Green v. New Kent County, VA School Board Brief for the Respondents

    IN  TH E

Supreme Court of the United States

No. 695

CH ARLES C. GREEN, e t  a l ., 

v.
Petitioners,

CO UNTY SCH O O L BOARD OF 
NEW K EN T  COUNTY, VIRG IN IA , et  a l .,

Respondents.

On Writ of Certiorari to the United States Court of 
Appeals for the Fourth Circuit

BRIEF FOR THE RESPONDENTS

F red erick  T. G ray 
W a lter  E. R ogers 
R obert E. E ic h er

Counsel for Respondents

Wil l ia m s , M u l l e n  & C h ristia n

1309 State-Planters Bank Bldg.
Richmond, Virginia 23219

R obert Y. B utto n

Attorney General of Virginia 
R obert D. M c I lw a in e , III 

First Assistant Attorney General 
Richmond, Virginia



Q uestion Presented ....................................................   1

Constitutional Provision Involved...................................................  2

S tatem ent ..................................................................................................  2

Summary Of Argum ent ......................................................-............----- 3

Argument ........................................................................—-.....................  4

I. Introduction ................................................................................... 4

II. The validity of a plan permitting each pupil annually to at­
tend the public school of his free choice is implicit in the 
mandate of Brown v. Board of Education......... -......................  8

A. The Mandate of Brown v. Board of Education....................  8

B. The Shape and Meaning of the Brown v. Board of Edu­
cation Mandate...........................................................................  11

1. In the United States Supreme Court.................. -...........  11

2. In the other Federal Courts....... .................................... - 14

3. In the Congress. —.......................................................-..... 19

C. Fulfilling the Brown v. Board of Education Mandate:
The Freedom of Choice Plan.  ............................. -...........  21

1. Whether the plan “works”—constitutional principle or
mathematical equation? ............................................... —- 21

2. Private discrimination—promoted or suffered? ............ 23

3. Free choice—whose?...................................-.....................  25
4. Compulsory integration in formerly de jure systems—

principle or purge? ....................... -......................—- .......  27
5. Integration and education—antitheticals? ...........   29

Co nclusion .............................................................................................. - 33

TABLE OF CONTENTS
Page

i



TABLE OF CITATIONS

United States Constitution
Page

Fourteenth Amendment 8, 12, 17, 23, 27, 28

Cases

Anderson v. Martin, 375 U.S. 399 (1964) ...........................................  24

Bell v. School City of Gary, 213 F. Supp. 819 (N.D. Ind. 1963), 
affirmed, 324 F. 2d 209 (7th Cir.), cert, den., 377 U.S.
924 ....................................................................................... 15, 19-20, 27

Board of Education of Oklahoma City Public Schools v. Dowell, 375 
F. 2d 158 (10th Cir. 1967), cert, den., 387 U.S. 931 ..................  16

Bolling v. Sharpe, 3,47 U.S. 497 (1954) ................................................ 7

Bowman v. County School Board of Charles City County, 382 
F. 2d 326 (4th Cir. 1967) .............................................................. 5, 25

Bradley v. School Board of City of Richmond, 345 F. 2d 310 (4th 
Cir. 1965), vacated and remanded on other grounds, 382
U.S. 103 .........................................................................6, 8, 15, 22, 23

Briggs v. Elliott, 132 F. Supp. 776 (E.D.S.C. 1955) ........14, 19, 27, 28

Brown v. Board of Education of Topeka, 347 U.S. 483 (1954),
349 U.S. 294 (1955) .................. 3, 6, 8, 9, 10, 11, 12, 17, 21, 27

Brown v. Board of Education of Topeka, 139 F. Supp. 468 (D. 
Kan. 1955) ..................................................................................... 14, 20

Calhoun v. Latimer, 377 U.S. 263 (1964) ......................................... 12

Clark v. Board of Education of Little Rock School District, 369 F.
2d 661 (8th Cir. 1966), reh. den., 374 F. 2d 569 ......15, 21, 23, 24

Cooper v. Aaron, 358 U.S. 1 (1958) ...................................................... 11

Coppedge v. Franklin County Board of Education, 273 F. Supp.
289 (E.D.N.C. 1967) ......................................................................... 26

Deal v. Cincinnati Board of Education, 369 F. 2d 55 (6th Cir. 
1966), cert, den .,.....  U .S..................................................................  8

Downs v. Board of Education of Kansas City, 336 F. 2d 988 (10th 
Cir. 1964), cert, den., 380 U.S. 9 1 4 .....................................15, 16, 17



Evans v. Buchanan, 207 F. Supp. 820 (D. Del. 1962) ......................

Evans v. Ennis, 281 F. 2d 385 (3d Cir. 1960) ................................

Goss v. Board of Education of Knoxville, 373 U.S. 683 (1963)
12, 13,

Kelley v. Altheimer, Arkansas Public School District, 378 F. 2d 483 
(8th Cir. 1967) ................................................................................. 8,

Kemp v. Beasley, .....  F. 2d ......, No. 19017 (8th Cir. Jan. 9,
1968) ........   -15,

Lombard v. Louisiana, 373 U.S. 267 (1963) ............................   ...

Meyer v. Nebraska, 262 U.S. 3,96 (1923) ...................................—.....

Monroe v. Board of Commissioners of City of Jackson, 380 F. 2d 
955 (6th Cir. 1967), cert, granted, No. 740 (O.T, 1967) ..-.15,

Moses v. Washington Parish School Board, 276 F. Supp. 834 (E.D. 
La. 1967) .....................................................................................  28,

Olson v. Board of Education of Union Free School District, 250 
F. Supp. 1000 (E.D.N.Y. 1966), appeal dismissed, 367 F. 2d 
565 (2d Cir.) .......................................................................................

Pierce v. Society of Sisters of Holy Names, 268 U.S. 510 (1925) ....

Plessy v. Ferguson, 163 U.S. 537 (1896) ........................ ..................

Raney v. Board of Education of Gould School District, 381 F. 2d 
252 (8th Cir. 1967), cert, granted, No. 805 (O.T. 1967) ..........

Reitman v. Mulkey, 387 U.S. 369 (1967) ......................................

Robinson v. Florida, 378 U.S. 153 (1964) .........................................

Rogers v. Paul, 382 U.S. 198 (1965) ............................................... ...

Springfield School Committee v. Barksdale, 348 F. 2d 261 (1st 
Cir. 1965) .................................................................................... —---

Swann v. Charlotte-Mecklenburg Board of Education, 369 F. 2d 
29 (4th Cir. 1966) ...................................................................... ...

20

15

23

15

22

24

26

28

29

30

26

6

15

24

24

6

15

8



Taylor v. Board of Education of City School District of New 
Rochelle, 294 F. 2d 36 (2d Cir. 1961), cert. den. 368 U.S.
940 ....................................... .........................-................. -.........-.....15, 16

United States v. Jefferson County Board of Education, 372 F. 2d 
836 (5th Cir. 1966), aff’d with modifications on rehearing en 
banc, 380 F. 2d 385 (1967), cert. den. sub. nom., Caddo Parish 
School Board v. United States, 389 U.S. 840 ........... .17, 24, 27, 28

Statutes

Civil Rights Act of 1964, 78 Stat. 241 ................ ......17, 18, 19, 20, 27

1966 Amendment to Elementary and Secondary Education Act of 
1965, 80 Stat. 1212 ...................................-.................................... 20-21

Page

Other Authorities

Conant, Slums and Suburbs (1 9 6 1 )* .............. ....................10, 17, 30-31

Congressional Record, Vol. 110 (1964) ------------- -----------------  19

De Facto Segregation, Educational Policies Commission of the NEA 
and the American Association of School Administrators, NEA 
Journal (October 1965)* „ ........................... - ......- .........................  7

Fischer, Educational Problems of Segregation and Desegregation, 
from Education in Depressed Areas, A. Harry Passow, editor 
(1963)* ......................................................-.......-.........................-...... 8

Gordon, Assimilation in American Life: The Role of Race, Religion 
and National Origin (1 9 6 4 ) * ..................................................... 7, 18

Greenberg, Race Relations and American Law (1959) ................17, 18

Handlin, The Goals of Integration, from Daedalus (Winter 1966)*
18, 31

Ward & Paul, Transcripts of Brown v. Board of Education of 
Topeka, Case No. 101 (Library U.S. Supreme Court) ..... ....9, 10

*  Extracts from cited authorities appear in the Respondents’ Ap­
pendix in No. 740.

tv



IN TH E

Supreme Court of the United States

No. 695

CH A RLES C. GREEN, e t  a l .
Petitioners,

v .

CO UNTY SCH O O L BOARD OF 
NEW K E N T  CO UNTY, V IRG IN IA , e t  a l .,

Respondents.

On Writ of Certiorari to the United States Court of 
Appeals for the Fourth Circuit

BRIEF FOR THE RESPONDENTS

QUESTION PRESENTED

Are the Negro patrons of a public school system denied 
equal protection of the laws under the Fourteenth Amend­
ment to the United States Constitution where the system 
is administered under a plan of operation by which each



2

pupil is given an unrestricted annual right to attend the 
school of his choice without regard to race, color or na­
tional origin?

CONSTITUTIONAL PROVISION INVOLVED

This case involves Section I of the Fourteenth Amend­
ment to the Constitution of the United States.

STATEM ENT

The petitioners correctly state that, through the 1965- 
1966 school year, children in New Kent County attended 
school under the Pupil Placement Act of Virginia, and that 
there was no integration of the school system until 1965- 
1966 when 35 Negro children chose to attend the formerly 
all white school. Brief for Petitioners pp. 6-7.

However, an examination of the tables set forth on page 
7 of their Brief will show that, in the year following im­
plementation of the respondents’ freedom of choice plan, 
the number of Negro children attending the formerly all 
white school more than tripled, and that progress has been 
made towards faculty desegregation.

The most recent statistics show that 115 of the 736 Negro 
students are attending New Kent, the formerly all white 
school, and that there is an enrollment of 644 in New 
Kent and 621 in Watkins, and 28.2 teachers in New Kent 
and 30.8 in Watkins.

The freedom of choice plan under which the New Kent 
County public school system is operated is set forth in the 
Appendix at pages 34a through 44a and pages 50a through 
51a. In general, it gives each student in the system an un­
restricted right to attend the school of his choice. It has 
been examined and approved by HEW, the District Court 
and the Court of Appeals en banc.



3

Brown v. Board of Education of Topeka1 articulated a 
proscriptive constitutional mandate under the Fourteenth 
Amendment: No state shall deny to any child, solely be­
cause of race, admission to the public school of his choice. 
Compliance with the mandate required the elimination of 
state-imposed racial considerations so that those admitted 
to public schools were not Negro children and white chil­
dren—but just children.

The petitioners themselves concede that they have an un­
restricted choice and “ a privilege rarely enjoyed in the past 
—the opportunity to attend the school of their choice.” 
(Pet. for Cert. p. 13.) Yet they ask to be deprived of a 
choice because the choice exercised by their fellow resi­
dents of the county— entirely free of state-imposed or pro­
moted racial considerations—has not produced some sort 
of integrated balance of Negroes and whites in the school 
system.

That the states have no obligation under the Fourteenth 
Amendment to enforce compulsory integration of the races 
throughout the school system is recognized by decisions in 
the Courts of Appeal for the Fourth Circuit, the Sixth Cir­
cuit, the Seventh Circuit, the First Circuit, the Eighth Cir­
cuit and the Tenth Circuit and by the Congress of the 
United States. The same principle is implicit in decisions 
in the Courts of Appeal for the Third Circuit and the Sec­
ond Circuit, respectively.

The respondents are aware that their public school sys­
tem could be operated under some other plan. Their adop­
tion of freedom of choice is rooted in both a constitutional 
base and an educational base. It is designed to honor the

1347 U.S. 483 (1954), 349 U.S. 294 (1955) (hereinafter referred 
to as Brown I  and Brown I I  or as the Brown decisions).

SUMMARY OF ARGUMENT



4

educational imperative of the system, as well as to comply 
with the Fourteenth Amendment, in the light of the cir­
cumstances in this rural Virginia county and the experi­
ences in other areas with the withdrawal of white children 
from the public school system. Both the constitutional 
requirement and the educational function are fulfilled by 
the freedom of choice plan.

ARGUM ENT

I.

Introduction

In their Complaint filed March 15, 1965, the petitioners 
alleged, in Article VI, paragraph 16 on page 8, that they 
“ [S]uffer and will continue to suffer irreparable injury as 
a result of the persistent failure and refusal of the defend­
ants to initiate desegregation and to adopt and implement 
a plan providing for the elimination of racial discrimination 
in the public school s y s t e m (Emphasis added.) This was 
the basic premise of their Complaint and, significantly 
enough, it was reminiscent of the language in the Brown 
decisions.

On June 28, 1966, the District Court approved the re­
spondents’ freedom of choice plan for the operation of the 
New Kent County public school system. Under this plan 
each student in the county public school system, effective 
the 1966-67 term, was given the right to attend each year 
any school of his choice in the system.

The petitioners have acknowledged that under a free 
choice plan students are allowed to attend the school of 
their choice,2 and have conceded that their right to make

2“;[S]tudents are given a privilege rarely enjoyed in the past—the 
opportunity to attend the school of their choice.” Green v. County 
School Board of New Kent County, Pet. for Cert. p. 13.



5

an annual choice is “unrestricted and unencumbered.”3 
This would seem to fulfill the petitioners’ original premise; 
viz., elimination of racial discrimination by the respondents 
in their operation of the public school system.

However, the petitioners re-tooled their premise follow­
ing the adoption of the freedom of choice plan by the re­
spondents. It is now their premise that the respondents 
have a constitutional duty to compel Negro and white stu­
dents alike, their free choices to the contrary notwithstand­
ing, to attend schools on a racial basis in order to achieve 
an integrated system.

The re-tooled premise necessarily entails some difficulty 
for the petitioners, for it requires them to complain of the 
“ privilege rarely enjoyed in the past—the opportunity to at­
tend the school of their choice.”4 Thus, on page 49 of their 
Brief, the petitioners acknowledge that a freedom of choice 
plan is not unconstitutional per se, but that it is unconstitu­
tional in operation where “ there is little reason to believe 
it will be successful”— an euphemistic expression for racial 
balance throughout the system.

It is at this juncture, we submit, that the petitioners con­
cede the validity of the action of the District Court, which 
approved the plan with the retention of jurisdiction in order 
to observe its operation,5 and the action of the Court of 
Appeals, which remanded the case for the District Court to 
review and update the record and fashion proper decrees.

3Bowman v. County School Board of Charles City County, 382 F. 2d 
326, 328 (4th Gir. 1967), the companion case, for which no review 
is sought, decided together with this case. While the opinion dis­
cussed herein was rendered in the Charles City County case, it was 
expressly made applicable to this case. Green v. County School Board 
of New Kent County, 382 F. 2d 338, 339 (4th Cir. 1967).

4Note 2, supra.
5Since the plan has been in operation, the number of Negro students 

attending the formerly all white school has grown from 35 in 1965-66 
to 115 in 1967-68, according to the HEW Documents filed by the
petitioners.



6

A fundamental rule established by the Supreme Court 
in school desegregation cases is that control over the course 
and shape of desegregation rests with the district courts and 
with the school boards themselves. The very nature of the 
problem points up the wisdom of the rule.

It was precisely for this reason that Brown I I  remanded 
the cases to the district courts. In subsequent cases the 
Supreme Court consistently has adhered to this rule, either 
expressly or in practice, and it was the basis of the remands 
in Rogers v. Paul, 382 U.S. 198 (1965), and Bradley v. 
School Board of City of Richmond, 382 U.S. 103 (1965). 
Yet the petitioners would have control transferred to this 
Court, despite the fact that the District Court unquestion­
ably has the greater opportunity to observe the free choice 
plan in operation.

In the courts below, the thrust of the petitioners’ attack 
was upon the principle of free choice rather than the opera­
tion of the plan. It is incongruous that the movement which 
began in order to free the Negro from the inability to exer­
cise a choice because of race would now, for purely racial 
motives, deny him the choice. The petitioners say in effect 
that white and Negro alike should have no choice. There 
must be integration of the races in any event. The desire 
of parents and students must yield to the desire of those who 
would require compulsory integration.

Though the petitioners have conceded the existence of an 
unrestricted choice, they would have this Court force others 
to do what they are free to do already. This is dangerous 
in principle because it restores race as a criterion in the 
operation of the public schools, and it was this very criterion 
that was rejected in the Brown decisions. The criterion of 
race simply is improper under our governmental system.6

6“Our Constitution is colorblind.” Plessy v. Ferguson, 163 U.S. 537, 
559 (1896) (Dissenting opinion).



7

The genius of the American political tradition, in its 
best sense, in relation to race is that it dictates that 
racial criteria are not legitimate in the operation of 
governmental facilities and should be rigorously es­
chewed. To bring racial criteria in by the front door, 
so to speak, even before throwing them out the back, 
represents, in my opinion, no real gain for the 
body politic and has potentially dangerous implications 
for the future.7

The petitioners’ position also endangers the fundamental 
aim of the public school system. Clearly there is no re­
deeming value in integration compelled at the expense of 
education. This result would obtain, however, where the 
free choices of parents and pupils are frustrated. The fol­
lowing statement gives some perspective to the problem:

[T]he purpose of schools is education and . . .  no child 
is being served if education is being made impossible. 
School authorities must make clear when they believe 
that pupils are being used as pawns in the struggles 
of adults. The question to be asked about all proposals 
is whether they will improve the education of the 
pupils involved, not whether they will contribute to 
other goals, even desegregation.8

Integration alone is not, therefore, a proper goal in terms 
of the educational imperative. The social engineering in­
herent in compelling students to attend certain schools on

7Gordon, Assimilation in American Life: The Role of Race, Re­
ligion and National Origins, p. 250 (1964). See Bolling v. Sharpe, 347 
U.S. 497, 499 (1954) : “Classifications based solely upon race must be 
scrutinized with particular care, since they are contrary to our tradi­
tions and hence constitutionally suspect.”

8De Facto Segregation, Educational Policies Commission of the NEA 
and the American Association of School Administrators, NEA Journal 
p. 36 (October 1965).



8

purely racial grounds and against their wishes has no place 
in education,9 and, it is submitted, no warrant in law.

II.

The validity of a plan permitting each pupil annually to attend the 
public school of Ms free choice is implicit in the mandate of 

Brown v. Board of Education

A. T h e  M andate of Brown v. Board of Education

The seed of the petitioners’ case is sown upon stony 
ground when they cite the Brown decisions for the proposi­
tion that the Fourteenth Amendment mandates compulsory 
integration of public schools. The petitioners construe these 
decisions to mean that the Fourteenth Amendment pro­
hibits public schools which are segregated from any cause

9See Fischer, Educational Problems of Segregation and Desegrega­
tion, from Education in Depressed Areas, A. Harry Passow, editor, 
p. 290 (1963), in which the author commends “a maximum of free 
choice for all children” and criticizes the “growing pressure to locate 
schools, draw district lines, and organize curricula in order to achieve 
a pre-determined racial pattern or enrollment.” Id. at 296-97.

A sufficient answer to the petitioners’ complaint that a free choice 
plan is unreasonably burdensome and uneconomical to the school 
system is that these are not criteria under the Fourteenth Amendment. 
See Kelley v. Altheimer, Arkansas Public School District, 378 F. 2d 
483, 497 (8th Cir. 1967) (discussing costly and inefficient bus sys­
tems) . It is not conceded, moreover, that the geographic zone plan 
urged by the petitioners would be more economical and convenient 
to the system. The inevitable result of this, based upon the racial 
balance concept implicit in the petitioners’ argument, would be to 
put the respondents in the zoning business—a diurnal haul indeed. 
See Swann v. Charlotte-Mecklenburg Board of Education, 369 F. 2d 29 
(4th Cir. 1966), and Deal v. Cincinnati Board of Education, 369 F. 2d 
55 (6th Cir. 1966), cert, den., ............ U .S............., where the plain­
tiffs complained that the zones as drawn did not produce the “nec­
essary” racial composition in the schools and argued that the Boards 
were required to re-zone or take other steps whenever necessary to 
achieve the proper racial composition in the schools . See also Bradley 
v. School Board of City of Richmond, 345 F. 2d 310 (4th Cir. 1965), 
vacated and remanded on other grounds, 382 U.S. 103.



9

whatsoever and requires the appropriate State authorities 
to compel integration.

This construction by the petitioners must yield to the un­
equivocal language of the Court itself: 10

We come then to the question presented: Does 
segregation of children in public schools solely on the 
basis of race, even though the physical facilities and 
other ‘tangible’ factors may be equal, deprive the chil­
dren of the minority group of equal educational oppor­
tunities? We believe that it does. (Emphasis added.)

To separate [Negroes] from others of similar age and 
qualifications solely because of their race generates a 
feeling of inferiority as to their status in the com­
munity. . . . (Emphasis added.)

[W]e hold that the plaintiffs and others similarly situ­
ated for whom the actions have been brought are, by 
reason of the segregation complained of, deprived of 
the equal protection of the laws guaranteed by the 
Fourteenth Amendment. (Emphasis added.)

The key to the meaning of Brown I  lies in the italicized 
words, taken in context. The “segregation complained of,” 
which was held to deny equal protection of the laws, was 
the refusal of the respondents, solely on the basis of race, 
to permit Negroes to attend the school of their choice. It 
was, therefore, legally enforced segregation, solely on the 
basis of race, which the Court struck down— not freedom 
of choice. In fact, Mr. Justice Marshall himself, during 
his argument at the bar of this Court on December 9, 1952, 
in Case No. 101, carefully pointed out that the harm suf­
fered by the Negro children was the product of state-im­
posed segregation:

10347 U.S. at 493, 494 and 495 (Brown I ) .



10

But my emphasis is that all we are asking for is to 
take off this state-imposed segregation. It is the state- 
imposed part of it that affects the individual chil­
dren. . . .u

That Brown I  permits the respondents’ freedom of choice 
plan is implicit in the fourth of five questions put to coun­
sel to reargue in terms of the proper method of achieving 
desegregation: 12

4. Assuming it is decided that segregation in public 
schools violates the Fourteenth Amendment
(a) would a decree necessarily follow providing that, 
within the limits set by normal geographic school dis­
tricting, Negro children should forthwith be admitted 
to schools of their choice, or
(b) may this Court, in the exercise of its equity powers, 
permit an effective gradual adjustment to be brought 
about from existing segregated systems to a system not 
based on color distinctions? (Emphasis added.)

Clearly what concerned the Court was whether free 
choice shall be granted now or shall there be a gradual 
adjustment? Gradual adjustment to what? To schools with 
racial balance? No!— “ to a system not based on color dis­
tinctions.” A freedom of choice plan, in which there is an 
unrestricted and unencumbered right to attend any school 
in the system, is manifestly not based on color distinctions.

The Court invited freedom of choice by the very nature

iUWard & Paul, Transcript of Brown v. Board of Education of 
Topeka p. 28 (Library, U.S. Supreme Court). See Conant, Slums 
and Suburbs p. 27 et seq. (1961). The author suggests that the pupils 
in a completely Negro school are not by that fact alone deprived of 
equal educational opportunities if they are not assigned solely because 
of their race. Id. at 28

12347 U.S. at 495, n. 13.



11

of the relief it was considering and, in addition, by its de­
cision in Brown 11. There the Court answered question 
4(b) in the affirmative in remanding the cases to the dis­
trict courts for such orders and decrees as might be required 
to admit the petitioners to public schools on a racially non- 
discriminatory basis. Moreover, it is not without signifi­
cance that the Court couched its decision in terms of the 
admission, rather than the assignment, of students on a 
racially nondiscriminatory basis. A freedom of choice plan 
provides just such a basis in that the sole criterion for ad­
mission to any school is the individual’s free choice and not 
his race.13

B. T h e  S h a pe  and  M ea n in g  of t h e  Brown v. Board of 
Education M andate

1. In the United States Supreme Court

The mandate of the Brown decisions was stated in un­
equivocal terms in Cooper v. Aaron, 358 U.S. 1, 5, 7 
(1958) :

On May 17, 1954, this Court decided that enforced 
racial segregation in the public schools of a State is 
a denial of the equal protection of the laws enjoined 
by the Fourteenth Amendment. (Emphasis added.)

State authorities were thus duty bound to devote every 
effort toward initiating desegregation and bringing 
about the elimination of racial discrimination in the 
public school system. (Emphasis added.)

13Provided, of course, the choice will not result in overcrowding. 
In this case the plan properly provides that where a school would 
become overcrowded if all the choices were granted, pupils choosing 
that school will be assigned to the school of their choice nearest to 
their homes.



12

Clearly the respondents are not “ duty bound” under the 
Fourteenth Amendment to compel Negro and white stu­
dents alike, solely because of their race, to attend certain 
schools for the avowed purpose of integrating the races, 
their free choices to the contrary notwithstanding.

Later decisions of this Court likewise fail to support 
the petitioners’ argument that the States have an obligation 
under the Fourteenth Amendment to enforce a mixed racial 
composition in their public school systems. In fact, this 
Court has conveyed the clear impression that a freedom 
of choice plan is constitutionally permissible under the 
Brown mandate, even though some sort of racial balance 
between Negroes and whites is not thereby produced 
throughout the school system. Thus, Calhoun v. Latimer, 
377 U.S. 263 (1964), was remanded to the district court 
for an evidentiary hearing to determine whether the re­
spondent’s free transfer plan, with the addenda adopted 
subsequent to argument, satisfied the desegregation man­
date of Brown.

Goss v. Board of Education of Knoxville, 373 U.S. 683, 
689 (1963), focused on the elimination of “ state-imposed 
racial conditions” in the transfer of pupils. There the plan 
re-zoned school districts without reference to race but set 
up a transfer system under which students, upon request, 
would be permitted—solely on the basis of their race and 
the racial composition of the school to which they had been 
assigned—to transfer from, such school, where they would 
be in the racial minority, back to their former segregated 
school, where their race would be in the majority.

Although this Court held that a racial criterion for pur­
poses of transfer between public schools was unconstitu­
tional, it noted that: 14

14373 U.S. at 687.



13

[I]f the transfer provisions were made available to all 
students regardless of their race and regardless as well 
of the racial composition of the schools to which he 
requested transfer we would have an entirely different 
case. Pupils could then at their option [or that of their 
parents) choose, entirely free of any imposed racial 
considerations, to remain in the school of their zone 
or to transfer to another. (Emphasis added.)

The respondents’ free choice plan is that “ entirely dif­
ferent case” in which each pupil (or his parents) is free 
to choose which school he will attend, “ entirely free of any 
imposed racial considerations.” There the pupil (or his 
parents) had to show that he came under the majority- 
minority transfer rule to justify his choice. Here the pupils 
are not required to justify their choice by any racial cri­
terion. It is unrestricted and unencumbered and, therefore, 
consistent with the following dictum from Goss v. Board of 
Education of Knoxville, supra, at 688-89:

This is not to say that appropriate transfer provi­
sions, upon the parents’ request, consistent with sound 
school administration and not based upon any state- 
imposed racial conditions would fall. Likewise, we 
would have a different case here if the transfer provi­
sions were unrestricted, allowing transfers to or from 
any school regardless of the race of the majority there­
in. (Emphasis added.)

There is no difference in principle in the respondents’ 
plan, which gives to each pupil an unrestricted right each 
year to choose the school he wishes to attend, and a plan 
which assigns pupils on a non-racial basis and then gives 
them an unrestricted right each year to transfer to the 
school they wish to attend.



14

Although this Court has decided several other cases in- 
volving desegregation, the issue in most of them has been 
speed, i.e., the number of grades to be desegregated within 
a given time. Speed is not an issue in this case. The re­
spondents’ desegregation plan applied to all grades in the 
schools effective the 1966-67 school year.

2. In the other Federal Courts

The gist of the petitioners’ argument is that a public 
school system is segregated as long as there remains any 
school which is not attended by both white and Negro 
children. This argument was rejected by the three judge 
court on the remand in Brown v. Board of Education of 
Topeka, 139 F. Supp. 468, 470 (D. Kan. 1955) :

It was stressed at the hearing that such schools as 
Buchanan are all-colored schools and that in them 
there is no intermingling of colored and white chil­
dren. Desegregation does not mean that there must be 
intermingling of the races in all school districts. It 
means only that they may not be prevented from inter­
mingling or going to school together because of race 
or color.

In Briggs v. Elliott, 132 F. Supp. 776, 111 (E.D.S.C. 
1955), Judge Parker made perhaps the most famous ex­
pression of the constitutional distinction embodied in the 
Brown mandate:

What [the Supreme Court] has decided . . .  is that a 
state may not deny to any person on account of race the 
right to attend any school that it maintains. . . . Noth­
ing in the Constitution or in the decision of the Su­
preme Court takes away from the people freedom to 
choose the schools they attend. The Constitution, in



15

other words, does not require integration. It merely 
forbids discrimination.

This fundamental distinction is supported by decisions 
in the Circuit Courts of Appeal for the Fourth Circuit 
(.Bradley v. School Board of City of Richmond, supra, which 
was followed by the Court of Appeals in the case at bar), 
the Sixth Circuit (Monroe v. Board of Commissioners of 
City of Jackson, 380 F. 2d 955 (1967)) (now under review 
in No. 740), the First Circuit (Springfield School Com­
mittee v. Barksdale, 348 F. 2d 261 (1965)), the Seventh 
Circuit (Bell v. School City of Gary, 324 F. 2d 209 (1963), 
cert, den., 377 U.S. 924), the Eighth Circuit (Clark v. 
Board of Education of Little Rock School District, 369 
F. 2d 661 (1966), reh. den., 374 F. 2d 569)15 and the Tenth 
Circuit (Downs v. Board of Education of Kansas City, 336 
F. 2d 988 (1964), cert, den., 380 U.S. 914).

The same distinction is implicit in Evans v. Ennis, 281 
F. 2d 385 (3d Cir. 1960). Although Judge Biggs’ state­
ment quoted on page 37 of the petitioners’ Brief appears to 
support their position (“ The Supreme Court has unquali­
fiedly declared integration to be their constitutional right.” ), 
it has been lifted out of the context of his repeated state­
ments about Negro children who “desire,” “ seek” and “will 
seek” integration. There was no suggestion that the state 
was to compel integration where the children (or parents) 
did not desire or seek to attend school on an integrated 
basis. See also Taylor v. Board of Education of City

15Contra, Kemp v. Beasley, ............F. 2d..............., No. 19017 Janu­
ary 9, 1968 (different panel of 8th Circuit). Compare Raney v. 
Board of Education of Gould School District, 381 F. 2d 252 (8th Cir. 
1967) (now under review in No. 805), with Kelley v. Altheimer, Ar­
kansas Public School District, supra, for a further illustration of the 
division in opinion among the panels in the Eighth Circuit.



16

School District of New Rochelle, 294 F. 2d 36 (2d Cir. 
1961), cert, den., 368 U.S. 940, where the court, after 
finding that the school board had deliberately drawn and 
maintained district lines to perpetuate a “Negro’' school, 
decreed that the pupils were to be permitted (not com­
pelled) to transfer to other schools.

Moreover, support for the petitioners’ position is more 
apparent than real in Board of Education of Oklahoma 
City Public Schools v. Dowell, 375 F. 2d 158 (10th Cir. 
1967), cert, den., 387 U.S. 931. That case must be read in 
the light of Downs v. Board of Education of Kansas City, 
supra, where the use of geographic attendance zones had 
resulted in some schools having an all white and some 
schools having an all Negro enrollment. The appellants’ 
argument that this result rendered the zone plan unconstitu­
tional was rejected by the court, at 998:

Appellants also contend that even though the Board 
may not be pursuing a policy of intentional segrega­
tion, there is still segregation in fact in the school sys­
tem and under the principles of Brown v. Board of 
Education, supra, the Board has a positive and affirma­
tive duty to eliminate segregation in fact as well as 
segregation by intention. While there seems to be 
authority to support that contention, the better rule is 
that although the Fourteenth Amendment prohibits 
segregation, it does not command integration of the 
races in the public schools and Negro children have 
no constitutional right to have white children attend 
school with them. (Footnote omitted.) (Citations 
omitted.) (Emphasis added.)

This principle was reaffirmed in the Oklahoma City 
case even though it required the school board to take af­
firmative action to promote integration. The distinction 
between the two cases is that in Oklahoma City the school



17

board had acted in bad faith in its plans (or lack thereof) 
to desegregate the school system (even failing to comply 
with a court order), while in the Kansas City case the 
school board had acted in good faith.

The Fifth Circuit alone has stated without qualification 
that there is no distinction in constitutional principle be­
tween “ desegregation” and “integration,” and that the states 
have a duty under the Brown mandate to take affirmative 
action to achieve a mixed racial composition in all schools 
in the system.16 This position runs counter to the cases 
cited above from the other circuits, to the proscriptive lan­
guage of the Fourteenth Amendment, to the Civil Rights 
Act of 1964 and to the views of those who are trying to 
keep the educational lighthouse in sight amidst the turbu­
lent seas of litigation.

“ Segregation” is, according to the petitioners’ definition, 
both a condition and an activity. In their use it means any 
situation in which all pupils in a particular school are of 
the same race, and apparently they contend that even so 
defined it is unconstitutional— at least in the South. The 
sounder view, it is submitted, is that merely the existence of 
a wholly white or wholly Negro school is not unconstitu­
tional per se }1 The missing ingredient is someone who is 
discriminated against, who is denied admission solely be­
cause of race. This is the true focus of the Brown mandate, 
and it points up the distinctive meaning of the words in­
volved. The mandate was thus understood by Jack Green­
berg, principal counsel for the petitioners: 18

16United States v. Jefferson County Board of Education, 372 F. 2d 
836 (5th Cir. 1966), aff’d with modifications on rehearing en banc, 
380 F. 2d 385 (1967) (four judges dissenting), cert. den. sub. nom., 
Caddo Parish School Board v. United States, 389 U.S. 840.

17See Conant, Note 11, supra.
18Greenberg, Race Relations and American Law pp. 239-40 (1959). 

See Conant, Note 11, supra.



18

Moreover, the jury discrimination precedents may be 
recalled: Bias may be presumed from a consistently 
segregated result; a token number of Negroes may be 
legally equivalent to none. If, however, in education 
there were complete freedom of choice, or geographic 
zoning, or any other nonracial standard, and all Ne­
groes still ended up in certain schools, there would seem 
to be no constitutional objection.

“ Segregation,” “desegregation” and “ integration” are, 
therefore, words of art in legal contemplation, though it is 
significant that they are assigned distinctive meanings in 
other disciplines as well. Thus, Milton Myron Gordon, a 
sociologist at the University of Massachusetts, has writ­
ten :19

Desegregation refers to the elimination of racial 
criteria in the operation of public or quasi-public fa­
cilities, services, and institutions, which the individual 
is entitled to as a functioning citizen of the local or 
national community, equal in legal status to all other 
citizens. . . . Integration, however, embraces the idea 
of the removal of prejudice as well as civic discrimina­
tion and therefore refers to much more.

Proper definitions of these terms can be framed on the 
basis of the great body of decisional law and the Civil Rights 
Act of 196420:

Segregation—a system whereby persons of different 
races are required by the state to attend public schools 
set apart for their use only and are denied admission 
to all other public schools by the state solely because 
of a racial criterion.

19Note 7, supra, p. 246. See generally Handlin, The Goals of In­
tegration, from Daedalus, p. 268 (Winter 1966).

2078 Stat. 241.



19

Desegregation—a plan whereby persons of different 
races are admitted to the public schools in the system 
without regard to their race.

Integration—the intermingling of persons of differ­
ent races in the same public schools, either by the free 
choice of the persons themselves or by compulsory as­
signment by the state through the use of race as a 
criterion for assignment.

3. In the Congress

The legislative history of the Civil Rights Act of 1964 
clearly shows that Congress did not intend or announce a 
national policy requiring the states to take affirmative ac­
tion to achieve integration of the races in every school 
throughout the public school system.. This is manifest from 
the statements of the Senate floor leader for the Act, Hubert 
H. Humphrey, whose language paraphrased Judge Parker 
in Briggs v. Elliott, supra:21

Judge Beamer’s opinion in the Gary case [Bell v. School 
City of Gary, 213 F. Supp. 819 (N.D. Ind. 1963)] 
is significant in this connection. In discussing this case, 
as we did many times, it was decided to write the 
thrust of the court’s opinion into the proposed sub­
stitute.

I should like to make one further reference to the 
Gary case. This case makes it quite clear that while the 
Constitution prohibits segregation, it does not require 
integration. . . . The bill does not attempt to integrate 
the schools, but it does attempt to eliminate segregation 
in the school systems. (Emphasis added.)

Since Congress intended to write the “ thrust” of the Gary 
opinion into the Civil Rights Act, an examination of that

21110 Gong. Rec. 12715, 12717.



20

case will disclose the national policy embodied in the Act. 
The third question presented to the court for determination 
in that case is the same that the petitioners now present to 
this Court:

Whether the plaintiffs [approximately 100 minor Negro 
children] and other members of the class have a con­
stitutional right to attend racially integrated schools 
and the defendant has a constitutional duty to provide 
and maintain a racially integrated school system. Id. 
at 820.

The question was answered in the negative by Judge 
Beamer, who relied upon Brown v. Board of Education of 
Topeka, supra, and Evans v. Buchanan, 207 F. Supp. 820 
(D. Del. 1962). Judge Beamer quoted with approval from 
the latter case, at 830:

‘ [T]he States do not have an affirmative, constitu­
tional duty to provide an integrated education. The 
pertinent portion of the Fourteenth Amendment . . . 
reads, “nor [shall any State] deny any person within 
its jurisdiction the equal protection of the laws.” This 
clause does not contemplate compelling action; rather, 
it is a prohibition preventing the States from applying 
their laws unequally.’

Therefore, the Civil Rights Act of 1964 embodies the 
policy that, while no Negro shall be denied admission to 
any public school solely because of his race, there is no 
constitutional right to attend a racially integrated school 
and no corresponding duty on the state to achieve racial 
integration in all schools. Any lingering doubts should 
have been set to rest by the reaffirmation of this policy in 
the 1966 amendments to the Elementary and Secondary



21

Education Act of 1965, which added the emphasized lan­
guage below:22

In the administration of this chapter, no department, 
agency, officer, or employee of the United States shall 
exercise any direction, supervision, or control over the 
personnel, curriculum, or program of instruction of any 
school or school system of any local or State educa­
tional agency, or require the assignment or transporta­
tion of students or teachers in order to overcome racial 
imbalance.

C. F u l f il l in g  t h e  Brown v. Board of Education 
M a n d a t e : T h e  F reedom  of C hoice P la n

1. Whether the plan “ works”— constitutional principle 
or mathematical equation?

Freedom of choice plans have met with approval de­
spite the objections now made by the petitioners. The argu­
ment that they do not “work” because too few Negroes 
choose to attend formerly all white schools and whites seldom 
choose to attend the school formerly for Negroes alone was 
made and answered in Clark v. Board of Education of 
Little Rock School District, supra, at 666:

Plaintiffs are disturbed because only 621 of 7,341 
Negroes in the Little Rock school system of 23,000 
. . . were actually attending previously all white 
schools.23 Thus, they argue that the ‘freedom of choice’ 
plan is not succeeding in the integration of the schools.

Though the Board has a positive duty to initiate a

2280 Stat. 1212.
23HEW Documents filed by the petitioners show that 115 of 736 

Negroes are attending the formerly all white school in New Kent 
County, Virginia, in 1967-68.



22

plan of desegregation, the constitutionality of that plan 
does not necessarily depend upon favorable statistics 
indicating positive integration of the races. The Con­
stitution prohibits segregation of the races, the opera­
tion of a school system with dual attendance zones based 
upon race, and assignment of students on the basis of 
race to particular schools. If all of the students are, 
in fact, given a free and unhindered choice of schools, 
which is honored by the school board, it cannot be said 
that the state is segregating the races, operating a school 
with dual attendance areas, or considering race in the 
assignment of students to their classrooms. . . . The 
system is not subject to constitutional objections simply 
because large segments of whites and Negroes choose 
to continue attending their familiar schools.24

A like objection to freedom of choice was rejected in 
Bradley v. School Board of City of Richmond, supra, at 
315-16:

[T]he plaintiffs insist that there are a sufficient number 
of Negro parents who wish their children to attend 
schools populated entirely, or predominantly, by Ne­
groes to result in the continuance of some schools at­
tended only by Negroes. To that extent, they say that, 
under any freedom of choice system, the state ‘permits’ 
segregation if it does not deprive Negro parents of a 
right of choice.

It has been held again and again, however, that the 
Fourteenth Amendment prohibition is not against segre­
gation as such. The proscription is against discrimina­
tion. Everyone of every race has a right to be free of 
discrimination by the state by reason of his race. There 
is nothing in the Constitution which prevents his vol­
untary association with others of his race or which 
would strike down any state law which permits such 
association. The present suggestion that a Negro’s

24Contra, Kemp v. Beasley, supra (different panel).



23

right to be free from discrimination requires that the 
state deprive him of his volition is incongruous.

There is no hint [in Brown] of a suggestion of a con­
stitutional requirement that a state must forbid volun­
tary associations or limit an individual’s freedom of 
choice except to the extent that such individual’s free­
dom of choice may be affected by the equal right of 
others. A state or a school district offends no constitu­
tional requirement when it grants to all students uni­
formly an unrestricted freedom of choice as to schools 
attended, so that each pupil, in effect, assigns himself 
to the school he wishes to attend.25

2. Private discrimination—promoted or suffered?

The petitioners have varied the theme of the arguments 
in Clark and Bradley in an effort to bring freedom of 
choice within the pale, however peripheral, of proscribed 
“ state action” under the Fourteenth Amendment. Thus, 
in note 53 on page 42 of their Brief they suggest that by- 
permitting students (or parents) to choose their schools, the 
respondents promote invidious discrimination which ren­
ders the plan unconstitutional.26

25Under the respondents’ freedom of choice plan there is a 15 day 
choice period each year, all school activities are covered, transporta­
tion is without regard to race, no person may be penalized or favored 
because of the choice made, and no school personnel may advise, 
recommend or influence choices. See Goss v. Board of Education of 
Knoxville, supra.

25The same point is stressed by the Solicitor General in his amicus 
Memorandum. He seems to assume that a freedom of choice plan 
peculiarly enables school patrons to succumb to the blandishments 
of racial prejudice. In reality school patrons are as likely to succumb 
even where geographic zoning or pairing devices are employed. The 
experience in the North and Washington, D. C., bears this out. The
fact of the matter is that, in terms of integration, Negroes have a 
greater option under the freedom of choice plan. This is true because



24

The flaw in this argument is that, while the petitioners 
concede that the Constitution does not prohibit private 
discrimination, they are unable to point to any affirmative 
race-related activity on the part of the respondents. It is 
settled, of course, that the state may remain neutral with 
respect to private racial discrimination. See Reitman v. 
Mulkey, 387 U.S. 369 (1967). And this would seem to 
be a sufficient answer to the petitioners’ argument because 
here, unlike Reitman v. Mulkey, supra, and other so-called 
“ state action” cases,27 the state has made no classification 
on the basis of race and has not acted in any way to inject 
racial considerations in the free choice process.

The validity of the respondents’ plan is not based upon 
their neutrality, however. It is based upon the fact that the 
respondents have taken affirmative action towards the elimi­
nation of race as a criterion in the school community under 
the free choice plan. Thus, the Choice of School Form sent 
annually is accompanied by a letter on the school board 
letterhead, signed by the Superintendent of Schools, stat­
ing the following:

Dear Parent:
A plan for the desegregation of our school system has 
been put into effect so that our schools will operate

people may choose where they will live and whether their children 
will attend a private school, but because of their economic condition 
and housing pattern Negroes do not enjoy the same choice. A free­
dom of choice plan alone enables Negroes to break away from housing 
patterns and a disadvantaged economic condition to achieve education 
in an integrated school. See Clark v. Board of Education of Little 
Rock School District, supra. Taliaferro County, Georgia, is a case in 
point. Its two schools were paired in 1965, when there were some 600 
Negro students and 200 white students. In 1967 there were 527 
Negro students and no whites. United States v. Jefferson County 
Board of Education, supra, at 416, n. 6.

27E.g., Robinson v. Florida, 378 U.S. 153 (1964), Anderson v. 
Martin, 375 U.S. 399 (1964), and Lombard v. Louisiana, 373 U.S. 
267 (1963).



25

in all respects without regard to race, color, or national 
origin.

[Tjhere will be no discrimination based on race, color, 
or national origin in any school-connected services, fa­
cilities, activities and programs.28

The respondents have, therefore, committed the influence 
of their office to a nonracial school system and have com­
mended such a system to the community by means of this 
letter and by the publicity and community preparation ac­
tivities spelled out in Article X  of the Plan for School 
Desegregation.29

3. Free choice— whose?

The exercise of the choice in an acceptable freedom of 
choice plan was discussed by Judge Haynsworth in the 
companion case, Bowman v. County School Board of 
Charles City County, supra, at 327-28:

If each pupil, each year, attends the school of his 
choice, the Constitution does not require that he be 
deprived of his choice unless its exercise is not free.

Whether or not the choice is free may depend upon 
circumstances extraneous to the formal plan of the 
school board. If there is a contention that economic 
or other pressures in the community inhibit the free 
exercise of the choice, there must be a judicial appraisal 
of it, for ‘freedom of choice’ is acceptable only if the 
choice is free in the practical context of its exercise. 
If there are extraneous pressures which deprive the 
choice of its freedom, the school board may be re-

28The letter is set out in the petitioners’ Appendix at pp. 43a-44a.
29The Plan is set out in the Petitioners’ Appendix at pp. 34a-40a.



2b

quired to adopt affirmative measures to counter them.

Since the plaintiffs here concede that their annual 
choice is unrestricted and unencumbered, we find in its 
existence no denial of any constitutional right not to 
be subjected to racial discrimination. (Emphasis 
added.)

Despite their concession in the Court of Appeals, the 
petitioners apparently take the position that a free choice 
for Negroes in the South is a contradiction in terms. Yet 
they were unable to offer for judicial appraisal by the Dis­
trict Court anything other than speculation and conjecture. 
Therefore, cases such as Coppedge v. Franklin County 
Board of Education, 273 F. Supp. 289 (E.D.N.C. 1967), 
are scarcely relevant.

Moreover, the petitioners’ argument that Negroes in New 
Kent County do not have a free choice is, in logic, post hac 
ergo propter hac. From the fact that a greater number of 
Negro students have not chosen to attend the formerly all 
white school, the petitioners conclude that the Negroes do 
not have a free choice. What the petitioners overlook is that 
Negroes, like whites, may choose to remain in the same 
school simply because the surroundings are familiar and 
they have friends there.

Because they view any choice as the product of racial 
prejudice (whites) or coercion (Negroes) and disclaim non- 
racial choices, the petitioners would deny a choice to every­
one—students and parents alike. The fundamental right 
of parents to direct the education of their children is, 
therefore, to be denied in the name of integration, their 
preference to the contrary notwithstanding.30

. x Cf. Pierce v. Society of Sisters of Holy Names, 268 U.S. .610 
(1925), and Meyer v. Nebraska, 262 U.S. 396 (1923).



27

4. Compulsory integration in formerly de jure systems— 
principle or purge?

The petitioners argue that, since there was de jure segre­
gation in the New Kent County schools at the time of 
Brown v. Board of Education, supra, the respondents have 
an affirmative duty under the Fourteenth Amendment to 
enforce integration of the races in every public school. 
In support of this unique argument, they quote at length 
from United States v. Jefferson County Board of Educa­
tion, supra, which, interestingly enough, concluded by ap­
proving a freedom of choice plan.

There the court found such a duty following its re­
examination of school desegregation standards in the light 
of the Civil Rights Act of 1964 and the HEW Guidelines. 
As we have seen, the congressional intent was to embody 
in the Act the decision of Judge Beamer in Bell v. School 
City of Gary, supra. In Jefferson County the court (divided 
2-1) excised this intent by a tailored construction of the 
legislative history. It found that, although Senator Hum­
phrey spoke several times in the language of Briggs v. 
Elliott, his references to Bell v. School City of Gary “ indi­
cated” that the policy against affirmative, compulsory ac­
tion to achieve racial balance was directed to the Gary, 
Indiana, de facto segregation and did not apply to de jure 
segregation. Therefore, the court concluded, there was in 
fact a national policy that formerly de jure segregated pub­
lic school systems were obligated to take affirmative action 
in order to achieve a mixed racial composition throughout 
the entire system.31

31The HEW Guidelines were considered an expression of such a 
national policy. In the instant case the petitioners did not, and 
properly so, predicate their case on the HEW Guidelines. Indeed, in 
note 44 on page 32 of their Brief the petitioners make an interesting



28

This conclusion is untenable, as four judges vigorously 
pointed out on the rehearing en banc. In the first place, the 
decision ignores the fact that the Gary school system had 
de jure segregation until 1949, and that Judge Beamer cited 
cases which upheld Briggs v. Elliott, clearly a de jure segre­
gation situation. Secondly, the decision fashions a double 
standard under the Fourteenth Amendment, one for the 
South and another for the North, on the basis of the de 
jure-de facto distinction. This is without support in prin­
ciple and reason. It completely rejects the fact that prior to 
1954 racially separate, if equal, public schools had not been 
declared unconstitutional.

The real concern about Jefferson County is that it will 
not be understood for what it is— an exercise in “ social 
engineering.”32 There is cause for optimism, however, be­
cause the decision was not accepted by the Fourth Circuit 
in this case, and the error in its de jure-de facto distinction 
was clearly seen in Monroe v. Board of Commissioners of 
City of Jackson, supra, at 958:

However ugly and evil the biracial school systems ap­
pear in contemporary thinking, they were, as Jefferson, 
supra, concedes, de jure and were once found lawful 
in Plessy v. Ferguson . . . and such was the law for 58 
years thereafter. To apply a disparate rule because 
these early systems are now forbidden by Brown would

concession regarding the Guidelines. They state that HEW has ap­
proved free choice plans, despite their inability to disestablish the dual 
system, only because such plans have received approval in the courts. 
“ It feels, perhaps properly, that it may not enforce requirements more 
stringent than those imposed by the Fourteenth Amendment.”  (Em­
phasis added.) This is tantamount to a concession by the petitioners 
that the requirements they now ask this Court to impose are more 
stringent than those imposed by the Fourteenth Amendment.

32See Notes 8 and 9, supra. Cf. Moses v. Washington Parish School 
Board, 276 F. Supp. 834 (E. D. La. 1967).



29

be in the nature of imposing a judicial Bill of At­
tainder. . . . Neither, in our view, would such decrees 
comport with our current views of equal treatment 
before the law.

5. Integration and education— antitheticals?

It is hoped that the educational lighthouse is still in 
sight. It calls for an equal educational opportunity for 
all children, regardless of race, color or national origin. The 
respondents maintain that their public school system offers 
an opportunity for each child to receive as good an educa­
tion as every other child in the system, and apparently the 
petitioners do not challenge this in fact.

Their position seems to be that, as a matter of principle, 
the educational opportunity of Negro children is unequal 
and can never be equal unless they are made to attend 
classes with white children. Thus, if the free choices of 
children and parents produce schools which do not grant 
to Negro children the “ advantage” of education with white 
children, the Negro children are, ipso facto, receiving an 
education inferior to that of the whites and their fellow 
Negroes who are attending school with whites.

That argument is manifestly erroneous in two respects. 
First, it assumes that Negro children who freely choose not 
to attend an integrated school are thereby harmed. It is too 
incredible for belief that this circumstance generates a 
feeling of inferiority as to their status in the community. 
Certainly this proposition has never been tested and proved. 
Moses v. Washington Parish School Board, supra. The sec­
ond, and more fundamental error, was discussed in Moses 
at 845, 846:

It should be noted that the rather obvious objective 
of the proponents of the ‘equal educational oppor­
tunity’ theory is the elimination of racial prejudice



30

through the public school system, rather than the im­
mediate fulfillment of equal educational opportunities 
for all students. Little has been put forth to prove that 
actual and active integration will in fact of itself raise 
the educational opportunities even of formerly segre­
gated Negro students.

[T]he emphasis should always be on a good education 
for all students, and courts should refuse to rule that a 
particular all-Negro school, where the Negro concen­
tration is fortuitous, is ipso facto unequal and that the 
solution to the ‘problem’ is the forced mixing of the 
races.

Long ago it was settled that the hearts and minds of 
Negro children are adversely affected by a state’s refusal 
to admit them, solely because of their race, to the schools 
of their choice. We have now come full circle, but little 
or no consideration seems to have been given to the effect 
of compulsory integration on Negroes and whites alike. 
Is there no danger in compelling children, in the name of 
integration, to attend a certain school in order to achieve 
a certain racial composition, regardless of their own de­
sires? The matter was aptly put in Olson v. Board of Edu­
cation of Union Free School District, 250 F. Supp. 1000, 
1006 (E.D.N.Y. 1966), appeal dismissed, 367 F. 2d 565 
(2 d Cir.) :

[N]or did it [Brown] decide that there must be coerced 
integration of the races in order to accomplish educa­
tional equality for this also would require an appraisal 
of the effect upon the hearts and minds of those who 
were so coerced.

Like caveats have been sounded in terms of how com­
pulsory integration will affect the educational imperative. 
James Bryant Conant, whom the petitioners identify on



31

page 44 of their Brief as the author of the most important
study of secondary education in America, warrants quoting 
at length:33

In some cities, political leaders have attempted to 
put pressure on the school authorities to have Negro 
children attend essentially white schools. In my judg­
ment the cities in which the authorities have yielded to 
this pressure are on the wrong track. Those which have 
not done so, like Chicago, are more likely to make 
progress in improving Negro education. It is my belief 
that satisfactory education can be provided in an all- 
Negro school through the expenditure of more money 
for needed staff and facilities. Moreover, I believe that 
any sense of inferiority among the pupils caused by 
the absence of white children can be largely if not 
wholly eliminated in two ways: first, in all cities there 
will be at least some schools that are in fact mixed 
because of the nature of the neighborhood they serve; 
second, throughout the city there ought to be an in­
tegrated staff of white and Negro teachers and ad­
ministrators.34

A similar position has been taken by Oscar Handlin, 
another distinguished writer, who has called integration 
a “ false issue” i35

The insistence upon integration is thus self-frustrating, 
as the experience of Washington, D. C., shows. Fur­
ther pressure toward racial balance will certainly weak­

33Note 11, supra, pp. 28-29.
34The second suggestion of Dr. Conant points up the wisdom of the 

Circuit Court in remanding this case to the District Court to review 
and update the record and fashion proper decrees based upon its 
continuing observation of the plan in operation through the retention 
of jurisdiction.

35Note 19, supra, p. 282.



32

en the public schools and leave the Negroes the greatest 
sufferers.36

These views warrant serious consideration. They make a 
point which has been overlooked too often: Desegregation 
(i.e., the elimination of state enforced segregation solely 
because of race) is a legal question; integration (i.e., the 
compulsory assignment of pupils to achieve intermingling) 
is an education question—best left for decision by educators, 
for educational purposes, on the basis of educational cri­
teria.37 A freedom of choice plan alone honors this dis­
tinction.

36Id. at 281. The experience in Taliaferro County, Georgia (Note 
26, supra) is a sad illustration of this. A unitary system was achieved, 
of course, but it is hardly what the proponents of compulsory inte­
gration intended and is unlikely to afford an adequate let alone 
equal—educational opportunity to the Negro students.

37See Notes 8 and 9, supra.



33

CONCLUSION

W H EREFO RE, for the foregoing reasons it is respect­
fully submitted that the judgment of the Court of Appeals 
for the Fourth Circuit should be affirmed.

Respectfully submitted,

F red erick  T. G ray 
W a lter  E. R ogers 
R obert E. E ic h er

Counsel for Respondents

Wil l ia m s , M u l l e n  & C h r istia n  
1309 State-Planters Bank Bldg.
Richmond, Virginia 23219

R obert Y. B u tto n
Attorney General of Virginia 

R obert D . M c I l w a in e , I I I  
First Assistant Attorney General 
Richmond, Virginia