Richmond Virginia School Board v Virginia Board of Education Amicus Curiae

    Nos. 72-549 and 72-550

Jn tfe $n$ nm  <3̂0urt uf the M nltd plates
O ctober T e r m , 1972

S ch o o l  B oard  of t h e  C it y  of R ic h m o n d , V ir g in ia ,
ET AL., PETITIONERS

V.

S t a t e  B oard  of E d u c a t io n  of  t h e  C o m m o n w e a l t h  of 
V ir g in ia , e t  a l .

C a r o l y n  B rad ley , e t  a l ., petitio n ers

v.
S t a t e  B oard  of E d u c a t io n  of t h e  C o m m o n w e a l t h  

o f  V ir g in ia , e t  a l .

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

MEMORANDUM FOR THE UNITED STATES AS AMICUS CURIAE

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

J. ST A N LE Y  POTTIN GER,
Assistant Attorney Oeneral,

A. R AYM O N D  RAN DOLPH, Jr.,
Assistant to the Solicitor General,

B R IA N  K. tA N D SB E R G ,
W A L T E R  W . B A R N E TT,
JOHN C. HOYLE,

Attorneys,
Department of Justice, 

Washington, D.C. 205S0.



I N D E X

Page
Interest of the United States___________________  1

I. Introductory statement____________________ 2
II. The remedial powers of a district court to 

dismantle a city’s dual school system do 
not, in the absence of an inter-system 
constitutional violation, extend to ordering 
the reformation of long standing, neutrally 
established school system boundary lines 
and the consolidation of city and county 
school systems__________________________  8

A. The Constitution requires that
Richmond’s dual school system be 
dismantled, but this mandate does 
not warrant requiring the city 
school system to be racially 
balanced as compared with the 
school systems of the surrounding 
counties________________________  9

B. The district court abused its dis­
cretion in requiring the reformation 
of long standing, neutrally estab­
lished school division lines in order
to achieve a “ viable racial mix’ ’ ____ 17

III. The record does not reflect any inter-system
constitutional violation_______________   21

Conclusion____________________________________  27

CITATIONS
Cases:

Alexander v. Holmes County Board of Educa­
tion, 396 U.S. 19________________________  2

Bell v. School, City of Gary, Indiana, 324 F. 2d
209, certiorari denied, 377 U.S. 924________  23

a)
499-515— 73------1



II

Cases—Continued ,
Boynton v. Virginia, 364 U.S. 454____________  24
Bradley v. School Board of the City of Richmond,

317 F 2d. 429____________________________ 3
Bradley v. School Board of the City of Rich­

mond, 345 F. 2d 310, vacated and remanded,
382 U.S. 103________ ____________________  3

Brown v. Board of Education, 347 U.S. 483___  2,
3, 9, 11,24

Brown v. Board of Education, 349 U.S. 294__ 2, 3
Brunson v. Board of Trustees of School District

No. 1, 429 F. 2d 820_____________________  11
Burton v. Wilmington Parking Authority, 365

U.S. 715________________________________  25
Cooper v. Aaron, 358 U.S. 1________________  2
Deal v. Cincinnati Board of Education, 419 F.

2d 1387_________________________________  23
Evans v. Abney, 396 U.S. 435_______________  25
Goss v. Board of Education, 373 U.S. 683____  2
Green v. County School Board of New Kent

County, 391 U.S. 430___________________ 2, 3, 10
Haney v. County Board of Education of Sevier

County, 429 F. 2d 364___________________  16
Jefferson v. Hackney, 406 U.S. 535__________ 22
Lochner v. New York, 198 U.S. 45___________ 12
Lombard v. Louisiana, 373 U.S. 267_________ 25
Loving v. Virginia, 388 U.S. 1______________  24
Mahan v. Howell, No. 71-364, decided Feb­

ruary 21, 1973----------------------------------------- 20, 23
Monroe v. Board of Commissioners, 391 U.S.

450_____________________________________ 3
Moose Lodge No. 107 v. Irvis, 407 U.S. 163__  25
NAACP v. Button, 371 U.S. 415____________  24
Raney v. Board of Education, 391 U.S. 443__  3
Robinson v. Florida, 378 U.S. 153___________ 25
San Antonio Independent School District v. 

Rodriguez, No. 71-1332, decided March 21,
1973 20, 26



Cases—Continued
Spencer v. Kugler, 404 U.S. 1027, affirming Page

326, F. Supp. 1235----------------------------------- 22, 23
Swann v. Board of Education, 402 U.S. 1___  2,

8, 9, 13, 14, 15, 19, 22, 25
United States v. Burr, 25 Fed. Cas. 30_____ 19
United States v. Scotland Neck Board of Educa­

tion, 407 U.S. 484_________    16
United States v. Texas, 321 F. Supp. 1043, 

affirmed, 447 F. 2d 441, certiorari denied 
sub nom. Edgar v. United States, 404 U.S.
1016------------------------------------------------------  16

Wright v. Council of City of Emporia, 407
U.S. 451-------------------------------------------------  2, 16

Wright v. Rockefeller, 376 U.S. 52_________  22
Constitution and statutes:

United States Constitution, Fourteenth
Amendment-------------------------------6, 10, 13, 18, 22

42 U.S.C. 1973____________________________ 25
42 U.S.C. 2000c-6____________________  1
42 U.S.C. 2000d____________________  1
42 U.S.C. 2000e_____________________  25
42 U.S.C. 2000h-2______________________  1
42 U.S.C. 3601-3619______________________  25
Virginia Fair Housing Law, Code of Virginia,

Title 36, Chapter 5_______________   25
Miscellaneous:

Bickel, The Supreme Court and the Idea of
Progress (1970)__________________________  11, 12

Goodman, De Facto School Segregation: A Con­
stitutional and Empirical Analysis, 60 Calif.
L. Rev. 275 (1972)______________________  11

McSweeney, Local Government Law in Virginia, 
1870-1970, 4 U. of Richmond L. Rev. 174
(1970)----------------------------------------------------  5

Mosteller and Moynihan, On Equality of 
Educational Opportunity (1972)___________  11



J it l l x t OJtrart 4  the United states
O ctober  T e r m , 1972

No. 72-549
S ch o o l  B oard  op t h e  C it y  op R ic h m o n d , V ir g in ia ,

ET AL., PETITIONERS 
V.

S t a t e  B oard op E d u c a t io n  of t h e  C o m m o n  w e a l t h  of 
V ir g in ia , et  a l .

No. 72-550
C a r o l y n  B r a d l e y , et  a l ., petitio n ers

v.
S tate  B oard op E d u c a t io n  of t h e  C o m m o n w e a l t h  

of V ir g in ia , et  a l .

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

MEMORANDUM FOR THE UNITED STATES AS AMICUS CURIAE

IN TE REST OE TH E U N ITED STATES

The United States has substantial responsibility 
under 42 U.S.C. 2000e-6, 2000d, and 2000h-2, with 
respect to school desegregation. This Court’s resolution 
of the issues presented in this ease will affect that en­
forcement responsibility. The United States partic­
ipated as amicus curiae in this case in the court of

(i)



appeals and has participated in this Court’s previous 
school desegregation cases, including Brown v. Board 
of Education, 347 U.S. 483; 349 U.S. 294; Cooper v. 
Aaron, 358 U.S. 1; Goss v. Board of Education, 373 
U.S. 683; Green v. County School Board of New Kent 
County, 391 U.S. 430; Alexander v. Holmes County 
Board of Education, 396 U.S. 19; Swann v. Board of 
Education, 402 U.S. 1; Wright v. Council of City of Em­
poria, 407 U.S. 451; Keyes v. School District No. 1, Den­
ver, Colorado, No. 71-507, this Term; and Norwood v. 
Harrison, No. 72-77, this Term.

I. INTRODUCTORY STATEMENT

The issue in this case in whether the district court, 
acting under this Court’s mandate “ to eliminate 
racially separate public schools established and main­
tained by state action,” 1 abused its remedial discretion 
by ordering the consolidation of a city school system 
and two surrounding county school systems in order 
to achieve a more uniform distribution of the races in 
the schools throughout the area, where each of the 
school systems had been operated as a dual, segregated 
system in the past, where each was assumed by the dis­
trict court to be now operating a unitary system 
within its boundaries (Pet. App. 238a), and where 
there is no evidence that the boundaries were estab­
lished on account of race.

Prior to Brown v. Board of Education, 347 U.S. 483, 
the school system in the City of Richmond, as well as 
the school systems throughout the Commonwealth of

1 Swann v. Board of Education, 402 U.S. 1, 5.



3

Virginia, were racially segregated (Pet. App. 189a). 
After Brown I  and Brown II ,2 state and local officials 
in Virginia used a variety of methods to resist desegre­
gating their schools (Pet. App. 313a).

This lawsuit began in 1961, when individual plain­
tiffs sued to require desegregation of the school system 
in the City of Richmond. In 1966, after protracted 
proceedings, the district court entered a decree order­
ing the Richmond school system to implement a “ free­
dom of choice” plan.3

The current phase of this litigation commenced on 
March 10,1970, with the filing by the plaintiffs of a mo­
tion for further relief on the basis of the 1968 decisions 
in Green v. County School Board, 391 U.S. 430, and its 
companion cases,4 holding that freedom-of-choice pro­
grams that fail to bring about desegregation are consti­
tutionally inadequate remedial measures. The Richmond 
School Board “ admitted that their freedom of choice 
plan, although operating in accordance with [the 
district court’s] order of March 30, 1966, was operat­
ing in a manner contrary to constitutional require­
ments” (Pet. App. 2a) and proposed two desegrega­
tion plans for the City schools,, the second o f which 
the court adopted on an interim basis for the 1970- 
1971 school year (Pet. App. 40a-41a, 182a). The plain­

2 Brown v. Board of Education. 349 U.S. 294.
3 See Bradley v. School Board of the City of Richmond, 317 

F. 2d 429 (C.A. 4 ); Bradley v. School Board of the City of 
Richmond, 345 F. 2d 310 (C.A. 4), vacated and remanded, 382 
U.S. 103; see also the August 17, 1970, opinion of the district 
court below, at Pet. App. la.

4 Raney v. Board of Education, 391 U.S. 443; Monroe v. 
Board of Commissioners, 391 U.S. 450.



4

tiffs had also proposed their own plan, involving zon­
ing and pairing within the Richmond school system 
(Pet. App. 24a). The district court found that this 
plan could not be implemented in time for the upcom­
ing school year, but “ would, if adopted, create a uni­
tary system,” and that the plan “may well not only 
create a unitary system, but do much toward the 
thwarting of resegregation of schools once the unitary 
system has been put into effect” (Pet. App. 41a). The 
court also found that “ there is no intractible remnant 
of segregation in the City of Richmond school sys­
tem * * *”  (ibid.).

In April 1971, after further hearings, the district 
court ordered the Richmond school system to operate 
under a new plan, designated Plan III , for the 1971- 
1972 school year (Pet. App. 110a-155a). Plan I I I  had 
been proposed by the Richmond School Board (Pet. 
App. 111a, 119a) as an alternative to the plan earlier 
suggested by plaintiffs. Since in the court’s view “ either 
plan would fulfill the School Board’s legal duty”  
(Pet. App. 146a), the court deferred to the School 
Board’s proposal. The court concluded that when im­
plemented, Plan I I I  would eliminate “ the racial iden- 
tifiability of each facility to the extent feasible within 
the City of Richmond”  (Pet. App. 121a; 325 F. Supp. 
828, 835).6

Under Plan III , the racial composition of high 
schools in Richmond would range from 57 percent 
black and 43 percent white to 79 percent black and 5

5 In regard to the present status of the Chesterfield and Hen­
rico County school systems, which surround Richmond, see n. 8, 
infra.



21 percent white; middle schools would range from 
39 percent black and 61 percent white to 81 percent 
black and 19 percent white; and elementary schools 
would range from 34 percent black and 66 percent 
white to 80 percent black and 20 percent white (Pet. 
App. 142a-144a). For the 1971-1972 school year, the 
racial composition of the student population of the 
Richmond school system as a whole was 69 percent 
black and 31 percent white, with 29,750 black students 
and 13,500 white students (Pet. App. 417a). The Rich­
mond school system operated under Plan I I I  in 1971- 
1972 and has continued to do so (Pet. App. 564a).

On July 6, 1970, nearly one year before the court 
adopted Plan III , the district judge wrote to counsel 
for the plaintiffs suggesting that “ It may be that it would 
be appropriate for the defendant school board to dis­
cuss with the appropriate officers of the contiguous 
counties as to the feasibility or possibility of consoli­
dation of school districts * * *”  (Pet. App. 83a-84a). 
The counties referred to are Chesterfield and Henrico, 
which lie on the boundaries of the City of Richmond.0 
Each of these counties had a student population that 
was more than 90 percent white in the 1970-1971 
school year (Pet. App. 566a). In 1971-1972, Chester­
field County enrolled 21,588 white and 2,166 black 
students (Pet. App. 418a); during the same period 6

6 In Virginia, cities are completely independent from counties; 
cities have territorial exclusivity and integrity and their taxing 
jurisdiction does not overlap with that of the neighboring coun­
ties. See MeSweeney, Local Government Law in Virginia, 1870- 
1970, 4 U. of Richmond L. Rev. 174, 177 (1970).

499-515- -2



6

Henrico County had 31,299 white and 3,018 black 
students (Pet. App. 417a).

On December 5, 1970, the district court granted the 
motion of the Richmond School Board (App. 90a-97a) 
to join, as parties defendant, the School Boards and 
Boards of Supervisors o f Chesterfield and Henrico 
Counties (Pet. App. 184a; 51 F.R.D. 139).7 Late in 
the summer of 1971 the court began hearings on the 
Richmond School Board’s complaint that Chesterfield 
and Henrico Counties had failed to assist Richmond in 
the desegregation of the Richmond metropolitan area 
schools and that the Fourteenth Amendment required 
a “ unitary public school system which reasonably re­
flects the racial composition of the City of Richmond 
and the Counties of Henrico and Chesterfield * * * ” 
(App. 94a).

On January 10, 1972, the court fashioned new relief 
in this case by ordering the consolidation of the school 
systems of the City of Richmond and Chesterfield and 
Henrico Counties into a single, combined school dis­
trict, resulting in a population of 65 percent white and 
35 percent black students (Pet. App. 417a-418a). Un­
der tlie consolidation plan, which has not been imple­
mented, the area would be divided into six geograph­
ical subdivisions, five of which would emanate from 
the center of Richmond to the outlying Counties 
roughly like wedges of a pie, thus bringing together 
within school attendance zones areas of the black in­
ner City and the white suburban Counties (Ex. App.

7 The court also ordered the joinder of the State Board of 
Education and the State Superintendent of Public Instruction.



7

27e-33e). The result would be that nearly all black 
students in the region would attend schools that are 20 
to 40 percent black (Pet. App. 570a).

The court of appeals reversed the district court’s 
order requiring consolidation of the three school 
systems8 on the ground that the district court had 
improperly compelled “ one of the States of the Union 
to restructure its internal government for the purpose 
of achieving racial balance in the assignment of pupils 
to the public schools”  (Pet. App. 562a).

In analyzing the questions presented by this case, 
it is first necessary to determine what particular con­
stitutional violation or violations, if any, are present. 
I f  the only violation is the operation of a dual school 
system within the City of Richmond, we believe that 
the court is limited in its remedial powers to fashion­
ing relief within the boundaries of the City school 
system. If, on the other hand, there is also an inter­
system violation—that is, a constitutional violation 
that in some manner involves two or more of the 
school systems—a remedy tailored to eliminate that 
violation should also be fashioned. In this case, how­
ever, the record does not reveal an inter-system 
violation and we therefore conclude that the dis­
trict court exceeded its remedial powers in ordering 
consolidation.

8 The court of appeals found that the Chesterfield and Hen­
rico County school systems, which surround Richmond, have 
undergone a transformation from de jure segregation to a 
unitary system within each county (Pet. App. 571a-572a).



8

II. THE REMEDIAL POWERS OF A DISTRICT COURT TO DIS­
MANTLE A CITY’S DUAL SCHOOL SYSTEM DO NOT, IN 
THE ABSENCE OF AN INTER-SYSTEM CONSTITUTIONAL 
VIOLATION, EXTEND TO ORDERING THE REFORMATION OF 
LONG STANDING, NEUTRALLY ESTABLISHED SCHOOL SYS­
TEM BOUNDARY LINES AND THE CONSOLIDATION OF CITY 
AND COUNTY SCHOOL SYSTEMS

It is not disputed here that in the past the school 
system of the City of Richmond was de jure segre­
gated and that the City’s school authorities have an 
affirmative duty to dismantle that dual school system. 
Swann v. Board of Education, 402 U.S. 1. The ques­
tion now presented concerns the remedial powers of a 
federal court in fashioning relief to insure the dis­
mantling of such a system.

With respect to the basis for its order, the district 
court concluded in its lengthy opinion (Pet. App. 
164a-520a) that the previously dual school system 
of the City o f Richmond cannot be desegregated unless 
it is consolidated with the school systems of Chester­
field County and Plenrico County, even if each school 
system were “ legally now unitary within itself”  (Pet. 
App. 238a). The court apparently reached this con­
clusion, which is contrary to the court’s earlier find­
ings (Pet. App. 24a, 121a; see p. 4, supra), on two 
grounds: (1) that the racial composition of the school 
system of the City of Richmond, when compared 
with the school systems of the two surrounding Coun­
ties, is disproportionately black, thus resulting in 
racially identifiable school systems ( e . g Pet. App. 
186a, 188a, 201a, 208a-210a, 230a, 237a-238a); and 
(2) that, in the court’s view, it was necessary to



9

bring more white students into the school system of 
the City of Richmond in order to achieve a “ viable 
racial mix” and, hence, more stable desegregation 
( e.g., Pet. App. 200a, 207a, 230a, 237a, 238a, 416a- 
418a, 437a-440a, 444a-445a, 519a).9 In our view, neither 
ground justifies the relief granted by the district court; 
nor, for the reasons stated in point III , infra, is similar 
relief warranted here on the basis of any inter-system 
constitutional violation.

A . T H E  CON STITU TION  REQUIRES T H A T  R ICH M O N D ’ S DUAL SCHOOL 

SYSTEM  BE DISM AN TLED, BUT T H IS  M AN DATE DOES NOT W AR R AN T 

REQUIRING T H E  C IT Y  SCHOOL SYSTEM  TO BE R AC IA LLY BALANCED 

AS COMPARED W IT H  T H E  SCHOOL SYSTEMS OF T H E  SURROUNDING 

COUNTIES

A school system that has operated in the past as a 
dual system, with one set of schools for white children 
and another for blacks, has a constitutional obligation 
totally to eliminate such racial discrimination from 
its schools and to achieve a unitary system. “ The con­
stant theme and thrust of every holding from Brown 
I  to date is that state-enforced separation of races 
in public schools is discrimination that violates the 
Equal Protection Clause. The remedy commanded was 
to dismantle dual systems.” Sivann v. Board of Educa­
tion, supra, 402 U.S. at 22. Thus, “ School boards * * * 
operating state-compelled dual systems were * * * 
clearly charged with the affirmative duty to take what­

9 The court said that it did not intend “to require a particular 
degree of racial balance or mixing” and would allow devi­
ations from the “ viable racial mix contemplated by the [con­
solidation] plan” if they appeared appropriate (Pet. App.. 
519a-520a).



1 0

ever steps might be necessary to convert to a unitary 
system in which racial discrimination would be elimi­
nated root and branch.”  Green v. County School 
Board, 391 TT.S. 430, 437-438.

The Richmond public school system, like other 
public school systems in the Commonwealth of V ir­
ginia, is operated, maintained and supervised by the 
local school board (Pet. App. 576a). In the past the 
Richmond School Board operated a dual school sys­
tem. The purpose of this lawsuit, originally instituted 
in 1961, is to require the Richmond School Board to 
dismantle that dual system in accordance with the 
decisions of this Court, which require that the City 
school system operate not white schools or black 
schools, but “ just schools.” Green v. County School 
Board, supra, 391 U.S. at 442. And as the district 
court itself found at one point (see p. 4, supra), it 
appears that successful implementation of Plan I I I  
will achieve that result with respect to the Richmond 
school system.

Nevertheless, the district court ordered consolida­
tion of the Richmond school system with the school 
systems of Henrico and Chesterfield Counties. The 
court assumed that if each of the three school systems 
were considered separately, each would be operating 
a unitary system in compliance with the mandates of 
this Court (Pet. App. 238a), but it held that the con­
version of these three formerly dual school systems 
into three separate unitary school systems would not 
be enough to satisfy the requirements of the Four­
teenth Amendment.



11

Tlie opinion of the district court and the record 
suggest a number of different sources from which the 
court derived this affirmative duty to consolidate school 
systems. First, the view not infrequently expressed in 
the expert testimony upon which the court relied is 
that it is harmful for blacks to go to school in pre­
dominantly black schools (e.g., App. 263a-365a [Dr. 
Thomas Pettigrew], 194a-264a [Dr. Thomas C. Lit­
tle] ; Pet. App. 186a-190a, 197a-200a, 477a-478a). But 
while this is so with respect to state-segregated schools 
(see Brown v. Board of Education, 347 U.S. 483, 494), 
it does not readily follow that blacks attending pre­
dominantly black schools operated by a neutrally- 
established predominantly black school system experi­
ence this haring 10 particularly in a situation such as 
that present here, where one of the most recent actions 
of local authorities was to bring more than 8000 addi­
tional students into the system, 98 percent of whom were 
white (Pet. App. 178a) ; at the least, expert opinion is 
divided on this question.11 Moreover, wTe deal here with 
a constitutional issue—whether legislative authorities 
are to be foreclosed from making their own choices

10 See Brunson v. Board of Trustees of School District No. 1, 
429 F. 2d 820, 824, 826 (C.A. 4) (Sobeloff, J., concurring, re­
jecting the theories of Dr. Pettigrew, one of plantiffs’ principal 
expert witnesses).

11 See the authorities discussed in Goodman, DeFacto School 
Segregation: A  Constitutional and Empirical Analysis, 60 Calif. 
L. Ker. 275, 308-310, 336-338 (1972), and Bickel, The Supreme 
Court and the Idea of Progress 138-141 (1970); Cf. Mosteller 
and Moynihan, On Equality of Educational Opportunity 6-7 
(1972); see also Pet. App. 452a, summarizing the testimony of 
Dr. Hooker, and note 10, supra.



1 2

among the various educational and sociological theories 
involved. Though the Fourteenth Amendment does for­
bid racial classifications, i^neither “ enact[s] Mr. Her­
bert Spencer’s Social Statics,”  Lochner v. New York, 
198 U.S. 45, 75 (Holmes, J., dissenting), nor does it pre­
scribe the internal reorganization of states to serve so­
ciological theories.

Another possible basis for the district court’s deci­
sion is the view that there are generally educational 
and administrative advantages in having larger school 
systems (■e . g Pet. App. 271a-281a), a view apparently 
supported by “ the established policy of the [State] 
Board [o f Education] to recommend larger units of 
administration” {id. at 272a). Whatever may be the 
desirability of centralization of school administration 
as a matter of social or legislative policy,12 however, 
there is nothing inherently unconstitutional about 
having different school systems serving different geo­
graphical areas separated by boundary lines that have 
not been drawn on account of race. Of course, as a 
school district’s boundaries are expanded to eneom-

12 Consolidation and centralization are, of course, not univer­
sally endorsed by those in this field. See Bickel. supra, note 11, at 
140-141. A  preference for local control of school policies and 
administration within the confines of governmental units bearing 
the requisite fiscal and budgetary responsibility, rather than 
mere adherence to political subdivision lines for their own sake, 
is a principal countervailing consideration (see p. 20, infra, and 
n. 19, inf ra) . This was ignored in the district court’s statement that, 
on the basis o f what it regarded as “ the insubstantiality of nonra- 
cial reasons for adhering to political subdivision boundaries as at­
tendance limits,” it inferred “that insistence on such a policy 
must be predicted on its known racial effects’) ( Pei . App. 258a),



13

pass larger areas and hence more people, the school 
district’s population tends to reflect the racial mix of 
the population of the surrounding region. But with 
respect to school systems, the Fourteenth Amendment 
does not prefer centralization and consolidation over 
more localized control and it does not require a State 
to have only one school system for its entire popula­
tion, even if state boundaries are the logical stopping- 
points in the consolidation process.

In determining that one school system for the entire 
region should be created, the district court relied upon 
(Pet. App. 187a) this Court’s statement in Swann, 
supra, 402 U.S. at 26, that for remedial purposes, 
there is “ a presumption against schools that are sub­
stantially disproportionate in their racial composi­
tion.”  But disproportionate in relation to what? 
Surely not to some absolute standard, for the Consti­
tution does not establish any fixed ratio of black stu­
dents to white students that must be achieved. Instead, 
whether a particular school is racially imbalanced or 
identifiable can be determined only by comparing it 
with “ the racial composition of the whole school 
system.”  Swann v. Board of Education, supra, 402 
U.S. at 25; see also id. at 24.

Thus, the question whether, for example, an ele­
mentary school having a student body 70 percent black 
and 30 percent white is racially imbalanced or has 
a substantially disproportionate racial composition is 
in itself unanswerable. Some frame of reference is 
needed and, as Swann indicates, the proper compari­



14

son (to the extent that racial balance is relevant) is 
with the racial composition of the population in the 
school system operating the particular school since 
the purpose is to ensure complete elimination of the 
dual system by having one set of schools for both 
blacks and whites. And under Swann there would 
be no presumption against schools, such as the one in 
the example above, if these schools reflected the black- 
white ratio of the entire school system. 402 T7.S. at 
25-26.

Why then would there be a presumption against 
the school system itself with the same 70:30 ratio 
of blacks to whites, as the district court concluded 
here with respect to the school system of the City of 
Richmond? (Pet. App. 186a-188a.) Stated differently, 
on what basis could the district court conclude that 
its remedy should reach outside the school system of 
the City of Richmond ? Apparently, the court believed 
that it must look beyond the Richmond system in 
fashioning relief because the City school system is 
racially disproportionate or imbalanced in relation 
to the adjacent County school systems, thereby result­
ing in racial identinability of the three systems (e.g., 
Pet. App. 185a-187a, 230a, 237a-238a). But the court 
had to look beyond the Richmond system and compare 
it with the surrounding Counties in the first place 
in order to determine whether the Richmond system 
is racially imbalanced in comparison with the adjacent 
systems. This is not only circular as a reason for



As t h i s  C ou rt h e ld  in  Swann, " th e  n a tu re  o f  th e  v i o ­

la

fashioning relief beyond the Richmond system,13 but also 
heedless of the extent of the constitutional violation h-e i rvrj 
remedied.
latiSn determines the scope of the remedy.”  402 U.S. 
at 16. Here the school children of Richmond were not
racially segregated from the school children of Hen­
rico or Chesterfield Counties (see point III , infra). 
The district court was therefore required, in devising 
a desegregation plan for the Richmond system, to or­
der a remedy for implementation within that system 
and not beyond. That was the frame of reference for 
determining whether the Richmond school system had 
violated the Constitution and it likewise delineated 
the permissible extent of relief. Having found that the 
Richmond system was not in compliance with consti­
tutional requirements, the court had a duty to correct 
“ the condition that offends the Constitution,” Swann 
v. Board of Education, supra, 402 U.S. at 16, not a 
commission to act more generally as a problem-solver 
implementing programs and policies (contrary to state 
law) that some might find enlightened or desirable.

The district court’s ruling to the contrary obscures 
the distinction between requiring the dismantling of a 
dual school system and requiring a particular racial

13 Of course, where the issue is whether there has been an 
inter-system violation, such as racial discrimination in the es­
tablishment of school district lines, the scope of the inquiry 
necessarily extends beyond the confines o f a single system. See, 
e.y., the cases cited in n. 14, infra.



16

mix for the school system as a whole, as consideration 
of this Court’s recent decisions in Wright v. Council 
of City of Emporia, 407 U.S. 451, and United States v. 
Scotland Neck Board of Education, 407 U.S. 484, illus­
trates. In both Wright and Scotland Neck, newly drawn 
(or newly implemented, in the Wright case) school sys­
tem boundary lines would have had the effect of im­
peding desegregation of a dual school system. As the 
Court explained in Wright, the city was properly en­
joined from withdrawing from the joint city-county 
school system because “ [t] he court’s remedial power was 
invoked on the basis of a finding that the dual school 
system violated the Constitution, and since the city 
and county constituted but one unit for the purpose 
of student assignments during the entire time that the 
dual system was maintained, they were properly 
treated as a single unit for the purpose of dismantling 
that system.”  407 U.S. at 459-460.14

Here by contrast there is no history comparable to 
that in Wright of the City and either of the Counties 
constituting one school system during the period when 
dual systems were operated. Instead, these boundary 
lines were neutrally established, without regard to 
race, and have been coterminous with the political su'b-

14 Federal courts have also properly enjoined the maintenance 
of separate small black school districts that were created “to 
reflect racial separation by schools” and ordered consolidation 

r W%/ s 'o i  these districts with neighbor^eed white districts. E.g., Haney v. 
^ C o u n t y  Board of Education of Sevier County, 429 F. 2d. 364, 

366 (C.A. 8 ); United States v. Texas, 321 F. Supp. 1043 (E.D., 
Texas), affirmed, 447 F. 2d 441 (C.A. 5), certiorari denied sub 
nom. Edgar v. United States, 404 U.S. 1016.



17

divisions of the City of Richmond and the Counties 
of Chesterfield and Henrico for more than 100 years 
(Pet. App. 571a).5 * * * Indeed the court of appeals here 
“ searched the 325-page opinion of the district court 
in vain for the slightest scintilla of evidence that the 
boundary lines of the three local governmental units 
have been maintined either long ago or recently for 
the purpose of perpetuating racial discrimination in 
the public schools”  (Pet. App. 571a).

Thus, in our view, when the Richmond school sys­
tem has achieved a unitary system within its own neu­
trally established boundaries it has complied with the 
constitutional requirement that it dismantle its dual 
school system.

B. TH E  DISTRICT COURT ABUSED ITS DISCRETION IN  REQUIRING TH E
KEFORMATIcP’ o E LONG STAN DIN G, N EU TRALLY ESTABLISHED SCHOOL
DIVISION LIN ES I N  ORDER TO ACH IEVE A a VIABLE RACIAL M i x ”

The district court also believed that the school sys­
tem of the City of Richmond could not become a 
unitary system within its boundaries because a “ viable 
racial m ix”  would not be possible in light of the 
racial composition of Richmond’s population (Pet. 
App. 207a, 420a, 519a; see, e.g., id. at 201a, 230a, 
237a-238a, 436a-442a, 444a). The court pointed to 
evidence that the current proportion of blacks to 
whites in the Richmond school system had resulted in

5 The only change in these boundary lines occurred when the
City annexed some of the land in the two Counties. This re­
cent annexation added some 8,000 pupils to the Richmond sys­
tem, of whom 98 percent were white (Pet. App. I77a-l78a).



IS

whites leaving Richmond’s public schools and that un­
less the trend were reversed, the City’s schools might 
become all black.16

The duty of the district court in this case was to 
ensure that the Richmond school system converted to 
a unitary system. And as we have discussed, see pp. 
11-17, supra, as long as the school authorities operate 
just schools instead of one set of schools for blacks 
and another for whites, it matters not at all whether 
the system has more black students than white stu­
dents or vice-versa. The schools of Vermont are 
not segregated even though most of them are all white. 
Under the district court’s theory and its consolida­
tion order, which would reverse the racial composition 
of the Richmond schools from majority black to ma­
jority white, the apparent goal is to have a school sys­
tem with substantially more white children than black 
children. But the Fourteenth Amendment does not 
prefer predominantly white school systems over pre­
dominantly black school systems and it does not sanc­

16 The district court stated: “The term ‘viable racial mix’ 
was defined by Dr. Little as ‘It is a racial mix that is well 
enough established that it will continue to prosper. It will be 
a desirable, reasonable, mix for educational purposes * * *’ ” (Pet. 
App. 420a n. 22). The court apparently relied heavily upon the tes­
timony of an expert witness, Dr. Pettigrew, that in order to 
achieve “ integration” the racial composition of each school 
should be between 20 percent and 40 percent black, and re­
jected the testimony of another expert witness, Dr. Hooker, 
that the idea that blacks must always be in the minority in 
each school is a racist proposal. See Pet. App. 567a-570a. (Dr. 
Pettigrew agreed, however, that under Plan II I  the Richmond 
school system was “desegregated” (App. 321a).)



19

tion the district court’s transforming its preferences 
in this regard into a constitutional command.

We o f course agree that the federal courts have 
wide discretion to bring about unitary school systems. 
But as Chief Justice Marshall stated long ago, to say 
that the matter is within a court’s discretion means 
that it is addressed not to the court’s “ inclination, but 
to its judgment; and its judgment is to be guided by 
sound legal principles. ” 17 The purpose of a court- 
ordered remedy in these cases is to cure the violation, 
to correct “ the condition that offends the Constitu­
tion.” Swann v. Board of Education, supra, 402 IT.S. 
at 16. Yet here the district court, instead of ordering 
relief within the bounds of Richmond’s constitutional 
violation, went far beyond in the hope of forestalling 
the result of a possible migration of whites from the 
City, a result not in itself unconstitutional but thought 
by the district court to be undesirable.

I f  a certain desegregation plan would become inef­
fective shortly after implementation this is certainly 
something the district court should consider. Surely it 
would have been proper in this case for the district 
court to seek a remedy within the Richmond system 
that promised maximum stability.18 But the desire to

17 United States v. Burr, 25 Fed. Cas. 30, 35 (Fo. 14,692d, 
1807).

1S Indeed at one point in the present litigation the district 
court found that a plan analogous to Plan 111 “may well not 
only create a unitary system, but do much toward the thwarting 
of resegregation of schools once the unitary system has been 
put into effect” (Pet. App. 41a).



2 0

preserve the existing racial character of the City of 
Richmond or of its school system is not of constitu­
tional dimensions and does not warrant including 
within the scope of relief other school systems that are 
uninvolved in Richmond’s violation. Petitioners may 
prefer a consolidated school system with a large, stable 
white enrollment; the Constitution does not.

Moreover, as against petitioners’ desires in this re­
gard, there is a legitimate interest—recognized by this 
Court in an analogous context—in maintaining the 
integrity of the existing, neutrally established political 
boundaries between the City o f Richmond and the sur­
rounding Counties since disregard of these bound­
aries may substantially impair the normal functioning 
of local government. Mahan v. Howell, No. 71-364, 
decided February 21, 1973, slip op. at 7. As the court 
of appeals concluded, the district court’s consolidation 
order gives rise to “ practicalities of budgeting and 
financing that boggle the mind. Each of the three po­
litical subdivisions involved here has a separate tax 
base and a separate and distinct electorate. The school 
board of the consolidated district would have to look 
to three separate governing bodies for approval and 
support of school budgets” (Pet, App. 578a). Cf. San 
Antonio Independent School District v. Rodriguez, 
No. 71-1332, decided March 21,1973, slip op. at 49-50.19

19 In Rodriguez this Court also pointed out that (slip op. at 
45-46) :

“ I he persistence of attachment to government at the lowest 
level where education is concerned reflects the depth of commit­
ment of its supporters. In part, local control means, as Profes-



2 1

Thus, we believe the court of appeals properly con­
cluded that since the constitutional violation was the 
operation of a dual school system within the bounds 
of the City of Richmond, the proper remedy is to as­
sure that that system is effectively replaced with a uni­
tary school system within the City. The district court 
therefore exceeded the proper bounds of its remedial 
discretion in ordering the reformation of long stand­
ing, neutrality established school division boundary 
lines in order to achieve what is considered to be a 
more “ viable racial mix.”

III. THE RECORD DOES NOT REFLECT ANY INTERSYSTEM 
CONSTITUTIONAL VIOLATION

To conclude that the remedial power of the district 
court to dismantle Richmond’s dual school system was 
limited to fashioning a remedy within long standing, 
neutrally established school system boundary lines 
does not, however, end the inquiry in this case. The 
court of appeals also carefully considered whether 
there was any constitutional violation involving more 
than one school system, and concluded there was not 
(Pet. App. 572a; see also amended complaints at App. 
99a, 721a).

sor Coleman suggests, the freedom to devote more money to the 
education of one’s children. Equally important, however, is the 
opportunity it offers for participation in the decision-making 
process that determines how those local tax dollars will be 
spent. Each locality is free to tailor local programs to local 
needs. Pluralism also affords some opportunity for experimenta­
tion, innovation, and a healthy competition for educational ex­
cellence. An analogy to the Nation-State relationship in our 
federal system seems uniquely appropriate. * * *”



2 2

While it is difficult to determine the extent to which 
the district court found an inter-system, as distin­
guished from an intra-system, violation in this case, 
the court of appeals stated specifically that it found no 
inter-system violation because there had been “ no 
joint interaction between any two of the units in­
volved” or any action by higher state officials “ for the 
purpose of keeping one unit relatively white by con­
fining blacks to another” (Pet. App. 572a). We agree 
that the record does not support a finding that the 
State’s maintenance of the three separate systems 
constituted an invidious racial classification.

The mere existence of long-standing, neutrally es­
tablished governmental lines separating the now pre­
dominantly black City of Richmond from the pre­
dominantly white suburban Counties of Chesterfield 
and Henrico is not, by itself, an invidious racial clas­
sification. Cf. Wright v. Rockefeller, 376 U.S. 52; Jeffer-, 
son v. Hackney, 406 TT.S. 535. Nor does the Equal Pro­
tection Clause require racial balance between separate 
school systems in a single State.20 Spencer v. Kugler, 
404 U.S. 1027, affirming 326 F. Supp. 1235 (D.N.J.).

In Spencer this Court affirmed the district court’s 
decision that, at least in States not recently op­
erating dual school systems, extreme racial imbal-

20 Indeed, the Constitution does not necessarily require ra­
cial balance in schools in a single school district, even if that 
district was formerly dual. See Swann v. Board o f Education, 
supra, 402 U.S. at 24 (“ The constitutional command to deseg­
regate schools does not mean that every school in every com­
munity must always reflect the racial composition of the school 
system as a whole.” ).



23

ance, without more, does not require neutrally estab­
lished sehool district boundary lines to be revised. 326 
F. Supp. at 1243. If, as we have suggested above, pp. 
9—21, supra, the operation of a dual school system 
normally constitutes an intra-system violation to be 
remedied within the confines of the system, Spencer 
applies as well in States where dual systems recently 
existed. In the absence of any independent proof of 
inter-system discrimination, the three school systems 
in this case, in their relationship with the State and with 
each other, stand on no different footing than the 
racially disparate systems in Spencer.

The question, then, is what if any independent proof 
of inter-system discrimination exists here. That ques­
tion can be approached in much the same manner as 
the question of de jure segregation within a sehool sys­
tem where State law has not required segregation. Cf. 
Keyes v. School District No. 1, ISTo. 71-501 (argued 
October 12,1972). Just as neutrally drawn, long-stand­
ing neighborhood zone lines are presumptively non- 
discriminatory,21 so also, in our view, are neutrally 
drawn long standing district lines. Cf. Mahan v. Howell, 
supra.22

Petitioners rely primarily on evidence of .housing 
discrimination and of various kinds of either intra­
system or state-wide racial discrimination to overcome

21 See Deal v. Cincinnati Board of Education, 419 F. 2d 1387, 
1393 (C.A. 6 ); Bell v. School City of Gary, Indiana, 324 F. 2d 209 
( C.A. 7), certiorari denied, 377 U.S. 924.

22 Of course, school district lines that were used as the instru­
ments of racial segregation of the schools are not “neutrally 
drawn.”  See the cases cited in note 14, supra.



24

this presumption.23 The housing pattern in the Rich­
mond metropolitan area is similar to that found in 
most metropolitan areas of this country. The inner city 
has a large black population and the surrounding sub­
urbs are primarily white. While the causes of this 
housing pattern are manifold, the court of appeals ac­
cepted the contention “ that within the City of Rich­
mond there has been state (also federal) action tend­
ing to perpetuate apartheid of the races in ghetto pat­
terns throughout the city, and that there has been state 
action within the adjoining counties also tending to 
restrict and control the housing location of black 
residents” (Pet. App. 572a).

Other acts cited as establishing an inter-system 
violation are Virginia’s “ massive resistance” cam­
paign against school desegregation (Pet. App. 313), 
various types of delaying actions undertaken to resist 
desegregation of the Richmond schools (Pet. App. 
189a), actions by state officials tending to reinforce 
racism (Pet. App. 189a), construction of racially 
identifiable schools after Brown I  (Pet. App. 287a), 
discrimination in public employment in Henrico and 
Chesterfield Counties (Pet. App. 510a), lack of public 
transportation for poor persons (Pet. App. 514a), 
past state restrictions on inter-racial contacts of var­
ious kinds,24 and state approval of school construction

23 They also mention past instances of transportation of black 
students across school division lines in the State in order to per­
petuate state-enforced segregation of schools (Pet. App. 360a; cf. 
id. at 388a). See p. 26, inf ra.

24 See, e.g., Boynton v. Virginia. 364 IT.S. 454; Loving v. 
Virginia, 388 U.S. 1; NAAC'P v. Button, 371 U.S. 415.



sites without regard to the impact on school desegre­
gation (Pet. App. 206a).

Such acts are a shameful part of our history, and 
the Nation has in recent years enacted laws to remedy 
many of them. See, e.g., 42 U.S.C. 1973 (voting), 2000e 
(employment), and 3601-3619 (housing). See also the 
Virginia Fair Housing Law, enacted in 1972, Code of 
Virginia, Title 36, Chapter 5. But even if some or all 
of these acts, including participation in residential 
housing discrimination, have contributed in some degree 
to the present racial composition of the public schools 
in the three school systems within the metropolitan 
Richmond area, the question remains whether there 
is a sufficiently proximate and substantially causal re­
lationship to the racial disparity between school sys­
tems to warrant a conclusion that state-enforced racial 
discrimination in the public schools has resulted.25

Racial discrimination in such areas as housing, 
employment, and public expenditures are serious 
problems that must be attacked directly so that they 
can be eliminated from our society. But as this Court 
said in Swann, supra, 402 U.S. at 22-23:

The elimination of racial discrimination in
public schools is a large task and one that

25 The past existence of state-imposed discrimination, includ­
ing school segregation, might, for example, also have con­
tributed in some degree to decisions by individuals to dis­
criminate in their social relationships, but this does not in 
itself necessarily convert what would otherwise be private discrim­
ination into state action. Compare Moose Lodge No. 107 v. Irvis 
407 U.S. 163, and Evans v. Abney, 396 U.S, 435, with Lombard v. 
Louisiana, 373 U.S. 267. Robinson v. Florida, 378 U.S. 153, and 
Burton v. Wilmington Parking Authority, 365 U.S. 715.



26

should not be retarded by efforts to achieve 
broader purposes lying beyond the jurisdiction 
of school authorities. One vehicle can carry 
only a limited amount of baggage. It would 
not serve the important objective of Brown I  
to seek to use school desegregation cases for 
purposes beyond their scope although desegre­
gation of schools'ultimately will have impact 
on other forms of discrimination.

In our view, this case does not present sufficient 
evidence to warrant a finding that invidious state 
action has caused racial discrimination among the 
three school systems involved here. But if any inter- 
system violations are found we believe that, rather 
than utilizing the “ broad brush”  approach of re­
quiring consolidation of separate school systems, any 
relief beyond the boundaries of the Richmond system 
should be tailored to fit the particular violation.

Thus, if  state-imposed segregation between neigh­
boring schools across school system lines is found, a 
desegregation plan between those schools might be 
warranted. I f  particular blacks are denied non-dis- 
criminatory access to housing in a particular resi­
dential area, the court might require that their chil­
dren be given access to the schools in that area, or, 
more to the point, the court should join those respon­
sible for housing discrimination and provide appro­
priate relief against them. I f  there is proof of an in­
ferior curriculum or racially discriminatory alloca­
tion of funds or resources among the systems, there 
may be specific relief available hi that area also. Cf. 
San Antonio Independent School District v. Rodrigues,



27

supra, slip op. at 51. But in none of the foregoing ex­
amples would the drastic remedy of consolida­
tion of the separate school systems be required. And the 
present record in this case supports the conclusion of the 
court of appeals that “ it is not established that the racial 
composition of the schools in the City of Richmond 
and the counties is the result of invidious state ac­
tion * * * ” (Pet. App. 582a-583a).

CONCLUSION

For the reasons stated above, the judgment of the 
court of appeals should be affirmed.

E r w in  N . G r isw o l d ,
Solicitor General.

J. S t a n l e y  P o ttin g er ,
Assistant Attorney General.

A. R a y m o n d  R a n d o l p h , Jr., 
Assistant to the Solicitor General. 

B r ia n  K . L andsberg ,
W alte r  W .  B a r n e t t ,
J o h n  C. H o y le ,

A pril  1973. Attorneys.

U. S .  GOVERNMENT PRINTING OFFICE : 1973