interest involved, it is significant 
that the proponents’ desire for “ local control”  appar­
ently never arose until 1965,151 and that sufficient impetus 
for enabling legislation was not obtained until the eve of 
full-scale desegregation in 1969. Moreover, the legis­
lation proposed in 1965 encompassed an area larger 
than the limits of the City of Scotland Neck, including 
the nearby Brawley School, and the resulting student 
population would have nearly approached the racial 
composition o f the County as a whole.52 By narrowing 
the area to be covered, the defendants have chosen to 
operate a school district more clearly of a size directly 
in conflict with the recommendations of the state edit 
cation agency.'"'

While the defendants contend that with local control 
they could spend more money on Iheir schools and 
finis improve the ipialify of education, they did not 
have any actual plans for spending the extra money nor 
had they made any advance studies of the educational 
advantages, if any, of the new district (see 442 F, 2d 
at 599, A pp 1136 1137). That failure Is es| racially sign if

Hrc mil, I fi, Hii/ift l .

/ bid,
"" Her 11, ti 7, Hii/iru.



83

leant since they did not have sufficient facilities to 
accommodate even the small number of students in the 
new district.51 Normally, such a choice would be explic­
able only in terms of ral&e. Lee v. Macon County Board of 
Education 267 F. Supp. 458, 472 (M.D. Ala.), affirmed 
sub nom. Wallace v. United States, 389 U.S. 215.

In any event, we are dealing here with legislation by 
the state, and it is clear that, whatever options were 
available to the local proponents, the state legislature 
could have dealt with the Scotland Neck problem by 
other means. Cf. Griffin v. County School Board, 377 
U.S. 218. Indeed, the state education agency suggested 
a compelling interest in keeping Scotland Neck part 
o f the Halifax County system.55 Moreover, if the ob­
ject is to improve the Scotland Neck schools, it would 
indeed be an anomaly if, in the face o f a past history 
of racially disparate educational opportunities, see Gas­
ton County v. United States, 395 IJ.S. 285, the state 
legislature could “ by the Himple expedient o f label 
ing the two sets of schools as separate districts,”  442 
h\ 2d at 598 (App, 1134), create a predominantly 
white district, tor schools to be ".improved " and a sop 
arate, predominantly black district ter the other 
scIiooIh. Ultwfj v. Cer/jutmii, HIM H.N. 537, On this 
record, the district court held that I here was no state 
interest in improving the schools in that way. We he-

M Httu pp, ii 18, m y m ,

H The 100N Hkftta Harvey of l lidlfii* Ooanty schools recoin 
mended precisely flic opposite result to Unit nr Moved by Cletp 
ter III. Hew pp. h 7, m/mt.



34

lieve that finding was amply justified and that the 
court’s judgment invalidating Chapter 31 should have 
been affirmed.

CONCLUSION

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

Respectfully submitted.
E r w in  N. G risw old ,

Solicitor General.
D avid L. N o r m a n ,

Assistant Atorney General.
L a w r en c e  G. W allace ,

Deputy Solicitor General.
A . R a ym o n d  R a n d o lph , J r .
Assistant to the Solicitor General.
B r ia n  K . L andsberg,
T h o m a s  M. K eelin g ,

Attorneys.

D ecem ber  1971.



A p p e n d ix  A

Section 407 of the Civil Rights Act of 1964, 42 
U.S.C. 2000c-6, provides:

§ 2000c-6. Civil actions by the Attorney Gen­
eral.
(a) Complaint; certification; notice to school 

board or college authority; institution of 
civil action; relief requested; jurisdiction; 
transportation o f  pupils to achieve racial 
balance; judicial power to insure compli­
ance with constitutional standards; im­
pleading additional parties as defendants.

Whenever the Attorney General receives a 
complaint in writing—

(1) signed by a parent or group of par­
ents to the effect that his or their minor 
children, as members of a class of persons 
similarly situated, are being deprived by a 
school board of the equal protection o f the 
laws, or

(2) signed by an individual, or his par­
ent, to the effect that he has been denied 
admission to or not permitted to continue 
in attendance at a public college by reason 
of race, color, religion, or national origin.

and the Attorney General believes the complaint 
is meritorious and certifies that the signer or 
signers of such complaint are unable, in his 
judgment, to initiate and maintain appropriate 
legal proceedings for relief and that the insti­
tution of an action will materially further the 
orderly achievement of desegregation in public 
education, the Attorney General is authorized, 
after giving notice of such complaint to the ap­
propriate school board or college authority and

(35)



36

after certifying that he is satisfied that such 
board or authority has had a reasonable time to 
adjust the conditions alleged in such complaint, 
to institute for or in the name of the United 
States a civil action in any appropriate district 
court of the United States against such parties 
and for such relief as may be appropriate, and 
such court shall have and shall exercise juris­
diction o f proceedings instituted pursuant to 
this section, provided that nothing herein shall 
empower any official or court of the United 
States to issue any order seeking to achieve a 
racial balance in any school by requiring the 
transportation of pupils or students from  one 
school to another or one school district to 
another in order to achieve such racial balance, 
or otherwise enlarge the existing power o f the 
court to insure compliance with constitutional 
standards. The Attorney General may implead 
as defendants such additional parties as are or 
become necessary to the grant o f effective relief 
hereunder.
(b) Persons unable to initiate and maintain 

legal proceedings.
The Attorney General may deem a person or 

persons unable to initiate and maintain appro­
priate legal proceedings within the meaning of 
subsection (a) of this section when such person 
or persons are unable, either directly or through 
other interested persons or organizations, to 
bear the expense of the litigation or to obtain 
effective legal representation; or whenever he 
is satisfied that the institution o f such litigation 
would jeopardize the personal safety, employ­
ment, or economic standing of such person or 
persons, their families, or their property.
(c) “ Parent” and “ complaint” defined.

The term “ parent”  as used in this section in­
cludes any person standing in loco parentis. A  
“ complaint” as used in this section is a writing 
or document within the meaning of section 
1001, title 18, United States Code.



A p p e n d ix  B

Chapter 31 of the 1969 Session Laws of North 
Carolina, is entitled and provides:

“ A n  A ct to I mprove  and  P rovide P ublic  
S chools o r  a  H igher . S tandard  for th e  
R esidents of S cotland  N eck  in  H a lifa x  
C o u n ty , to E stablispi t h e  S cotland  N eck  
C it y  A dm in istr a tiv e  U n it , to P rovide for 
th e  A d m in istr a tio n  of tile P ublic  S chools 
in  S aid  A d m in istr a tiv e  U n it , to L evy  a 
S pecial  T a x  foe th e  P ublic  S chools of S aid 
A dm in istr a tiv e  U n it , A ll  of W h ic h  S h a l l  
B e S u bject  to t h e  A pproval of tile V oters 
in  a R eferendum  or S pecial  E lection

“ S ection  1. There is hereby classified and 
established a public school administrative unit 
to be known and designated as the Scotland 
Neck City Administrative Unit which shall con­
sist of the territory or area lying and being 
within the boundaries or corporate limits of the 
Town of Scotland Neck in Halifax County, and 
the boundaries of said Scotland Neck City Ad­
ministrative Unit shall be coterminous with the 
present corporate limits or boundaries of the 
Town of Scotland Neck. The governing board 
of said Scotland Neck City Administrative Unit 
shall be known and designated as the Scotland 
Neck City Board of Education, and said Scot­
land Neck City Board of Education (hereinafter 
referred to as: Board) shall have and exercise 
all o f the powers, duties, privileges and author­
ity granted and applicable to city administrative 
units and city boards of education as set forth 
in Chapter 115 of the General Statutes, as 
amended.

(37)



38

“ S ec . 2 . The Board shall consist of five mem­
bers appointed by the governing authority of 
the Town of Scotland Neck, and said five mem­
bers shall hold office until the next regular mu­
nicipal election of the Town of Scotland Neck 
to be held in May, 1971. At the regular election 
for Mayor and Commissioners of the Town of 
Scotland Neck to be held in May 1971, there 
shall be elected five members of the Board, and 
three persons so elected who receive the highest 
number of votes shall hold office for four years 
and the two persons elected who receive the 
next highest number of votes shall hold office for 
two years, and thereafter all members o f the 
Board so elected, as successors, shall hold office 
for four years. All members of the Board shall 
hold their offices until their successors are 
elected and qualified. All members o f the Board 
shall be eligible to hold public office as required 
by the Constitution and laws of the State.

“ S ec . 3. All members of the Board shall be 
elected by the qualified voters o f the Town of 
Scotland Neck and said election shall be held 
and conducted by the governing authority o f the 
Town of Scotland Neck and by its election offi­
cials and pursuant to the same laws, rules and 
regulations as are applicable to the election of 
the municipal officials o f the Town of Scotland 
Neck, and the results shall be certified in the 
same manner. The election o f members o f the 
Board shall be held at the same time and place 
as applicable to the election of the Mayor and 
Board of Commissioners o f the Town of Scot­
land Neck and in accordance with expiration 
o f terms of office of members of the Board. The 
members of the Board so elected shall be in­
ducted into office on the first Monday following 
the date of election, and the expense of th elec­
tion o f the members of the Board shall be paid 
by the Board.

“ S ec . 4. At the first meeting of the Board 
appointed as above set forth and of a new



39

Board elected as herein provided, the Board 
shall organize by electing one o f its members 
as chairman for a period of one year, or until 
his successor is elected and qualified. The chair­
man shall preside at the meetings o f the Board, 
and in the event of his absence or sickness, 
the Board may appoint one of its members as 
temporary chairman. The Scotland Neck City 
Superintendent o f Schools shall be ex officio 
secretary to his Board and shall keep the min­
utes o f the Board but shall have no vote. I f  
there exists a vacancy in the office o f Superin­
tendent, then the Board may appoint one of its 
members to serve temporarily as secretary to 
the Board. All vacancies in the membership of 
the Board by death, resignation, removal, 
change of residence or otherwise shall be filled 
by appointment by the governing authority of 
the Town of Scotland Neck of a person to serve 
for the unexpired term and until the next reg­
ular election for members of the Board when 
a successor shall be elected.

“ S ec . 5. All public school property, both real 
and personal, and all buildings, facilities, and 
equipment used for public school purposes, lo­
cated within the corporate limits of Scotland 
Neck and within the boundaries set forth in Sec­
tion 1 of this Act, and all records, books, mon­
eys budgeted for  said facilities, accounts, 
papers, documents and property of any descrip­
tion, shall become the property of Scotland 
Neck City Administrative Unit or the Board; 
all real estate belonging to the public schools 
located within the above-described boundaries 
is hereby granted, made over to, and automati­
cally by force of this Act conveyed to the Board 
from the County public school authorities. The 
Board of Education of Halifax County is author­
ized and directed to execute any and all deeds, 
bills of sale, assignments or other documents 
that may be necessary to completely vest title 
to all such property in the Board.



40

“ Sec. 6. Subject to the approval of the voters 
residing within the boundaries set forth in Sec­
tion 1 o f this Act, or within the corporate lim­
its of the Town of Scotland Neck, as herein­
after provided, the governing authority of the 
Town of Scotland Neck, in addition to all other 
taxes, is authorized and directed to levy annu­
ally a supplemental tax not to exceed F ifty 
Cents (500) on each One Hundred ($100.00) 
Dollars of the assessed value o f the real and 
personal property taxable in said Town of Scot­
land Neck. The amount or rate of said tax shall 
be determined by the Board and said tax shall 
be collected by the Tax Collector of the Town 
of Scotland Neck and paid to the Treasurer of 
the Board. The Board may use the proceeds of 
the tax so collected to supplement any object 
or item in the school budget as fixed by law or 
to supplement any object or item in the Cur­
rent Expense Fund or Capital Outlay Fund as 
fixed by law.

“ Sec. 7. Within ten days from the date of the 
ratification of this Act it shall be the duty of 
the governing authority of the Town of Scot­
land Neck to call a referendum or special elec­
tion upon the question of whether or not said 
Scotland Neck City Administrative Unit and 
its administrative board shall be established 
and whether or not the special tax herein pro­
vided shall be levied and collected for  the pur­
poses herein provided. The notice of the special 
election shall be published once a week for two 
successive weeks in some newspaper published 
in the Town of Scotland Neck or having a gen­
eral circulation in the Town of Scotland Neck. 
The notice shall contain a brief statement of 
the purpose of the special election, the area in 
which it shall be held, and that a vote by a 
majority o f those voting in favor of this Act 
will establish the Scotland Neck City Adminis­
trative Unit and its Administrative Board as



41

herein set forth, and that an annual tax not to 
exceed F ifty  Cents (500) on the assessed valu­
ation o f real and personal property, according 
to each One Hundred Dollars ($100.00) valua­
tion, the rate to be fixed by the Board, will be 
levied as a supplemental tax in the Town of 
Scotland Heck, for the purpose of supplement­
ing any lawful public school budgetary item. A  
new registration of voters shall not be required 
and in all respects the laws and regulations 
under which the municipal elections of the 
Town of Scotland Heck are held shall apply 
to said special election. The governing author­
ity of the Town of Scotland Heck shall have 
the authority to enact reasonable rules and 
regulations for the necessary election books, 
records and other documents for such special 
election and to fix the necessary details of said 
special election.

“ ■Sec. 8. In said referendum or special elec­
tion a ballot in form substantially as follows 
shall be used: V ote foe one :

( □ )  FOR creating and establishing Scot­
land Heck City Administrative Unit with 
administrative Board to operate public 
schools of said Unit and for supplemental 
tax not to exceed F ifty Cents (500) on the 
assessed valuation of real and personal 
property according to each One Hundred 
Dollars ($100.00) valuation for  objects of 
school budget.
( □ )  AGAIH ST creating and establishing 
Scotland Heck City Administrative Unit 
with administrative Board to operate pub­
lic schools of said Unit and against supple­
mental tax not to exceed F ifty Cents (500) 
on the assessed valuation of real and per­
sonal property according to each One Hun­
dred Dollars ($100.00) valuation for ob­
jects of school budget.



42

“ I f  a majority of the qualified voters voting 
at such referendum or special election vote in 
favor o f establishing Scotland Neck City Ad­
ministrative Unit, for creation of administra­
tive Board to operate public schools o f said 
Unit and for special supplemental tax as herein 
set forth, then this Act shall become effective 
and operative as to all its provisions upon the 
date said special election results are canvassed 
and the result judicially determined, otherwise 
to be null and void. The expense o f said refer­
endum or special election shall be paid by the 
governing authority of the Town o f Scotland 
Neck but if  said Unit and Board are estab­
lished, then said Town of Scotland Neck shall 
be reimbursed by the Board for said expense 
as soon as possible.

“ Sec. 9. All laws and clauses o f laws in con­
flict with this Act are hereby repealed.

“ Sec. 10. This Act shall be in full force and 
effect according to its provisions from and after 
its ratification.”



A p p e n d ix  C

ATTENDANCE Z0NE6 FOR BRAWLEY SCHOOL AND SCOTLAND NECK SCHOOL

(43)

U.S .  GOVERNMENT PRINTING OFFICE:  1971