Wright v. Council of the City of Emporia Brief for Petitioners

    I n  t h e

i>uprmp ©Hurt nf %  lu it^  States
O ctober T erm , 1971 

No. 70-188

P ecola A nnette  W righ t , et al.,

Petitioners,

—v.—

C ouncil  oe th e  C it y  oe E mporia , et al.

ON W R IT  OP CERTIORARI TO T H E  U N ITED  STATES 

COURT OE APPEALS FOR T H E  F O U R TH  CIRCU IT

BRIEF FOR PETITIONERS

J ack  G reenberg 
J ames M. N abrit, III 
N orman  J . C h a c h k in  

10 Columbus Circle 
New York, New York 10019

S. W. T ucker 
H enry  L. M arsh , III 

214 East Clay Street 
Richmond, Virginia 23219

Attorneys for Petitioners



I N D E X

Opinions Below ..... ......................... .............................  1

Jurisdiction .......    2

Question Presented ..............................   2

Constitutional and Statutory Provisions Involved 2

Statement .........    3

Background of the Litigation ..... ..... ...............  3

Emporia Moves to Operate a Separate System 8

The District Court’s Decision ........................... 18

The Court of Appeals’ Ruling .........    25

Summary of Argument .......................................    28

A egxjmen't :—

I. The District Court Properly Ignored 
Newly Drawn Political Boundaries in 
Framing a Remedial Decree to Disestab­
lish School Segregation Which Had Been 
Maintained Without Regard to the Same 
Political Boundaries ....................    30

II. The “Primary Motive” Standard An­
nounced by the Court Below Is 111 Con­
ceived and 111 Suited to School Deseg­
regation Cases ............................................  37

PAGE



11

III. Even Were the Court of Appeals’ Stan­
dard Acceptable, It Was Misapplied in

PAGE

This Case ...................................................... 46

Conclusion- ...............................................................................  55

B rief A p p e n d ix :'—

Excerpts from Virginia Code, Annotated.......  App. 1

T able of A uthorities

Cases:

Alexander v. Holmes County Bd. of Educ., 396 U.S. 19
(1969) ..............   39

Anthony v. Marshall County Bd. of Educ., 419 F.2d
1211 (5th Cir. 1969) ................ .....................................  7n

Aytch v. Mitchell, 320 F. Supp. 1372 (E.D. Ark. 1971).... 41

Bradley v. School Bd. of Richmond, 325 F. Supp. 828
(E.D. Va. 1971) .........................................   44n

Bradley v. School Bd. of Richmond, Civ. No. 3353 (E.D.
Va., April 5, 1971) .................     44n

Brown v. Board of Educ., 347 U.S. 483 (1954) ; 349 U.S.
294 (1955) .........................................................................  31

Brunson v. Board of Trustees, 429 F.2d 820 (4th Cir.
1970) ............................................................................... 30,54

Buckner v. County School Bd. of Greene County, 332
F.2d 452 (4th Cir. 1964) .....   30n

Burleson v. County Bd. of Election Comm’rs of Jeffer­
son County, 308 F. Supp. 352 (E.D. Ark.), aff’d per 
curiam, 432 F.2d 1356 (8th Cir. 1970)...........35,36,39,41

City of Richmond v. County Board, 199 Va. 679, 101 
S.E.2d 641 (1958) 4n



1X1

Clark v. Board of Educ. of Little Bock, 426 F.2d 1035
(8th Cir. 1970) ........................... , ....... ............................. 43

Colonial Heights v. Chesterfield County, 196 Ya. 155,
82 S.E.2d 566 (1954) ....................................................4n, 5n

Corbin v. County School Bd. of Pulaski County, 177
F.2d 924 (4th Cir. 1949) ................................................ 30n

Crisp v. County School Bd. of Pulaski County, 5 Race 
Bel. L. Rep. 721 (W.D. Va. 1960) ..............................  30n

Dove v. Parham, 282 F.2d 256 (8th Cir. 1960) ...........39, 40

Goins v. County School Bd. of Grayson County, 186 
F. Supp. 753 (W.D. Va. 1960), stay denied, 282 F.2d
343 (4th Cir. 1960) ........................................................ 30n

Gomillion v. Lightfoot, 364 U.S. 339 (1960).......... 25,37,38
Goss v. Board of Educ. of Knoxville, 373 U.S. 683

(1963) .................. ............................................................  43
Green v. County School Bd. of New Kent County, 391

U.S. 430 (1968) ............... ...............................6, 26, 31, 32,42
Griffin v. Board of Supervisors of Prince Edward

County, 203 Va. 321, 124 S.E.2d 227 (1962) ........... . 33
Griffin v. County School Bd. of Prince Edward County,

377 U.S. 218 (1964) ........................................................ 33

Hall v. St. Helena Parish School Bd., 417 F.2d 801 (5th
Cir.), cert, denied, 396 U.S. 904 (1969) ......................  42

Haney v. County Bd. of Educ. of Sevier County, 410
F.2d 920 (8th Cir. 1969) ..............................................25,38

Haney v. County Bd. of Educ. of Sevier County, 429
F.2d 364 (8th Cir. 1970) ......... ...................................33, 45n

Hawkins v. Town of Shaw, 437 F.2d 1286 (5th Cir. 
1971)

PAGE

44



I V

PAGE

Jackson v. Godwin, 400 F.2d 529 (5th Cir. 1969)........... 44
Jenkins v. Township of Morris School D ist.,------ N.J.

------ , ------ A.2 d -------  (1971) ............ .............................. 42

Kennedy Park Homes Ass’n, Inc. v. City of Lacka­
wanna, 436 F.2d 108 (2d Cir. 1970), cert, denied, 401
U.S. 1010 (1971) ............................................ .......... ......  43

Keyes v. School Hist. No. 1, Denver, 396 U.S. 1215
(1969) ...............................................................................  48

Lee v. Macon County Bd. of Educ., No. 30154 (5th Cir.,
June 29, 1971) ....... ............. ......... ................... 34, 36,40,46

Lemon v. Bossier Parish School Bd., 446 F.2d 911, 444 
F.2d 1400 (5th Cir. 1971) .............................................. 7n

Moses v. Washington Parish School Bd., Civ. No. 
15973 (E.D. La., August 9, 1971) ............................... 7n

North Carolina State Bd. of Educ. v. Swann, 402 U.S.
43 (1971) ......     34

Northcross v. Board of Educ. of Memphis, 397 U.S. 232
(1970) ...............................................................................  48

Palmer v. Thompson, 403 U.S. 217 (1971) ..................... 40
Plaquemines Parish School Bd. v. United States, 415 

F.2d 817 (5th Cir. 1969) .............................     45n

Raney v. Board of Educ. of Gould, 391 U.S. 443 (1968) 33
Ross v. Dyer, 312 F.2d 191 (5th Cir. 1963) ................... 43

School Bd. v. School Bd., 200 Va. 587, 106 S.E.2d 655
(1959) ...............................................................................  5n

School Bd. of Warren County v. Kilby, 259 F.2d 497 
(4th Cir. 1958) ...............................................................  30n



y

Stout v. Jefferson County Bd. of Educ., 448 F.2d 403
(5th Cir. 1971) ............................................................. 34,41

Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S.
1 (1971) ................................................................... 31,32,33

United States v. Board of Educ. of Lincoln County, 301
F. Supp. 1024 (S.D. Ga. 1969) ......................................  7n

United States v. Board of Educ. of Webster County,
431 F.2d 59 (5th Cir. 1970) .................. ................. -....  6n

United States v. Duke, 332 F.2d 759 (5th Cir. 1964).....  33
United States v. Georgia, Civ. No. 12972 (N.D. Ga.,

Jan. 13, 1971) .................... ....... ...................................... 44n
United States v. Hinds County School Bd., 417 F.2d

852 (5th Cir. 1969) ................................... ....... ..............  On
United States v. Montgomery County Bd. of Educ., 395

U.S. 225 (1969) ................. ........................................ ....  33
United States v. Sunflower County School Dist., 430

F.2d 839 (5th Cir. 1970) .............. ......... ..... ..................  7n
United States v. Tunica County School Dist., 421 F.2d 

1236 (5th Cir. 1970) ...................................................... 7n

Walker v. County School Bd. of Floyd County, 5 Race
Rel. L. Rep. 714 (W.D. Va. 1960) ..............................  30n

Wright v. County School Bd. of Greensville County,
252 F. Supp. 378 (E.D. Va. 1966) ..............................  4

Statutes:

42 U.S.C. §§2000d-l et seq..................................   4

Va. Code Ann. §15.1-21 (Repl. 1964) ................  4n

Va. Code Ann. §§15.1-978 et seq. (Repl. 1964) . 4n

Va. Code Ann. §§15.1-1003, -1004 (Repl. 1964) .. 5n

PAGE



VI

Ya. Code Ann. §15.1-1005 (Repl. 1964) .....................4n, 53

Va. Code Ann. §22-2 (Repl. 1969) ........  4n

Va. Code Ann. §22-7 (Repl. 1969) ..........   5n

Va. Code Ann. §§22-30, -31, -32, -34, -36 (Repl. 1969) 4n

Va. Code Ann. §22-42 (Repl. 1969) ...............................  3n

Va. Code Ann. §22-43 (Repl. 1969) .......................... 3n, 53

Va. Code Ann. §22-80 (Repl. 1969) ..............................  4n

Va. Code Ann. §22-99 (Repl. 1969) .........................5n, 45n

Va. Code Ann. §§22-100.1, -100.2 (Repl. 1969) ...........  5n

Other Authority:

J. Ely, Legislative and Administrative Motivation in 
Constitutional Law, 79 Yale L.J. 1205 (1970).......... 38n

PAGE



In t h e

(Hmtrt at tiĵ  MnitTii States
O ctobeb T erm , 1971 

No. 70-188

P ecola A nnette  W righ t , et al.,

Petitioners,
-------- y . --------

Council  oe the  Cit y  of E mporia, et al.

ON W R IT  OF CERTIORARI TO T H E  U N ITED  STATES 

COURT OF APPEALS FOR T H E  FO U R TH  CIRCU IT

BRIEF FOR PETITIONERS

Opinions Below

Tlie opinions of tlie courts below are as follows:

1. District Court’s Findings of Fact and Conclusions 
of Law of August 8, 1969 and Order of August 8,1969 
granting preliminary injunction, unreported (190a- 
195a).1

2. District Court’s Opinion of March 2, 1970, reported 
at 309 F. Supp. 671 (293-309a).

3. Court of Appeals’ Opinions of March 23, 1971, re­
ported at 442 F.2d 570, 588 (311a-347a).

1 Citations are to the Single Appendix filed herein.



2

Earlier proceedings in the same case are reported as 
Wright v. County School Bd. of Greensville County, 252 
F. Supp. 378 (E.D. Va. 1966) (15a-28a).

Jurisdiction

The judgment of the Court of Appeals was entered on 
March 23, 1971. The jurisdiction of this Court is invoked 
pursuant to 28 U.S.C. §1254(1). The petition for a writ 
of certiorari was tiled in this Court on May 20, 1971, and 
was granted on October 12, 1971,

Question Presented

Whether the Court of Appeals erred by holding that new 
school districts may be operated which divide a unit that is 
faced with the duty to desegregate a dual system, where the 
changed boundaries result in less desegregation, and where 
formerly the absence of such boundaries was instrumental 
in promoting segregation.

Constitutional and Statutory Provisions Involved

This matter involves Section 1 of the Fourteenth Amend­
ment to the Constitution of the United States, which pro­
vides as follows:

All persons born or naturalized in the United States, 
and subject to the jurisdiction thereof, are citizens of 
the United States and of the State wherein they re­
side. No State shall make or enforce any law which 
shall abridge the privileges and immunities of citizens 
of the United States; nor shall any State deprive any 
person of life, liberty, or property, without due process



3

of law; nor deny to any person within its jurisdiction 
the equal protection of the laws.

The following sections of the Virginia Code (statutes 
related to the operation of school districts and divisions 
within the Commonwealth of Virginia) are set out in an 
appendix to this Brief, infra : Va. Code Ann. §§22-7, -30, 
-34, -42, -43, -89, -99, -100.1, -100.2 (Repl. 1969).

Statement

Background of the Litigation

This lawsuit began with the filing of a Complaint on 
March 15, 1965 seeking the desegregation of the public 
schools of Greensville County, Virginia (2a-lla), a rural 
county near the center of which was located the town of 
Emporia (15a).2 As the district court found, “ [p]rior to 
1965, the county operated segregated schools based on a 
system of dual attendance areas. The white schools in 
Emporia served all ivhite pupils in the county. The four 
Negro elementary schools were geographically zoned, and 
the Negro high school served all Negro pupils in the county” 
(emphasis supplied) (15a). On January 27, 1966 the court 
approved, subject to satisfactory amendment so as to pro­
vide for faculty desegregation, a freedom-of-choice plan

2 Under Virginia law applicable at the time of the events relevant 
hereto, the county was the basic operational school unit, Va. Code 
Ann §22-42 (Repl. 1969). In 1965, when Emporia had the status, 
under Virginia law, of a “ Town,” the County School Board of 
Greensville County operated public schools for children residing 
therein as well as in the rest of Greensville County. Although the 
Town might have sought designation by the State Board of Educa­
tion as a separate school district, either to obtain representation on 
the county school board, see Va. Code Ann. §22-42 (Repl. 1969) or 
to operate its own school system, Va. Code Ann. §22-43 (Repl. 
1969), there is no indication in this record of any attempt to do so 
while Emporia was a Town.



4

which the county had adopted in April, 1965 in order to 
retain its eligibility for federal funds under Title V I of 
the Civil Eights Act of 1964, 42 U.S.C. §§2000d-l et seq. 
(16a). Wright v. County School Bd. of Greensville County, 
252 F. Supp. 378 (E.D. Va. 1966).

On July 31, 1967, the Town of Emporia became a city of 
the second class3 and a school board for the new city was 
appointed.4 * On December 7, 1967, the State Board of Edu­
cation designated Emporia and Greensville County a single 
school division (245a).6 The schools continued to be oper­
ated under the freedom-of-choice plan by the county school 
hoard for both city and county children while discussions 
between officials about ultimate school organization pro­

3 See Va. Code Ann. §§15.1-978 et seq. (Repl. 1964). Unlike 
towns, cities in Virginia are entities politically independent of the 
counties which surround them, see City of Richmond v. County 
Board, 199 Va. 679, 684, 101 S.E.2d 641, 644 (1958) ; Colonial 
Heights v. Chesterfield County, 196 Va. 155, 82 S.E.2d 566 (1954), 
and they may maintain duplicate institutions for the provision of 
governmental services except for specified shared services, Va. Code 
Ann. §15.1-1005 (Repl. 1964). Cooperative agreements between po­
litical subdivisions are authorized, Va. Code Ann §15.1-21 (Reol 
1964).

4 Va. Code Ann. §22-89 (Repl. 1969).
6 Virginia law provides that the State Board is ultimately re­

sponsible for the administration of public free education in the 
Commonwealth, Va. Code Ann. §22-2 (Repl. 1969) ; it was required
(at times pertinent to this case) to divide the State “into appropri­
ate school divisions” of at least one county or city, each school 
division to be administered by a superintendent of schools meeting 
qualifications established by the State Board and exercising such 
powers as were conferred by the State Board, Va. Code Ann. §§22- 
30, -31, -36 (Repl. 1969). In a school division composed of more 
than one political subdivision, the Division Superintendent serves 
the school boards of each and, if separate school systems are being 
maintained, administers each system (144a, 245a, 267a-269a). The 
school boards of the independent political subdivisions constituting 
a single school division must meet jointly to select a division super­
intendent from the eligible candidates’ list approved by the State 
Board of Education, Va. Code Ann. §§22-32, -34 (RepL 1969); see 
also, 98a.



5

ceeded.6 Subsequently, on April 10, 1968, the school boards 
and governing bodies of the city and county entered into a 
four-year contract providing that the County would oper­
ate public schools for city children in return for payment 
by the City of a specified percentage of the capital and 
operating cost (32a-36a).7

6 Virginia law provided that the city and county school hoards 
might: subject to the approval of the State Board and local gov­
erning bodies, establish joint schools, Va. Code Ann. §22-7 (Repl. 
1969); operate separate school systems; establish a single school 
board for the school division and operate as a single system, again 
subject to the approval of the State Board and local governing 
bodies, Va. Code Ann. §§22-100.1, -100.2 (Repl. 1969); or by con­
tractual agreement the county might provide educational services 
for city children, Va. Code Ann. §22-99 (Repl. 1969).

On November 27, 1967, the Greensville County Board of Super­
visors had resolved that it would not approve joint operation (30a) ; 
so long as this position was maintained, the city school board’s 
remaining options were either an independent school system or 
contractual agreement.

7 Because no settlement had yet been reached, the County Board 
of Supervisors resolved on March 19, 1968 (31a) to terminate pro­
vision to city residents of all but statutorily required services unless 
a contractual agreement were accepted by the city by April 30. 
Thus, the Mayor of Emporia and the Chairman of its School Board 
testified in 1969, the contract was signed only under pressure 
(233a) and only because the failure of the boards to agree on a 
price for the schools located in the city prevented Emporia from 
operating its own school system (119a). However, the city could 
have filed suit in 1967, as it did in 1969 (237a, 242a) to establish 
its equity in the schools had it desired to operate an independent 
system, Va. Code Ann. §§15.1-1003, -1004 (Repl. 1964) ; Colonial 
Heights v. Chesterfield County, 196 Va. 155, 82 S.E.2d 566 (1954) ; 
School Bd. v. School Bd., 200 Va. 587, 106 S.E.2d 655 (1959). 
Instead, it negotiated for preferred contractual terms (see 230a).

Both the Mayor and School Board chairman said they were satis­
fied with the education provided city children by the county prior 
to the June 25, 1969 district court order (163a, 235a), and, in 
fact, the July 7, 1969 letter from the City Council to the County 
Supervisors proposing an independent system recites that the city 
signed the contract because of its judgment about educational bene­
fits of a combined school system:

In 1967-68 when the then Town of Emporia, through its gov­
erning body, elected to become a city of the second class, it



6

June 21, 1968, plaintiffs filed a Motion for Further Relief 
consistent with this Court’s ruling in Green v. County 
School Bd. of New Kent County, 391 U.S. 430 (1968) (37a). 
The district court directed the County School Board to 
demonstrate its compliance with Green or to present a plan 
to bring it into compliance (la  [Docket Entries, p. 2]). 
August 8, 1968, the board requested that freedom-of-choice 
be continued for another year while a zoning or pairing 
plan was developed (294a).* 8 The district court acquiesced 
because of the short time remaining before the start of 
the school year and because a new division superintendent 
had just been hired (50a, 182a; see 98a) but required sub­
mission of a new plan by January 20, 1969 (la, 294a). 
Again the County School Board responded (38a-45a) by 
asking that freedom of choice be continued.9 In the alter­
native, the Board proposed: to establish different cur-

was the considered opinion of the Council that the educational 
interest of Emporia citizens, their children and those of the 
citizens and children of Greensville County, could best be 
served by continuing a combined City-County school division, 
thus giving students from loth political subdivisions full bene­
fits of a larger school system (emphasis supplied) (56a).

8 The district court’s opinion sets forth enrollment statistics for 
the 1967-68 school year which show that under freedom of choice, 
no white students had elected to attend any of the five all-black 
schools, while 96 of 2568 black students had chosen to enroll in 
two predominantly white facilities (294a). Faculty desegregation 
was minimal {ibid.).

9 The board asked to modify the outstanding decree (29a) as
follows (42a) : (1) Faculty and administrators would be per­
mitted to encourage exercise of choices in favor of desegregation, 
see United States v. Hinds County School Bd., 417 F.2d 852 (5th 
Cir. 1969) ; (2) If substantial desegregation did not occur in this 
manner, elementary children would be assigned to special classes 
across raeial lines, see, e.g., United States v. Board of Educ. of 
Webster County, 431 F.2d 59 (5th. Cir. 1970) ; (3) Course dupli­
cation in the two high schools would be eliminated so as to bring 
about attendance at both facilities; (4) At least 25% of the faculty 
at each school would be of the minority race.



7

rieular programs—academic, vocational-technical, and ter­
minal-degree—at each high school and to assign students 
according to their curricular choice (43a),10 and to reassign 
black elementary students to white elementary schools on 
the basis of standardized achievement test scores.11

Following a hearing February 25, 1969, the district court 
disapproved the request to continue freedom of choice and 
took the board’s alternative proposal under advisement (la ) 
pending submission of enrollment projections under the 
testing plan based on student scores (51a). On March 18, 
1969, petitioners filed their own proposal to desegregate 
the Greensville County schools by pairing (46a-47a). At 
the conclusion of an evidentiary hearing on June 23, 1969, 
the district court announced orally (49a-53a) that it would 
disapprove the school board’s alternative plan because it 
would “ substitute a segregated—one segregated system for 
another segregated school system and that is all it is” (51a). 
The court directed implementation of the plan proposed 
by the plaintiffs:

The Court directs therefore that the proposed plan 
of desegregation submitted by the plaintiffs is to be 
put in effect and a mandatory injunction directing the 
School Board to put that plan in effect commencing 
September would be entered.

Now, the Court will consider any amendments to it 
so as not to preclude a better plan, but so there is no 
further delay and so we don’t come up in August and

10 See Lemon v. Bossier Parish School Bd., 446 F.2d 911, 444 
F.2d 1400 (5th Cir. 1971).

11 See Anthony v. Marshall County Bd. of Educ., 419 F.2d 1211 
(5th Cir. 1969) ; United States v. Sunflower County School Dist., 
430 F.2d 839 (5th Cir. 1970) ; United States v. Tunica County 
School Dist., 421 F.2d 1236 (5th Cir. 1970) ; United States v. 
Board of Educ. of Lincoln County, 301 F. Supp. 1024 (S.D. Ga. 
1969) ; Moses v. Washington Parish School Bd., Civ. No. 15973 
(E.D. La., August 9, 1971).



8

say, “Well, now, we have got a plan but can’t do it 
for a year,” the School Board is directed today, now, 
to commence their work to do whatever is necessary 
to put in effect the plan for desegregation submitted 
by the plaintiff. (53a)

June 25, 1969, a written order disapproving the board’s 
plan and mandatorily enjoining implementation of the 
pairing plan proposed by plaintiffs was entered (54a-55a).12

Emporia Moves to Operate a Separate System

On July 7, 1969—twelve days after entry of the district 
court order requiring pairing of schools in Greensville 
County—the City Council of Emporia wrote to the Greens­
ville County Board of Supervisors and School Board (56a- 
60a) formally announcing the City’s intention to operate 
a school system separate from Greensville County effective 
August 1, 1969 (57a). The Council proposed that the April 
10, 1968 contract be terminated by mutual agreement (58a), 
that a new contract be drafted to cover shared services 
other than public schools, including a procedure to deter­
mine the equity of the city and county in their school build­
ings (59a-60a), and that pending such determinations, the 
title to school buildings located within Emporia be trans­
ferred to the City immediately so that its school system 
could begin operation (60a). As part of its proposal, the 
Emporia Council offered to accept county students on a 
tuition basis in its separate school system (ibid.).

12 That order was subsequently modified in accordance with the 
comments of the district court quoted next above. On July 23, 
1969, the County School Board filed a motion to amend the June 
25 judgment by substituting a different plan (76a-79a). A hear­
ing was held July 30, 1969 at which yet another version of a 
pairing plan was proposed by the County School Board and 
adopted by the district court (162a, 174a, 295a).



9

The Council’s letter clearly indicated that the source of 
its concern was the desegregation decree, rather than any 
longstanding dissatisfaction with the county school system:

In 1967-68 when the Town of Emporia, through its 
governing body, elected to become a city of the second 
class, it was the considered opinion of the Council that 
the educational interest of Emporia Citizens, their 
children and those of the citizens and children of 
Greensville County, could best be served by continuing 
a combined City-County school division, thus giving 
students from both political subdivisions full benefits 
of a larger school system.
The Council was not totally unaware of a Federal Court 
suit against Greensville County existing at that time, 
regarding school pupil assignments, pupil attendance, 
and etc., but they did not fully anticipate decision by 
the court which would seriously jeopardise the scholas­
tic standing and general quality of education affecting 
City students attending the combined school system.
# # #

The pending Federal Court action, at the time of Em­
poria’s transition from a town to a city, was finally 
decided by the court on June 23, 1969. The resulting 
order REQUIRES massive relocation of school classes, 
excessive bussing of students and mixing of students 
within grade levels with complete disregard of indi­
vidual scholastic accomplishment or ability.

An in-depth study and analysis of the directed school 
arrangement reflects a totally unacceptable situation to 
the Citizens and City Council of the City of Emporia. 
# * #
. . .  In these preliminary meetings, the City expressed 
a sincere need for an increase in its geographical



10

boundaries through extensive annexation in order to 
provide an adequate tax basis to support an indepen­
dent school system. The Council is of the opinion 
annexation of portions of land beyond the City limits 
is most desirable in the interest of the people involved 
and the City. A  careful preliminary study, including 
all facets o f school operation and with particular 
attention to objections raised by County Officials, has 
been conducted and the facts indicate that it may be 
feasible to operate a City School System without imme­
diate annexation (emphasis supplied) (56a-58a).

The letter did not request that the County Board propose 
any alternative desegregation plan to the district court.

July 9, 1969, a special City Council meeting was held, 
which the Mayor announced was for the purpose of “ ‘estab­
lishing a City School System’ ” (61a). The minutes reflect 
that most of the meeting was held in executive session. 
July 14, 1969, the City Council met again in special ses­
sion; the minutes (62a-66a) reflect the purpose of the 
meeting was “to take action on the establishment of a City 
School System, to try and save a school system for the City 
of Emporia and Greensville County”  (emphasis supplied) 
(62a). The Mayor is reported in the minutes to have said, 
‘“ it’s ridiculous to move children from one end of the 
County to the other end, and one school to another, to 
satisfy the whims of a chosen few.’ He said, ‘The City 
of Emporia and Greensville County are as one, we could 
work together to save our school system ’ ” (emphasis sup­
plied) (ibid.).

At the July 14 meeting, the City School Board chairman 
reported the racial composition of each school under the 
plan approved by the district court. After the Mayor 
advised the Council that the County Supervisors had de-



11

dined to transfer school buildings within Emporia to the 
city for fear of “placing themselves in contempt of the Fed­
eral Court order” (63a), the Council discussed possible 
termination of the contract by mutual agreement or annex­
ation. The City School Board chairman told the Council 
that if the City had title to the three school facilities lo­
cated in Emporia, 500 county students could be accommo­
dated in addition to city residents (64a~65a) ;1S and finally, 
the Council voted unanimously to direct the City Attorney 
to take the necessary steps to determine the city’s equity in 
county holdings (including schools) (66a).

The County School Board met two days later and 
reiterated that while it would appeal the district court’s 
order and also seek to change the terms of the order, it 
would not transfer facilities to Emporia or assist in the 
creation of a separate system because

this Board believes that such action is not in the best 
interest of the children of Greensville County. . . . 
(67a-69a).

July 17, the Emporia City School Board met to adopt 
a resolution requesting designation of Emporia as a 
separate school division (70a-72a). Again, the resolution 
demonstrates that the source of concern was the desegre­
gation decree.13 14 A similar resolution was adopted by the 
City Council on July 23, 1969 (73a-75a).

13 There were 728 white students residing in the county area 
outside Emporia (304a).

14 W hereas it is the considered opinion of the Board that the 
requirements under the decree of the Federal District Court 
for the Eastern District of Virginia in a suit to which the 
County of Greensville is a party will result in a school system 
under which the school children of the City of Emporia will 
receive a grossly inadequate education; and
W hereas under the decree aforementioned, there will be sub­
stantial overloading of certain school buildings and substan-



12

July 30, 1969, the City School Board adopted a plan 
to hold registration for the 1969-70 school year August 
4-8, 1969 although the State Board had not made any 
ruling on the request for separate school division status 
(80a-81a). The registration notice invited applications 
from nonresidents on a tuition basis (82a).

At the July 30 meeting the city school board also in­
structed its acting clerk to investigate the availability of 
churches and vacant buildings for use should the City be 
unsuccessful in obtaining title to the school buildings in 
Emporia (81a).

On August 1, 1969, by leave of the district court (83a), 
the petitioners herein filed a Supplemental Complaint 
adding as defendants in the pending action, the City 
Council of Emporia and the School Board of the City of 
Emporia (84a-87a). The Supplemental Complaint alleged 
that establishment of a separately operating school system 
for the City of Emporia or the withholding by the City of 
the monies due Greensville County pursuant to the con­
tract would “frustrate the execution of this [District] 
Court’s order and the efforts of the County School Board 
of Greensville County to implement the above mentioned 
plan [approved by the district court on July 30, 1969] 
for the operation of the public school system which here­
tofore has served children residing in the City of Emporia,” 
and sought to restrain the City Council and School Board 
from taking any acts which would interfere with execution 
of the outstanding district court order (86a). On August 5,

tial underuse of other school buildings at an excessive cost to 
both the County and the City, the cost of school transportation 
will be exaggerated out of all need in that pupils will be 
assigned to schools on a basis other than that of proximity 
the City s contribution toward education will be substantially 
increased without any additional benefit in education to its 
children, . . . .  (71a)



13

the Emporia School Board made “ assignments” of grades 
1-7 to the Emporia Elementary School and grades 8-12 
to the Emporia (Greensville County) High School, con­
tingent upon those buildings being made available to the 
City School Board for the 1969-70 school year (89a).

The matter came before the district court for hearing 
upon petitioners’ prayer for a preliminary injunction on 
August 8, 1969 (90a-189a). Various exhibits were in­
troduced, including the minutes of the school board’s and 
governing bodies’ meetings, and testimony was taken.

The Division Superintendent of Schools, who would be 
responsible for administering a separate district unless 
the State Board created a new school division, testified 
that he had no plans to implement a separate district and 
had met with the city school board only once, August 5, 
1969 (92a, 98a-99a). He did have statistics showing that 
the total student population in the combined system was, 
he said, approximately 63% black, while the city students 
were approximately 50% black and county students about 
70% black (109a).

The Mayor of Emporia stated that the City Council 
had not discussed the establishment of a separate city 
school system at any of its meetings prior to July, 1969 
(118a) nor had the Council or the City School Board 
attempted to intervene in this litigation to present their 
views (128a). Despite what he referred to as eight years 
of antagonism between Emporia and Greensville County 
(159a), he said the City had been satisfied with the County’s 
school operation prior to the district court’s decree (163a). 
The June 25 order precipitated the desire to operate a 
city system because of white flight which was anticipated 
in response to the decree (121a-122a, 167a). He said he 
had doubts about the willingness and ability of the County



14

to make the unitary system work effectively (135a) and 
“ that in order to have a well-functioning working unitary 
system in the heart of southside Virginia that it will take 
the leadership of the city government and of the leading 
city members . . (123a). It was the City’s desire, he
said, to afford city students an education superior to that 
which they would receive in the county schools operated 
pursuant to the desegregation decree (124a) but he was 
also aware that the racial composition of the city school 
system would be about 50-50 (126a) and as well that the 
buildings which the city school board hoped to acquire 
from the county were the formerly white schools, still 
predominantly white in 1968-69 (116a).15

Edward Lankford, Chairman of the Emporia School 
Board, testified that his board met officially only to select 
a division superintendent with the Greensville County 
Board, but otherwise had “nothing to do with the county 
system” even while the contract was in force (140a, 145a). 
He said the City Board had been dissatisfied with the 
contract from its inception although they had not acted 
(147a) until the desegregation decree requiring attendance 
at several different schools during the twelve grades of 
a child’s education was entered (148a). He agreed with 
the Mayor that successful operation of a unitary system 
required leadership which in his opinion the city could 
provide but the county could not (153a), and he said there 
was a “definite possibility” that city residents would be 
willing to pay higher taxes to support their own school 
system (154a).

16 The 1968-69 enrollment statistics can be found in the district 
court’s opinion (298a) 98 of 2510 black students attended two
white schools while again, no white students enrolled in five all­
black schools. See n.8 supra.



15

Mr. Lankford was aware that creation of an independent 
city system wonld increase the percentage of black stu­
dents in the remaining county system and reduce the 
percentage of black students to which city students would 
be exposed (143a). He discussed the adverse effects of 
separate systems:

The Court: And it is going to have a deleterious 
effect on the students of Greensville County because 
you are going to take some of their superintendents 
and he will be responsible to two Boards and take 
buildings that they have been using, isn’t that 
correct?

The Witness: That is correct
* # #

The Court: As a matter of fact it is going to 
change the racial composition of the student popula­
tion of Greensville County, which let’s call it what 
it is, that is one of the problems in segregating 
schools, isn’t it?

The Witness: Yes, sir.
* # *

By Mr. Warriner:

Q. Now, I want to know, sir, what adverse effect, 
what adverse effect are you talking about when you 
say that there would be an adverse effect on the 
county? A. I don’t know that I could answer that. 
The question to which I answered that this would be 
an adverse effect I would like to have repeated if 
possible.

Q. It can be repeated. The Judge asked you whether 
it would have an adverse effect or a detrimental effect 
and you agreed with him. I want to know what are 
the adverse effects? A. Well, as you have pointed



16

out if the county has a surplus of school teachers 
and these teachers are willing to terminate their con­
tract to come to the city then there would he no 
adverse effect insofar as teachers are concerned.

If the county has a surplus of buildings and the 
buildings are no longer needed by the county and the 
city is willing to assume those buildings, that is no 
adverse effect.

Q. Leaving out the ifs, will the county have a sur­
plus of teachers and will the county have a surplus 
of buildings? A. In my opinion, yes, sir.

Q. All right, sir.
Then you would have no adverse effect on the 

county? A. No, sir.
# # #

Q. I want you to, if there is anything that is un- 
neighborly to the County of Greensville, I want you to 
state it. A. The only adverse effect as ashed by His 
Honor, the Judge, would be the racial ratio remain­
ing in the county. (149a, 151a-152a) (emphasis sup­
plied)

At the conclusion of the hearing, the district judge 
announced that he would grant the injunction. The court 
noted that although a year passed between the filing of the 
motion for further relief and the entry of a decree, the 
City Council and School Board made no attempts to com­
municate their wishes to the County officials or to the 
Division Superintendent (181a-182a). Following its June 
25 order, the court noted, the Mayor expressed his dis­
approval to the City Council and after being informed 
of the expected Negro enrollments at each school under 
the court-ordered plan, it was determined to establish an 
independent city system. (183a). However, the court found 
that creation of a new entity would not only interfere with



17

and disrupt execution of the plan already ordered but 
would be unconstitutional (183a) :

Under the New Kent decision this School Board had 
an obligation and a duty to take steps to see to it that 
a unitary system was entered into. All they have done 
up until now, and the Court is satisfied that while 
their motives may be pure, and it may be that they 
sincerely feel they can give a better education to the 
children of Emporia, they also have considered the 
racial balance which would be roughly 50-50 which 
which reduce the number of white students to, under 
the present plan, would attend the schools as presently 
being operated.

The Court finds that under Brown v. Board of Educa­
tion 349 U.S. 294 that these defendants, all of them, 
have an obligation that they are going to abide by.

In short, gentlemen, I might as well say what I think 
it is. It is a plan to thwart the integration of schools. 
This Court is not going to sit idly by and permit it. 
I am going to look at any further action very, very 
carefully. I don’t mind telling you that I would be 
much more impressed with the motives of these de­
fendants had I found out they had been attempting 
to meet with the School Board of Greensville County 
to discuss the formation of a plan for the past year. 
I  am not impressed when it doesn’t happen until they 
have reported to them the percentage of Negroes that 
will be in each school.

■V- 42? 4f.W W W

. . . The Court will be delighted to entertain motions 
for amendment of the plan at any time (184a-185a).

The same day the district court entered formal Findings 
of Fact and Conclusions of Law (190a-194a) as well as a



18

temporary injunction restraining “any action which would 
interfere in any manner whatsoever with the implementa­
tion of the Court’s order heretofore entered in reference 
to the operation of public schools for the student popula­
tion of Greensville County and the City of Emporia” 
(195a).

The District Court's Decision

Respondents declined to appeal from the decision grant­
ing a preliminary injunction, seeking instead to make a 
more extensive record (187a).

Pursuant to the injunction, schools in Emporia and 
Greensville County opened for 1969-70 in accordance with 
the district court’s June 30, 1969 order. The State Board 
of Education at its August 19-20, 1969 meeting, tabled 
Emporia’s request for designation as a separate school 
division “ ‘ . . .  in light of matters pending in the federal 
court’ ” (198a). The minutes of the State Board meeting 
note that “ [t]he Greensville County school board has 
passed and submitted a resolution opposing the dissolu­
tion of the present school division consisting of the county 
and the city. . . .” (ibid.).

On December 3, 1969, the Emporia School Board 
adopted a proposed 1970-71 budget prepared at its request 
by the former Superintendent of Schools of Richmond, 
Virginia (200a-201a). The budget is extensive and ex­
pensive, proposing numerous supplementary services 
(202a-223a). On December 10, 1969, the school board was 
informed that the City Council had accepted the budget 
(224a), and it proposed a desegregation plan for sub­
mission to the district court assigning grades 1-6 to the 
former Emporia Elementary School and grades 7-12 to 
the former Greensville County High School (225a). The



19

hearing on permanent relief was held December 18, 1969 
(226a-292a).

Much of the City’s evidence was repetitive of the earlier 
hearing. Mr. Lankford testified again that the city was 
dissatisfied with the contractual arrangements because it 
had no control over such matters as hiring, salaries or 
curriculum (242a). He said he had been satisfied with the 
education afforded city students by the county prior to 
the pairing order (235a) but that order required additional 
transportation expenditures and he feared the County 
School Board would be unwilling to raise the additional 
revenues (236a).

Emporia’s Mayor also repeated his opinions that the 
county would not adequately support a unitary school 
system but the city would (289a-290a) and that without 
the creation of a separate system the city would lose white 
students to private schools during the 1970-71 school year 
(291a).

However, armed with the detailed budget developed and 
adopted after the district court’s temporary injunction 
had been entered, both witnesses stressed that the city 
desired to operate an educational system superior to that 
which the county would provide. The City also presented 
the testimony of a Professor of Education, Dr. Neil Tracey, 
in support of this claim.

Dr. Tracey testified that it was his “understanding” 
that he was not serving the City in “ any attempt to 
resegregate or to avoid desegregation” (269a). He com­
pared the educational programs of Greensville County 
with those proposed by the Emporia School Board’s 1970- 
71 budget without reference to the racial composition 
of the two systems because, he said,



20

. . .  my basic contention is and has been, that elimina­
tion of the effects of segregation must be an educa­
tional solution to the problem and that no particular 
pattern of mixing has in and of itself, has any desir­
able effect. . . . The problem is to permit the Negro 
child to integrate into society both in terms of general 
social problems and in terms of economic patterns. . . . 
(emphasis supplied) (270a).

Dr. Tracey preferred the Emporia budget because, he said, 
the county educational program did not include the kind 
of supplemental, supportive projects he thought were 
required to make integration work. He did not feel the 
county’s school budget was high enough, for example 
(274a). However, he did recognize problems which might 
be created by separation: Emporia could draw the better 
county teachers off (281a); the range of exposure afforded 
the isolated, rural children in the county would be nar­
rowed (284). In fact, Dr. Tracey concluded that if the 
county were to support what he considered an adequate 
educational program, he would favor continuation of the 
consolidated unit (285a).

In a careful opinion issued March 2, 1970 (293a-309a), 
the district court weighed the competing claims. The court 
noted that petitioners’ supplemental complaint sought 
relief in the nature of an injunction against third parties 
to protect the court’s decree, and that after issuance of the 
temporary injunction the City had answered the Supple­
mental Complaint (196a-197a) “denying the allegation that 
the plan for separation would frustrate the efforts of the 
Greensville County School Board to implement the plan 
embraced by the Court’s order” (293a, 299a). Since, ob­
viously, the City’s plan to operate a separate school system 
for city residents would prevent execution of the plan



21

which had been ordered, the court pointed out that the 
issue before it was not solely the plaintiffs’ right to relief 
protecting the earlier decree:

. . .  at the December 18th hearing [, i]ssues explored 
went beyond the question whether the city’s initiation 
of its own system would necessarily clash with the 
administration of the existing pairing plan; indeed, 
there seems to be no real dispute that this is so. The 
parties went on to litigate the merits of the city’s 
plan, developing the facts in detail with the help of an 
expert educator. Counsel for the city stated that “ at 
the conclusion of the evidence today, we will ask Your 
Honor to approve the assignment plan for the 1970-71 
school year and to dissolve the injunction now, against 
the city, effective at the end of this school year,” 
Tr., Dec. 18, at 11 (298a-299a).

The district court concluded that the respondents had 
standing to seek amendment of the July 30 decree (299a- 
303a) and proceeded to the merits of the assignment plan 
proposed by the City.

The court described the grade assignments, noting that 
the City expected enrollments 10% above the number of 
city residents enrolled in the combined system during 
1969-70 because “ ‘some pupils now attending other schools 
would return to a city-operated school system’ ” (206a, 
297a).16 The district judge found that the budget for the 
city system “clearly contemplates a superior quality educa­
tional program” requiring “higher tax payments by city 
residents” (297a) ; however, the court also remarked upon 
the difficulties which would arise with the establishment 
of two separate systems serving Greensville County and

16 The City did not now propose to accept county students on a 
tuition basis without approval of the district court (225a).



22

Emporia: a “substantial shift in the racial balance,”' a 
city high school of less than optimum size, isolation of rural 
county students from exposure to urban society, disrup­
tion of teaching staff, and withdrawal of city leadership 
from the county’s educational program.17 The district

17 The establishment of separate systems would plainly cause a 
substantial shift in the racial balance. The two schools in the 
city, formerly all-white schools, would have about a 50-50 
racial makeup, while the formerly all-Negro schools located in 
the county which, under the city’s plan, would constitute the 
county system, would overall have about three Negro students 
to each white. As mentioned before, the city anticipates as 
well that a number of students would return to city system 
from private schools. These may be assumed to be white, and 
such returnees would accentuate the shift in proportions.
* * * #
The impact of separation in the county would likewise be 
substantial. . . .  At each level the proportion of white pupils 
falls by about four to seven percent; at the high school level 
the drop is much sharper still.

In Dr. Tracey’s opinion the city’s projected budget, including 
higher salaries for teachers, a lower pupil-teacher ratio, kinder­
garten, ungraded primary schooling, added health services, 
and vocational education, will provide a substantially superior 
school system. He stated that the smaller city system would 
not allow a high school of optimum size, however. Moreover, 
the division of the existing system would cut off county pupils 
from exposure to a somewhat more urban society. In his opin­
ion as an educator, given community support for the pro­
grams he envisioned, it would be more desirable to apply them 
throughout the existing system than in the city alone.
While the city has represented to the Court that in the opera­
tion of any separate school system they would not seek to hire 
members of the teaching staff now teaching in the county 
schools, the Court does find as a fact that many of the system’s 
school teachers live within the geographical boundaries of the 
city of Emporia. Any separate school system would undoubt­
edly have some effect on the teaching staffs of the present 
system.
* # #
The inevitable consequence of the withdrawal of the city from 
the existing system would be a substantial increase in the pro-



23

court concluded that it should resolve the matter by ap­
proving the plan most likely to bring about the successful 
dismantling of the dual school system in Greensville 
County and Emporia:

. . . This is not to say that the division of existing 
school administrative areas, while under desegregation 
decree, is impermissible. But this Court must with­
hold approval “ if it cannot be shown that such a 
plan will further rather than delay conversion to a 
unitary, nonracial, nondiscriminatory school system,” 
Monroe v. Board of Commissioners, supra, 391 U.S. 
459, 88 S.Ct. 1705. As a court of equity charged with 
the duty of continuing jurisdiction to the end that there 
is achieved a successful dismantling of a legally im­
posed dual system, this Court cannot approve the pro­
posed change. (308a).* 18

portion of whites in the schools attended by city residents, and 
a concomitant decrease in the county schools. The county offi­
cials, according to testimony which they have permitted to 
stand unrebutted, do not embrace the court-ordered unitary 
plan with enthusiasm. If secession occurs now, some 1,888 
Negro county residents must look to this system alone for 
their education, while it may be anticipated that the propor­
tion of whites in county schools may drop off as those who can 
register in private academies. This Court is most concerned 
about the possible adverse impact of secession on the effort, 
under Court direction, to provide a unitary system to the 
entire class of plaintiffs (304a-306a, 308a).

18. . . Assuming arguendo, however, that the conclusions afore­
mentioned are valid, then it would appear that the Court 
ought to be extremely cautious before permitting any steps 
to be taken which would make the successful operation of the 
unitary plan even more unlikely.
The Court does find as a fact that the desire of the city lead­
ers, coupled with their obvious leadership ability, is and will 
be an important facet in the successful operation of any court- 
ordered plan.
^



24

While the district court discussed the possible motives of 
the respondents, it held that the question of motive was 
not controlling.19

If Emporia desires to operate a quality school system for city 
students, it may still be able to do so if it presents a plan not 
having such an impact upon the rest of the area now under 
order. The contractual arrangement is ended, or soon will be. 
Emporia may be able to arrive at a system of joint schools, 
within Virginia law, giving the city more control over the 
education its pupils receive. Perhaps, too, a separate system 
might be devised which does not so prejudice the prospects 
for unitary schools for county as well as city residents. This 
Court is not without the power to modify the outstanding 
decree, for good cause shown, if its prospective application 
seems inequitable (emphasis supplied) (306a, 309a).

19 The motives of the city officials are, of course, mixed. . . .
* * *
Dr. Tracey testified that his studies concerning a possible sep­
arate system were conducted on the understanding that it was 
not the intent of the city people to “resegregate” or avoid 
integration. The Court finds that, in a sense, race was a fac­
tor in the city’s decision to secede. . . . Mr. Lankford stated 
as well that city officials wanted a system which would attract 
residents of Emporia and “hold the people in public school 
education, rather than drive them into a private school * * * 
Tr. Dec. 18, at 28.
# * #
This Court’s conclusion is buttressed by that of the district 
court in Burleson v. County Board of Election Commissioners, 
308 P. Supp. 352 (E.D. Ark., Jan. 22, 1970). There, a section 
of a school district geographically separate from the main 
portion of the district and populated principally by whites 
was enjoined from seceding while desegregation was in prog­
ress. The Court so ruled not principally because the section’s 
withdrawal was unconstitutionally motivated, although the 
Court did find that the possibility of a lower Negro popula­
tion in the schools was “a powerful selling point,” Burleson 
v. County Board of Election Commissioners, supra, 308 F. 
Supp. 357. Rather, it held that separation was barred where 
the impact on the remaining students’ rights to attend fully 
integrated schools would be substantial, both due to the loss 
of financial support and the loss of a substantial proportion of 
white students. This is such a case (emphasis supplied) (305a- 
309a).



25

The district court’s order of March 2 (310a) continued 
in effect its injunction against interference with the prior 
order and denied the City’s motion to modify the decree.

The Court of Appeals’ Ruling

The majority opinion for the Court of Appeals, reversing 
the judgment of the district court (311a-319a) proceeded 
from different premises. In the first part of the opinion 
(311a-313a), the Court announces a general rule for de­
termining* whether division of a school district under court 
order to desegregate into two or more new entities is con­
stitutionally permissible. The Court of Appeals refers to 
this Court’s opinion striking down a racially gerrymandered 
legislative district in Gomillion v. Lightfoot, 364 U.S. 339 
(1960) and extracts the principle that the enactment there 
was voided because of its discriminatory legislative pur­
pose, which this Court inferred from the difference in racial 
composition between the old and the new district. This 
principle, says the majority, underlies school desegregation 
decisions voiding an all-black Arkansas school district cre­
ated in 1949, Raney v. County Bd. of Educ. of Sevier 
County, 410 F.2d 920 (8th Cir, 1969) and prohibiting estab­
lishment of a predominantly white “ splinter” school dis­
trict in 1970, Burleson v. County Bd. of Election Comm’rs 
of Jefferson County, 308 F. Supp. 352 (E.D. Ark.), aff’d per 
curiam 432 F.2d 1356 (8th Cir. 1970).

In general, therefore, the Court holds that the permissi­
bility of creating new districts from old ones depends upon 
whether the “primary purpose . . .  is to retain as much of 
separation of the races as is possible” (313a). Where the 
result justifies an inference of purpose, that is the end of 
the matter. Where it does not, the courts are to look to 
other evidence in forming their judgment of the “primary 
purpose” for establishing new districts.



26

The Court of Appeals applies these principles to Emporia 
in the second part of its opinion. It holds (without regard 
to the district court’s finding of a “substantial shift, in racial 
balance” [emphasis supplied] [304a]) that since “the sep­
aration of the Emporia students would create a shift of the 
racial balance in the remaining county unit of 6 per cent” 
(316a), no inference of primary discriminatory purpose can 
be drawn.

The majority notes other evidence that the primary 
motive was not racial: the district court’s findings that 
Emporia’s motives were mixed (racial and non-racial), Dr. 
Tracey’s “understanding,” and Emporia’s “uncontradicted” 
testimony (which the appellate court fails to note was re­
jected by the district court as unsubstantiated opinion) that 
the County would not raise sufficient revenues to properly 
operate the system.

Noting the friction between city and county caused by 
Virginia’s “unusual” political structure, the majority holds 
that federal courts ought not interfere with state or local 
determinations of what structures may best be adopted to 
fund public education in the absence of “primary motive” 
to discriminate (318a); thus, the Court of Appeals intimates 
no review of the alternatives available to Emporia in de­
ciding that creation of a separate city district is constitu­
tional and was improperly enjoined.

Judge Winter dissented from the majority (336a-346a). 
His opinion views the case (and its companions) as being 
controlled by the principles enunciated in Green v. County 
School Bd. of New Kent County, 391 U.S. 430 (1968) (326a- 
338a) placing a “heavy burden” upon state authorities who 
seek to implement a desegregation plan “ less effective” 
than another before the court. Specifically, Judge Winter 
found ample support in the record for characterizing the 
separate-district plan as less effective than the prior district



27

court order: the delay -which would have been occasioned 
by the adoption of new plans in August, 1969; the substan­
tial change of racial proportions (“ the creation of a sub­
stantially whiter haven in the midst of a small and heavily 
black area” ) ; and the effect on county black students of the 
excision from their school system of a significant part of 
the white population with whom they would have attended 
classes.

Judge Winter would find that the City had failed to meet 
its heavy burden to justify this less effective plan since its 
evidence at best showed both educational advantages and 
disadvantages flowing from the new scheme and revealed 
both racial and nonracial motives behind its adoption (341a). 
Judge Winter would reject the “primary motive” test and 
affirm because of the adverse impact occasioned by creation 
of new districts (346a).

Judge Sobeloff did not participate in the Emporia ease 
because of illness, but in his dissent from a companion 
case, joined by Judge Winter, he rejected the “primary 
motive” test.

Judge Sobeloff scored the direction to district courts to 
weigh the motives of state officials, noting that

resistant white enclaves will quickly learn how to struc­
ture a proper record—shrill with protestations of good 
intent, all consideration of racial factors muted beyond 
the range of the court’s ears, [footnote omitted] (322a).

He suggested that these cases, like other equal protection 
suits in which state action has a racially discernible effect, 
were best considered by requiring the State to justify the 
racially disparate treatment as being required by a com­
pelling state interest (322a-327a). Finally, Judge Sobeloff 
predicted the unworkability of the “primary motive” test:



2 8

If, as the majority directs, federal courts in this circuit 
are to speculate about the interplay and the relative 
influence of divers motives in the molding of separate 
school districts out of an existing district, they will be 
trapped in a quagmire of litigation. The doctrine 
formulated by the court is ill-conceived, and surely will 
impede and frustrate prospects for successful desegre­
gation. Whites in counties heavily populated by blacks 
will he encouraged to set up, under one guise or an­
other, independent school districts in areas that are 
or can be made predominantly white.

It is simply no answer to a charge of racial discrimina­
tion to say that it is designed to achieve “quality edu­
cation.” Where the effect of a new school district is 
to create a sanctuary for white students, for which no 
compelling and overriding justification can be offered, 
the courts should perform their constitutional duty and 
enjoin the plan, notwithstanding professed benign ob­
jectives (335a-336a).

Summary of Argument

I
The district court had before it two alternatives to de­

segregate a dual school system which had formerly served 
students of both Greensville County and the City of Em­
poria : one involving pairing of all the schools, and another 
involving separation into a county district and a city district 
of differing racial compositions, with the schools paired 
within each system. The lower court concluded the racial 
shift was “ substantial” and that splitting the unit would 
have other adverse impact upon the county system, and 
ordered operation as a single unit. This was a proper 
remedial choice within the equitable discretion of the dis­



trict court which should not have been overturned by the 
Court of Appeals.

II

The Court of Appeals presumed that State power to 
create new school districts was plenary, even where there 
was some interference with federal court desegregation 
decrees, unless the “primary motivation” was the preser­
vation of segregation. That is the wrong test; it follows 
neither from this Court’s school desegregation rulings nor 
from other decisions interpreting the equal protection 
clause of the Fourteenth Amendment, and it is incapable 
of rational application in the district courts.

III

Even if the determination of motive is a proper inquiry, 
the Court of Appeals should have remanded the ease to 
the district court, which had not been concerned with the 
issue at the trial. The Court of Appeals’ own determina­
tion of the “primary motivation” behind establishment of 
a separate city school system cannot be supported by a 
full examination of the record.



30

ARGUMENT

I.

The District Court Properly Ignored Newly Drawn 
Political Boundaries in Framing a Remedial Decree to 
Disestablish School Segregation Which Had Been Main­
tained Without Regard to the Same Political Boundaries.

If this were a case involving but one school district, 
which operated seven schools, and the district court had 
rejected a student assignment plan under which the two 
formerly white schools would be 50% white, and the five 
formerly black schools would be 70% black, it would not 
be before this Court. Compare Brunson v. Board of Trus­
tees, 429 F.2d 820 (4th Cir. 1970). Here two school districts 
are involved—the Greensville County district and the Em­
poria City school district (which has existed only since 
1967). From 1967 until 1969 that city school district re­
mained a part of the county system for student assignment 
purposes, and under the free choice plan white students 
throughout the county traversed Emporia’s boundaries 
daily to attend the white schools located in the city. We 
submit that the district court correctly required that city 
and county students continue to traverse those boundary 
lines in order to attend classes in a fully integrated school 
system.20

20 It is interesting to note that Virginia historically sent black 
students across city or county lines in order to preserve segrega­
tion. See Buckner v. County School Bd. of Greene County, 332 
F.2d 452 (4th Cir. 1964) ; School Bd. of Warren County v. Kilby, 
259 F.2d 497 (4th Cir. 1958) ; Goins v. County School Bd. of 
Grayson County, 186 F. Supp. 753 (W.D. Va. 1960), stay denied, 
282 F.2d 343 (4th Cir. 1960) ; Crisp v. County School Bd. of 
Pulaski County, 5 Race Eel. L. Rep. 721 (W.D. Va. 1960) ; Walker 
v. County School Bd. of Floyd County, 5 Race Rel. L, Rep. 714 
(W.D. Va. 1960) ; Corbin v. County School Bd. of Pulaski County, 
177 F.2d 924 (4th Cir. 1949).



31

Greensville County maintained rigid school segregation 
for over a decade after this Court’s rulings in Brown v. 
Board of Educ., 347 IT.S. 483 (1954), 349 U.S. 294 (1955). 
From 1965 until 1969 the desegregation of its schools was 
token, under a freedom of choice plan. After Green v. 
County School Bd. of New Kent County, 391 U.S. 430 
(1968) the county was ordered to develop a plan to 
effectively desegregate its schools, but instead it postponed 
the disestablishment of the dual school system for yet 
another year by repeatedly requesting delays and by 
proposing various stratagems to preserve segregation. 
Finally, in the summer of 1969 the district court ordered 
complete desegregation by pairing.

Only then, and without even so much as notice to the 
district court, did Emporia officials seek to separate a city 
school system from the rest of the county. Approximately 
one month before the scheduled opening of classes, the 
district court heard city officials who had no buildings, 
no specific plans for school operation, and no teachers 
under contract, insist that Emporia students should not 
attend classes pursuant to the court’s order. The district 
court enjoined interference with the order.

Emporia renewed its efforts toward creation of a city 
system the next school year; the district court concluded 
that the attendance plan envisioned by the city would 
create a substantial racial disproportion between schools 
in the city and the county and would otherwise impede the 
desegregation process. The court refused to modify its 
earlier decree.

The district court’s treatment of city and county as a 
combined school unit for purposes of its order was a 
conscientious exercise of its equitable discretion in framing 
a remedy for unconstitutional school segregation, of the 
sort this Court approved in Swann v. Charlotte-MecMen-



32

burg Bd. of Educ., 402 U.8. 1 (1971). While that case had 
not been decided at the time, Green v. County School Bd. 
of New Kent County, supra, mandated federal district 
courts to assess proposed school desegregation plans by 
their efficacy, and to select that plan which offers to bring 
about the greatest amount of desegregation unless there 
were very compelling reasons for preferring another:

Of course, where other, more promising courses of 
action are open to the board, that may indicate a lack 
of good faith; and at the least it places a heavy burden 
upon the board to explain its preference for an ap­
parently less effective method.

391 U.S. at 439 (emphasis supplied).

Here the district judge acted in accordance with the 
principles of Green by rejecting the city’s scheme to place 
a substantially greater percentage of white students in the 
former white schools than in the former black schools. 
As this Court said, 391 IJ.S. at 435:

The pattern of separate “white” and “Negro” schools 
in the New Kent County school system established 
under compulsion of state laws is precisely the pattern 
of segregation to which Brown I  and Brown 11 were 
particularly addressed, and which Brown 1 declared 
unconstitutionally denied Negro school children equal 
protection of the laws, (emphasis supplied in part)

And cf. Swann, supra, 402 IJ.S. at 26: “ [T ]o assure a 
school authority’s compliance with its constitutional duty 
warrants a presumption against schools that are substan­
tially disproportionate in their racial composition”  (empha­
sis supplied).21

21 The defect of the city school board’s plan was not that it failed 
to achieve exact racial balance, Swann, supra, 402 U.S. at 24, but



33

This Court has emphasized the breadth of the remedial 
equitable discretion accorded district courts in school 
desegregation cases. E.g., United States v. Montgomery 
County Bd. of Educ., 395 U.S. 225 (1969); Swann v. 
CJiarlotte-Mecklenburg Bd. of Educ., supra. Swann re­
jected a limitation of “ reasonableness” placed upon lower 
court judges’ discretion by the Fourth Circuit. Here the 
limit seems to turn upon the reviewing tribunal’s judgment 
of substantiality. In both instances the appellate court 
improperly restricted the ability of the district courts to 
supervise the desegregation process, see Raney v. Board 
of Educ. of Gould, 391 U.S. 443, 449 (1968).

In cases involving the enforcement of constitutional 
rights, federal courts are not bound to follow state laws 
(and hence state law created boundary lines) in effectuat­
ing adequate remedies. E.g., Haney v. County Bd. of Educ. 
of Sevier County, 429 F.2d 364, 368 (8th Cir. 1970); United 
States v. Duke, 332 F.2d 759 (5th Cir. 1964); compare 
Griffin v. County School Bd. of Prince Edward County, 377 
U.S. 218 (1964) with Griffin v. Board of Supervisors of 
Prince Edward County, 203 Va. 321, 124 S.E.2d 227 (1962).

The discretion of the district courts in enforcing the 
constitutional rights of Negro schoolchildren must extend 
to crossing state political boundary lines, especially where, 
as here, the lines are of recent origin and were readily 
bridged to maintain segregation. The Fifth and Eighth 
Circuits have sustained such power.

that in this small system consisting of seven school buildings 
clustered in or near Emporia (see 132a-133a), the traditional ra­
cial identities of the schools would be maintained by the pattern 
of student assignment; the racial identity of no school is elim­
inated.



34

In Lee v. Macon County Bd. of Educ., No. 30154 (5th 
Cir., June 29, 1971) (slip op. at pp. 11-12) (S.A. lla-12a) :22

School district lines within a state are matters of 
political convenience. It is unnecessary to decide 
whether long-established and racially untainted bound­
aries may be disregarded in dismantling school 
segregation. New boundaries cannot be drawn where 
they would result in less desegregation when formerly 
the lack of a boundary was instrumental in promoting 
segregation. Cf. Henry v. Clarks dale Municipal Sep­
arate School District, 5 Cir. 1969, 409 F.2d 683, 688, 
n. 10.

Oxford in the past sent its black students to County 
Training. It cannot by drawing new boundaries dis­
sociate itself from that school or the county system. 
The Oxford schools, under the court-adopted plan, 
supported by the city, would serve an area beyond the 
city limit of Oxford. Thus, the schools of Oxford 
would continue to be an integral part of the county 
school system. The students and schools of Oxford, 
therefore, must be considered for the purpose of this 
case as a part of the Calhoun County School system, 
(emphasis in original)

Another panel of the Fifth Circuit in Stout v. Jefferson 
County Bd. of Educ., 448 F.2d 403, 404 (5th Cir. 1971) (S.A. 
23a-24a), involving a brand new district, quoted this Court’s 
decision in North Carolina State Bd. of Educ. v. Swann, 402 
U.S. 43, 45 (1971), and held:

22----The decision has not yet been reported but it was reprinted 
as an appendix to petitioners’ Supplemental Brief in Support of 
Petition for Writ of Certiorari, and citations in the form “S.A. 
------ •” are to that document.



35

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

Likewise, where the formulation of splinter school 
districts, albeit validity created under state law, have 
te effect of thwarting the implementation of a unitary 
school system, the district court may not, consistent 
with the teachings of Swann v. Charlotte-Meclclenburg, 
supra, recognize their creation, [footnotes omitted]

And in Burleson v. County Bd. of Election Comm’rs of 
Jefferson County, 308 F. Supp. 352, 357 (E.D. Ark.), aff’d 
per curiam 432 F.2d 1356 (8th Cir. 1970), the court held:

The Area residents do not want to move out of the 
District; they want to move the District and its 
problems away from themselves. The Court does not 
think that they can be permitted to avoid the supposed 
benefits or escape the supposed burdens of the Dollar­
way litigation so easily, or that in the existing circum­
stances a majority of the residents of the Area can 
deprive other residents of their present right to attend 
fully integrated schools at Dollarway.

No resident of the Area is required to remain there. 
No resident of the Area is required to send his children 
to the District’s schools. But at this time the residents 
of the Area as a class cannot be permitted to use the 
Slate’s laws and procedures to take the Area out of the 
District, (emphasis supplied)



36

The unsoundness of the Fourth Circuit’s approach is 
demonstrated by comparing this case to Burleson, supra. 
There, formation of a separate system would have increased 
the remaining school system’s black population only 2%, 
308 F. Supp. at 356, but the district court held this “will 
substantially increase the racial imbalance in the District’s 
student bodies” (ibid.) and the Eighth Circuit affirmed “ on 
the basis of the district court’s opinion,” 432 F.2d 1356. 
Here the district court found a 6% increase to be a “ sub­
stantial shift” but the Fourth Circuit said it was of no 
significance.

Obviously the district courts, closest to the litigation, are 
in the best position to determine whether school populations 
are, in the context of specific school systems, substantially 
disproportionate, or whether the integrity of their desegre­
gation decrees is jeopardized. The appellate courts should 
defer to the exercise of the district courts’ discretion where 
the lower courts have sought to further the desegregation 
process.

That is the approach of the Fifth Circuit. See Lee v. 
Macon County Bd. of Educ., supra, slip op. at p. 11 (S.A. 
11a):

For purposes of relief, the district court treated the 
Calhoun County and Oxford City systems as one. We 
hold that the district court’s approach was fully within 
its judicial discretion and was the proper way to handle 
the problem raised by Oxford’s reinstitution of a sep­
arate school system.

It is the approach which should have been adopted below.



37

II.

The “ Primary Motive”  Standard Announced by the 
Court Below Is 111 Conceived and 111 Suited to School 
Desegregation Cases.

The opinion of the majority below announces a new rule 
for school desegregation cases, one virtually without prece­
dent in our jurisprudence and lacking either analytical or 
pragmatic support. The rule adopted by the court below 
provides, in the contest of the federal courts’ responsibility 
for the effective enforcement of the Fourteenth Amendment, 
that the constitutionality of changes in school district or­
ganization and attendance patterns shall depend upon ex­
amination of the motives of those supporting the changes. 
If a district court concludes the primary motive was to 
preserve as much segregation as possible, it may enjoin 
formation of a new unit; if, as in this case, the lower court 
finds both racial and non-racial motivations, it must permit 
the secession in spite of any disadvantageous effects upon 
desegregation of the schools.

The cases cited by the majority of the Court of Appeals 
fail to support its thesis that the existence of racial dis­
crimination is to be determined by inquiring into the desires 
and purposes of those whose acts disadvantage racial 
minorities.

Gomillion v. Lightfoot, 364 U.S. 339 (1960), principally 
cited by the majority below, came before this Court after 
a dismissal on the papers in the district court. There were 
no allegations by the plaintiffs of purposefulness;23 hence,

23 The allegations of the Complaint were:

Prior to Act 140 the City of Tuskegee was square in shape; 
the Act transformed it into a strangely irregular twenty-eight­
sided figure as indicated in the diagram appended to this 
opinion. The essential inevitable effect of this redefinition of



38

in ruling that dismissal was improper and that the allega­
tions were sufficient to state a justiciable cause of action, 
this Court had no occasion even to consider the relevance 
of legislative intent. Certainly Mr. Justice Frankfurter’s 
language does not intimate what the majority below elicits 
from Gomillion:

It is difficult to appreciate what stands in the way of 
adjudging a statute having this inevitable effect invalid 
in light of the principles by which this Court must 
judge, and uniformly has judged, statutes that, how­
soever speciously defined, obviously discriminate 
against colored citizens. 364 U.S. at 342. (emphasis 
supplied)

Haney v. County Board of Educ. of Sevier County, 410 
F.2d 920, 924 (8th Cir. 1969), also cited by the majority 
below, specifically eschewed inquiry into the intent or mo­
tive of the legislators:

Simply to say there was no intentional gerrymandering 
of district lines for racial reasons is not enough. As 
Mr. Justice Harlan once observed, “ [T]he object or 
purpose [* 24] of legislation is to be determined by its 
natural and reasonable effect, whatever may have been

Tuskegee’s boundaries is to remove from the city all save only 
four or five of its 400 Negro voters while not removing a single 
white voter or resident. The result of the Act is to deprive 
the Negro petitioners discriminatorily of the benefits of res­
idence in Tuskegee, including, inter alia, the right to vote in 
municipal elections. 364 U.S. at 341.

24 Even if the Fourth Circuit meant to resurrect the old and 
confusing notion of a distinction between legislative “motive” or 
“ intent” and “purpose,” viewing Haney as resting upon a finding 
of legislative “purpose,”  that hardly serves to sustain the explora­
tion of personal motivations undertaken by the Court of Appeals. 
See J. Ely, Legislative and Administrative Motivation in Consti­
tutional Law, 79 Yale L.J. 1205 (1970).



39

the motives upon which legislators acted.” New York 
v. Roberts, 171 U.S. 658, 681 (1898) (dissenting 
opinion).

Finally, the Court below also cited Burleson v. County 
Board of Election Comm’rs of Jefferson County, supra. A  
careful reading of that opinion reveals that although 
“ [mjuch of the evidence at the trial was directed at the 
motive of the proponents of secession,” 368 F. Supp. at 357, 
the court did not base its ruling upon that consideration. 
(In fact, just as did the district court here, it found motives 
were mixed. Ibid.).

The “primary purpose” rule constructed by the Fourth 
Circuit does not follow, then, from any established legal 
principles. At best, it represents the majority’s attempt to 
balance the rights of black students to attend “ only unitary 
schools,” Alexander v. Holmes County Board of Educ., 396 
U.S. 19 (1969), against “ the legitimate state interest of 
providing quality education for the state’s children” (313a). 
That conception of a balancing process misconceives the 
issue, for the vindication of constitutional rights may not 
be sacrificed in the name of “ quality education” or any 
other educational doctrine:25

[T]he obligation of a school district to disestablish 
a system of imposed segregation, as the correcting of a 
constitutional violation, cannot be said to have been 
met by a process of applying placement standards, 
educational theories, or other criteria, which produce 
the result of leaving the previous racial situation ex­
isting, just as before . . . .

26 Nothing in the Court of Appeals’ opinion prevents whiter 
areas from separating from desegregating majority-blaek systems 
in order to provide “quality education” defined by some fanciful 
but impressive projection of expenditures prepared for the pur­
pose. See text at p. 50 infra.



40

Whatever may be the right of these things to dominate 
student location in a school system where the general 
status of constitutional violation does not exist, they 
do not have a supremacy to leave standing a situation 
of such violation, no matter what educational justifica­
tion they may provide, or with what subjective good 
faith they may have been employed. As suggested 
above, in the remedying of the constitutional wrong, all 
this has a right to serve only in subordinancy or 
adjunctiveness to the task of getting rid of the imposed 
segregation situation, (emphasis supplied)

Dove v. Parham, 282 F.2d 256, 258-59 (8th Cir. 1960).

Furthermore, the Fourth Circuit weights the balance not 
in favor of desegregation, but in the other direction. The 
Court of Appeals’ test places the burden upon the peti­
tioners—not the state officials, as in Green—to demonstrate 
that the primary motivation of those who seek to operate 
a separate system is to maintain segregation.

Because of the inherent difficulty of determining subjec­
tive mental states, inquiries into intent have generally been 
limited to those necessitated by statute. See Palmer v. 
Thompson, 403 U.S. 217, 224-25, 241-43 (1971).

In all of the cases which have dealt with the creation of 
new school districts amidst the process of eliminating the 
vestiges of segregation, except those in the Fourth Circuit, 
decision has turned on the effects of organizing new units, 
and not the motivations therefor. In Lee v. Macon County 
Bd. of Educ., supra, slip op. at p. 11 (S.A. 11a), the Court 
wrote:

The City’s action removing its schools from the county 
system took place while the city schools, through the 
county board, were under court order to establish a



41

unitary school system. The City cannot secede from 
the county where the effect—to say nothing of the pur­
pose—of the secession has a substantial adverse effect 
on desegregation of the county school district.

Similarly, in Stout v. Jefferson County Bd. of Educ., supra,
448 F.2d at 404 (S.A. 24a), the Fifth Circuit held that

. . . where the formulation of splinter school districts, 
albeit validly created under state law, have the effect2 
of thwarting the implementation of a unitary school 
system, the district court may not, consistent with the 
teachings of Swann v. Charlotte-Mecklenburg, supra, 
recognize their creation.

2 The process of desegregation shall not be swayed by in­
nocent action which results in prolonging an unconstitutional 
dual school system. The existence of unconstitutional dis­
crimination is not to be determined solely by intent. Cooper 
v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958); 
Bush v. Orleans Parish School Board, 190 F.Supp. 861 (E.D. 
La., 1960) ; aff’d sub nom. City of New Orleans v. Bush, 366 
U.S. 212, 81 S.Ct. 1091, 6 L.Ed.2d 239 (1961); United States 
v. Texas, 330 F.Supp. 235, Part II (E.D. Tex. 1971) ; aff’d 
as modified, United States v. Texas, 447 F.2d 441 (5th Cir., 
1971).

As we have discussed above, the Burleson case involved 
no determination that illegal motives predominated; rather, 
the district court granted relief because of the unfavorable 
effects creation of a new district would have upon the rest 
of the area under decree. In Aytch v. Mitchell, 320 F. Supp. 
1372 (E.D. Ark. 1971), the court found the movement for a 
separate district was racially motivated but rested his 
ruling on the impact which would be produced. And finally, 
in an analogous situation, the New Jersey Supreme Court, 
construing the federal and state policies in favor of equal 
educational opportunity, held that the Commissioner of



42

Education in that state could validly prevent the termina­
tion of a contract between school districts and the opera­
tion of separate systems where separation would result in 
an imbalance between the new entities and would have 
other deleterious effects upon the educational program.
Jenkins v. Township of Morris School Dist,,------ N .J.------- ,
------  A.2d ------  (1971) (S.A. 25a-53a). Interestingly, in
discussing a nonbinding referendum against consolidation 
which had been conducted in the district which wished to 
terminate the contract, the court emphazised that intent 
was not the standard upon which judgment rested:

It has been suggested that it was motivated by con- 
constitutionally impermissible racial opposition to 
merger (cf. Lee v. Nyquist, supra, 318 F. Supp. 710; 
West Morris Regional Board of Education v. Sills,
------ N .J .-------  (1971)), but we pass that by since the
commissioner made no finding to that effect and his 
powers were, of course, in no wise dependent on any
such finding. (------  N.J. a t ------ , ------  A.2d at ------ )
(S.A. 53a) (emphasis supplied)

A  test of motivation is nothing less than regression to 
the time when “good faith,” rather than results, was con­
sidered sufficient compliance with the State’s obligation 
to desegregate. But “ [t]he good faith of a school board 
in acting to desegregate its schools is a necessary con­
comitant to the achievement of a unitary school system, 
but it is not itself the yardstick of effectiveness.” Hall v. 
St. Helena Parish School Board, 417 F.2d 801, 807 (5th 
Cir.), cert, denied, 396 U.S. 904 (1969). This Court and 
the lower federal courts have for years measured the ade­
quacy of desegregation efforts by their results, and not 
the intentions of those charged with the obligation to 
eradicate the dual system. There was, for example, no 
finding in Green that the New Kent County School Board



43

adopted a freedom-of-choiee plan because they did not think 
it would work to desegregate the public schools of the 
county. It was sufficient that the plan did not work. Other 
decisions employed the same rationale. E.g., Goss v. Board 
of Educ. of Knoxville, 373 U.S. 683 (1963) (minority-to- 
majority transfer plan); Boss v. Dyer, 312 F.2d 191, 196 
(5th Cir. 1963) (brother-sister ru le); Clark v. Board of 
Educ. of Little Rock, 426 F.2d 1935 (8th Cir. 1970) (geo­
graphic zoning).

In short, the majority’s “primary purpose” test is at 
war with the standards traditionally applied in school 
desegregation cases. This is made less apparent because 
the majority opinion does not really treat the matter as 
a school desegregation case. But, if different standards 
are to apply to this situation, then we submit that those 
suggested by Judge Sobeloff are the proper ones.

There can be no question whatever that the establish­
ment of an operative separate Emporia school system, 
whose student assignments are segregated from Greensville 
County’s, is state action with a racially differential im­
pact. Where there had formerly been one school unit 
which all city and county students attended, there would 
be created a city district, 50% white and a county district, 
70% black, ringing the city. The fact that blacks and 
whites had not previously attended school together, except 
in token numbers would serve only to heighten the aware­
ness of disproportion.

It would be entirely appropriate to view this action, 
therefore, as creating a racial classification, and to require 
a showing of a compelling state interest to justify the 
racially differential result. E.g., Kennedy Park Homes 
Assn., Inc. v. City of Lackwanna, 436 F.2. 108(2d Cir. 
1970) (per Mr. Justice Clark), cert, denied, 401 U.S. 1010



44

(1971); Hawkins v. Town of Shaw, 437 F.2d 1286 (5th Cir. 
1971), pending on rehearing en banc; Jackson v. Godwin, 
400 F.2d 529 (5th Cir. 1969).26

26 The concerns which Emporia said prompted its decision to 
operate its own school system hardly amount to a compelling state 
interest which cannot be satisfied by other means which do not 
have racially discriminatory effects. For example, City witnesses 
said they doubted that the County would meet the increased ex­
penditure needs associated with the operation of a unitary school 
system and also maintain the level of the educational program 
offered (236a, 289a-290a). The district court is not without the 
power, in the exercise of its equitable jurisdiction, to deal with 
such matters. In Bradley v. School Bd. of Richmond, 325 F. Supp. 
828, 847 (E.D. Va. 1971), the same district judge directed that 
when a desegregation plan was effectuated, “the operation of city 
schools free from racial bars may not be cause for a reduction in 
educational quality or the discontinuance of courses, services, pro­
grams, or extracurricular activities traditionally offered.” The 
court’s order issued the same day enjoined the defendants to

(b) operate the public schools of the City of Richmond pur­
suant to the aforementioned desegregation plan 3 during the 
1971-72 school year and thereafter, unless and until this order 
be vacated or modified, such operation not to be cause for any 
reduction in educational effort or the discontinuance or reduc­
tion of courses, services, programs, or extra-curricular activities 
which traditionally are offered.

The City Council of Richmond, which had been joined as a party 
upon motion of the plaintiffs, was directed to

raise or appropriate and authorize the expenditure of funds 
sufficient to operate the public schools in the City of Richmond 
in conformity with this decree and in particular shall raise 
or appropriate and authorize the expenditure of funds by 
the School Board for the acquisition of transportation facil­
ities necessary for the implementation of plan 3 if so re­
quested by the School Board and informed that, in the opinion 
of the School Board, the Board does not have sufficient funds 
at its disposal to acquire such facilities and also operate the 
public schools of the City of Richmond in conformity with 
other portions of this decree; . . . .  (Bradley v. School Bd. of 
Richmond, Civ. No. 3353 (E.D. Va., April 5, 1971).

In United States v. Georgia, Civ. No. 12972 (N.D. Ga., Jan. 13, 
1971), three federal district judges ruled that a county could not,



45

Not only is the “primary motive” test out of harmony 
with the decisions of this Court in the area of school 
desegregation, but it is imprudent to require federal courts 
carrying out their important functions in the desegrega­
tion process—who are confronted with attempts to estab­
lish new districts—to investigate the nebulous mental state 
of school officials. Judge Sobeloff’s warning that “ resis­
tant white enclaves will quickly learn how to structure a 
proper record—shrill with protestations of good intent, 
all consideration of racial factors muted beyond the range 
of the court’s ears” (322a) is the more significant when 
one considers that respondents developed an elaborate 
budget which — if actually implemented — would have re­
sulted in a “ superior” educational program, after deciding 
that they would like to make a more extensive record (187a).

when ordered to desegregate, suddenly terminate extra-curricular 
programs it had previously offered unless operation of the programs

is financially impossible [which shall be defined to mean that] 
the anticipated deficit for any activity is substantially greater 
than the deficit incurred in the operation of a similar activity 
at the Randolph County High School in previous school years, 
and there are no funds available from any source with which 
to offset such deficit (Order at pp. 4-5).

And see Plaquemines Parish School Bd. v. United States, 415 F.2d 
817 (5th. Cir. 1969).

The City witnesses also complained that they had no voice on 
the county school board. But Virginia law provided for representa­
tion of the city’s interests where there was a contract with the 
county. See Va. Code Ann. §22-99 (Repl. 1969). At the time of 
the hearing on preliminary injunction, in fact, two of four Greens­
ville County School Board members were city residents (168a). 
But even assuming the validity of the city’s complaint, it could 
have been dealt with in a way which did not involve reducing the 
effectiveness of the desegregation plan. Again, the district court 
was not without power to modify the requirements of state law 
concerning representation, as a part of its equitable remedy to 
disestablish the dual system. See Haney v. County Bd. of Educ. 
of Sevier County, 429 F.2d 364, 368-69, 372 (8th Cir. 1970).



46

Nothing better marks the inadequacy of so subjective a 
standard as intent to protect the desegregation decrees of 
federal courts from “yet another method to obstruct the 
transition from racially separated school systems to school 
systems in which no child is denied the right to attend a 
school on the basis of race” (313a) than the superficial man­
ner in which the standard was applied to this case (see 
III infra). Affirmance of the ruling below can be expected 
to loose a plethora of attempts to “ incorporatfe] towns for 
every white neighborhood in every city,” Lee v. Macon Bd. 
of Educ., supra, slip op. at p. 11 (S.A. 11a), just as occurred 
in Jefferson County Alabama after the district court’s 
approval of the first secession (see S.A. 54a-55a). A nr) if 
the local district courts are to be required to make determi­
nations of motive, there will inevitably be interminable 
testimony by numerous officials and truly “a quagmire of 
litigation” (334a). The “ rule” adopted below may well turn 
out to be ineffective to reach even the most outrageous 
violations, let alone to properly carry forward the consti­
tutional requirements with maximum accommodation of 
other interests.

III.

Even Were the Court of Appeals’ Standard Accept­
able, It Was Misapplied in This Case.

The Court of Appeals announced a new constitutional 
rule in this case and proceeded to make its own judg­
ments, based on the record, and applying the new standard. 
We have argued above that the district court’s order was 
well within its discretion in fashioning a remedy—and 
on that account alone ought not to have been disturbed. 
We have also argued that the Court of Appeals’ new rule 
is unworkable and constitutionally wrong. But even if 
the Court of Appeals was correct about the standard to



47

be applied, it should have left the application of that 
standard in the first instance to the district court. Instead, 
it superficially skimmed the evidence and reached a result 
which is clearly unsupportable on the record.

It is perfectly apparent that the district judge never 
had an opportunity to apply a “primary motive” test. 
The comments of the court and of the attorneys during 
the two hearings establish that none of the parties con­
ceived of any such issue. At the end of a colloquy during 
the December, 1969 hearing, for example, the district court 
said:

I think the people have legal rights of motivation but 
it may not be a factor the—it may not be a factor 
for the Court to even consider (252a).

The district court explicitly made no judgment about 
predominant motivation:

. . . the Court is satisfied that while their motives 
may be pure, and it may be that they sincerely feel 
they can give a better education to the children of 
Emporia, they also have considered the racial bal­
ance . . . (emphasis supplied) (184a).

The motives of the city officials are, of course, 
mixed. . . . (305a)

This Court’s conclusion is buttressed by that of the 
district court in Burleson . . . [where the court] ruled 
not principally because the section’s withdrawal was 
unconstitutionally motivated . . . [but because of] the 
impact on the remaining students’ right to attend fully 
integrated schools . . . (308a-3G9a).

Even the attorney for respondents did not conceive motive 
to be the issue:



48

[Eecross Examination of George F. Lee by Mr. 
Warriner:]

Q. Has it been the intent, the purpose—well, I sup­
pose intent and purpose are not proper for inquiry . . . 
(131a).

Instead of remanding to allow the district court, which 
was more familiar with the facts and circumstances and 
could weigh the demeanor and credibility of witnesses, 
to apply the newly defined standard, however, the Court 
of Appeals simply canvassed the record for itself and, 
without questioning any of the district court’s findings, 
reversed its judgment. Cf. Keyes v. School Dist. No. 1, 
Denver, 396 U.S. 1215 (1969) (Mr. Justice Brennan, Acting 
Circuit Justice); Northcross v. Board of Educ. of Memphis, 
397 TT.S. 232 (1970). While we seriously question whether 
the Court of Appeals’ action was correct, this Court has 
the same record before it and ought to make its own in­
dependent review of the facts in considering the Fourth 
Circuit’s ruling.

Were this Court sitting to review factual findings of the 
Court of Appeals, we believe they would meet the “clearly 
erroneous” standard. When all of the evidence is con­
sidered, it overwhelmingly establishes that a separate city 
school system was conceived in response to, and represents 
a determined effort to evade, the desegregation decree of 
the district court.

The majority opinion below begins its analysis, after 
summarizing some of the facts, by looking to the racial 
change wrought by the establishment of separate districts 
(315a-316a). Because the county system’s black population 
rises only six per cent, the Fourth Circuit concludes that 
“ the effect of the separation [does] not demonstrate that



49

the primary purpose of the separation was to perpetuate 
segregation . . . ” (316a). No comparison of the rise in 
white student percentage in the present county district 
and the new city district, or between the racial composition 
of the two new systems, is made. So far as the dispropor­
tion between city and county schools, the majority below 
intimates that since both systems will be majority black 
(albeit one 52% and the other 72%) that is the end of the 
matter because, in the Court’s view, “ [t]he Emporia city 
unit would not be a white island in an otherwise heavily 
black county” (315a).

The majority below conveniently ignores the district 
court’s finding that the new district would create a “sub­
stantial shift in the racial balance” (304a).

Continuing, the Court of Appeals says that there is 
“ strong” evidence that the city’s motives were not racial 
(316a); the Court mentions but four points. First, the 
Court refers to Dr. Tracey’s “understanding” that it was 
not the intent of the city to resegregate (316a). Of course, 
Dr. Tracey was an educational expert and not a psychol­
ogist, and the district court was not bound to accept his 
opinion about what the majority below perceives to be 
the ultimate issue in this case. In the district court’s 
opinion, the following juxtaposition of sentences suggests 
that the lower court chose not to assign Dr. Tracey’s 
“understanding” much weight:

Dr. Tracey testified that his studies concerning a 
possible separate system were conducted on the under­
standing that it was not the intent of the city people 
to “ resegregate” or avoid integration. The Court finds 
that, in a sense, race was a factor in the city’s decision 
to secede (307a).



50

The majority below also notes that Emporia proposed 
what Dr. Tracey considered a superior educational 
program. Indeed, it is not disputed that the program 
outlined in Dr. Willett’s budget is a good one; the district 
court noted that “ [t]he city clearly contemplates a superior 
quality education program” (297a). That is the beginning 
of the inquiry into motive, however, not its end. Uncon- 
trovertibly this budget was prepared only after the 
temporary injunction was issued and the City had gained 
a better idea what evidence might best serve its cause 
(187a). The proposed budget may be some evidence of the 
city’s motive in seeking to form its own school system, 
but in light of the significant amount of evidence more 
contemporaneous to the inception of the idea (which the 
Court of Appeals does not discuss, see below), it is hardly 
“ strong” evidence.

Next, the Court of Appeals says:

In sum, Emporia’s position, referred to by the district 
court as “uncontradicted”  was that effective integra­
tion of the schools in the whole county would require 
increased expenditures in order to preserve education 
quality, that the county officials were univilling to pro­
vide the necessary funds, and that therefore the city 
would accept the burden of educating the city children, 
(emphasis supplied) (317a)

This is the linchpin of the entire Court of Appeals’ holding, 
for as we read the opinion, this is what establishes to the 
satisfaction of the Court that Emporia’s interest was in 
preserving “quality education,” not in avoiding integration 
ratios it considered unfavorable. How “ strong” is the evi­
dence, then, if far from finding uncontradicted evidence of 
the county’s unwillingness to adequately support a school



51

program, the district court actually rejected it! What the 
district court said was:

. . . The city’s evidence, uncontradicted, was to the ef­
fect that the board of supervisors, in their opinion, 
would not he willing to provide the necessary funds. 
(emphasis supplied) (306a).

This was evidence from city officials, who had also spoken 
of eight years of antagonism between the city and the 
county (159a). The district court continued:

While it is unfortunate that the County chose to take 
no position on the instant issue, the Court recognizes 
the City’s evidence in this regard to be conclusions; 
and without in any way impugning the sincerity of the 
respective witnesses’ conclusions, this Court is not will­
ing to accept these conclusions as factual simply be­
cause they stand uncontradicted. . . . (306a)

Finally, the Court of Appeals refers to difficulties and 
awkwardness arising from Virginia’s political structure, 
noting that as a separate city Emporia could not obtain an 
increase in school expenditures to benefit city children un­
der the contract arrangement except with approval of the 
County Board of Supervisors, on which the city was not 
represented and for whose members city residents did not 
vote (317a-318a). We agree that Virginia’s “unusual” politi­
cal structure furnishes a possible motive for Emporia’s 
actions, but we think that examination of the rest of the 
record—none of which was mentioned or explained by the 
majority opinion—negates the conclusion that that was the 
city’s actual motive.

The city did not establish that it had ever attempted to 
increase school expenditures. While it was purportedly 
worried about the county’s willingness to undertake addi­



52

tional expenditures it felt would be necessary to operate a 
unitary system, the city school board never had any discus­
sions with the county board about the kind of desegregation 
plan which should be proposed (140a, 145a, 148a).

Without repeating the matters summarized in the State­
ment, above, we would direct the Court’s attention to a few 
important subjects upon which evidence was introduced 
which are relevant to the question of the city’s motive.

The timing of the city’s move to operate a separate 
system strongly suggests racial motivation. The minutes 
of school board and city council meetings and the docu­
mentary evidence described in the Statement, all of which 
represent contemporaneous recordings of the events before 
litigation over this matter began, suggest very strongly that 
the idea of leaving the county system did not occur to city 
residents until substantial integration became likely. In­
deed, city officials went so far as to testify that the court’s 
decree was the “precipitating factor” because they were 
dissatisfied with the pairing plan.

The city attempted to establish that there had been long­
standing dissatisfaction with the arrangement under which 
the county operated public schools for city children, and 
that it was merely coincidental that the interest in separa­
tion matured at the time the desegregation decree was 
entered. The city witnesses pointed to the “ultimatum” 
from Greensville County in 1968 which they claim forced 
them to accept the contract arrangement instead of being 
able at that time to establish the separate school system 
they desired to operate (233a).

The city’s claim simply cannot be squared with the 
facts. Despite alleged serious difficulties between the town 
or city of Emporia and Greensville County which had con­
tinued for a considerable period of time, there had been no



53

prior attempt to establish a separate system—although 
under Virginia law, even while Emporia was a town, it 
could have petitioned the State Board of Education to 
operate as a school district separate from Greensville 
County. Va. Code Ann. §22-43 (Repl. 1969). Furthermore, 
it was open to Emporia immediately at the time of its 
transition from a town to a city, to bring the kind of law­
suit it brought in 1969 to establish equities in school build­
ings between the city and the county. Va. Code Ann. §15.1- 
1004 (Repl. 1964). Since this course of action was open to 
the city, it was not, as the Mayor charged, the inability to 
agree upon a price for the school buildings located in the 
city (119a) which necessitated the execution of the contract 
with Greensville County in 1968. While the County Board 
of Supervisors did eliminate the possibility of joint school 
operation (30a), the city was satisfied with the contract 
arrangement while the schools were segregated (163a, 
235a), and the delay in executing the agreement was occa­
sioned by negotiations about the terms of the contract; six 
different proposals were made by the city to the county 
(230a). Both the Mayor and the chairman of the city 
school board testified that they were satisfied with having 
the county educate city children up until the time the de­
segregation order was entered (163a, 235a).

On the other hand, city officials testified that they were 
aware that establishing a separate district would result in 
two systems of significantly different racial composition 
(the chairman of the city school board termed the increased 
black percentage in the county district an “ adverse effect” 
of the secession (152a)), and they also stated their concern 
with avoiding withdrawal of students to private schools 
(see 290a-291a). Furthermore, the city’s rush after June 
25, 1969 to set up a new district by September, 1969 even 
if it required operating in churches and vacant buildings,



54

contrasts sharply with the budget it came up with in Decem­
ber, 1969, and casts doubts upon the city’s claim to be in­
terested in the best education of its children.

In sum, the claims of the city to a continuing and long­
standing desire to free itself from county domination which 
prevented attainment of educational quality, are far out­
weighed by its unexplained failure to take any action until 
integration was to occur, its awareness that a separate 
system would contain a more palatable racial mix which 
might prevent white flight, and the very frankly expressed 
dissatisfaction on the part of the city residents and officials 
with the court’s desegregation decree.

No less than total segregation, the attempt to preserve a 
racial mixture in the schools more to the liking of the 
dominant white population is “a living insult to the black 
children and immeasurably taints the education they re­
ceive.” Brunson v. Board of Trustees, 429 F.2d 820, 826 
(4th Oir. 1970). That is exactly what respondents’ scheme 
would do if it were implemented. See the comments of 
Judge Winter, dissenting below (340a-341a).



55

CONCLUSION

For the foregoing reasons, it is respectfully submitted 
that the judgment of the Court of Appeals should be re­
versed and the case remanded with instructions to affirm 
the judgment of the district court.

Respectfully submitted,

J ack  Greenberg 
J ames M. N abrit, ITT 
N orman J . C h a c h k in  

10 Columbus Circle 
New York, New York 10019

S. W . T ucker 
H enry  L. M arsh , III 

214 East Clay Street 
Richmond, Virginia 23219

Attorneys for Petitioners



APPENDIX



App. 1

Va. Code Ann.

§ 22-7. Joint schools for counties or for counties and 
cities or towns.— The school boards of counties or of coun­
ties and cities, or of counties and towns operating as sepa­
rate special school districts, may, with the consent of the 
State Board, establish joint schools for the use of such 
counties or of such counties and eities or of counties and 
towns operating as separate special school districts, and 
may purchase, take, hold, lease, convey and condemn, 
jointly, property, both real and personal, for such joint 
schools. Such school boards, acting jointly, shall have the 
same power of condemnation as county school boards ex­
cept that such land so condemned shall not be in excess 
of thirty acres in a county or city for the use of any one 
joint school. The title of all such property acquired for 
such purposes shall vest jointly in such school boards of 
the counties or counties and cities or counties and towns 
operating as separate special school districts in such re­
spective proportions as such school boards may determine, 
and such schools shall be managed and controlled by the 
boards jointly, in accordance with such rules and regula­
tions as are promulgated by the State Board. However, 
such rules and regulations in force at the time of the adop­
tion of a plan for the operation of a joint school shall not 
be changed for such joint school by the State Board without 
the approval of the local school boards.

§ 22-30. Sow division made.— The State Board shall 
divide the State into appropriate school divisions, in the 
discretion of the Board, comprising not less than one 
county or city each, but no county or city shall be divided 
in the formation of such division.



App. 2

§ 22-34. When school hoards to meet jointly to appoint 
superintendent.—When a school division is composed of a 
city and one or more counties, or two or more counties, 
the school boards composing the division must meet jointly 
and a majority vote of the members present shall be 
required to elect a superintendent.

§ 22-42. Counties and magisterial districts as school dis­
tricts.—Each magisterial district shall, except where other­
wise provided by law, constitute a separate school district 
for the purpose of representation. For all other school 
purposes, including taxation, management, control and 
operation, unless otherwise provided by law, the county 
shall be the unit; and the school affairs of each county 
shall be managed as if the county constituted but one school 
district; provided, however, that nothing in this section 
shall be construed to prohibit the levying of a district tax 
in any district or districts sufficient to pay any indebted­
ness, of whatsoever kind, including the interest thereon, 
heretofore or hereafter incurred by or on behalf of any 
district or districts for school purposes.

§ 22-43. Special districts abolished; exceptions; certain 
towns may be constituted separate districts.—x\ll special 
school districts and special town school districts except 
the special school district for the town of Lexington of 
Rockbridge County and the town of Bedford of Bedford 
County and the town of Fries of Grayson County, which are 
hereby preserved, are hereby expressly abolished, except 
the special town school district for the town of Kilmarnock 
in Lancaster County and all those special town school 
districts which have heretofore been established by and 
with the approval of the State Board, which are hereby 
expressly continued for the purpose for which established; 
provided, however, that the town of Herndon of Fairfax



App. 3

Comity and the town of Colonial Beach of Westmoreland 
County, and incorporated towns having a population of 
not less than three thousand five hundred inhabitants, ac­
cording to the last United States census, may, by ordinance 
of the town council and by and with the approval of the 
State Board, be constituted separate school districts either 
for the purpose of representation on the county school 
board, or for the purpose of being operated as a separate 
school district under a town school board of not less than 
three nor more than five members, appointed by the town 
council. In the event that such a town district be set up, 
to be operated by a board of three members, the members 
of such board shall be appointed in accordance with § 22-89, 
providing for the appointment of trustees in cities and of 
such members, one shall be designated by the town school 
board as a member of the county school board and entitled 
to serve as a member of the county board.

B oards of C ities and T owns

§ 22-89. Appointment and term.— The council of each 
city except as otherwise provided by the city charter shall, 
on or before July first, nineteen hundred and thirty, appoint 
three trustees for each school district in such city, whose 
term of office shall be three years, respectively, and one 
of whom shall be appointed annually. The first appoint­
ment hereunder shall be one for one year, one for two 
years, and one for three years, beginning July first, nine­
teen hundred and thirty, and thereafter all appointments 
shall be for three years. If a vacancy occurs in the office 
of trustee at any time during the term, the council shall 
fill it by appointing another for such part of the term as 
has not expired. Within thirty days preceding the day on 
which the term of such trustees shall expire by limitation, 
and within the like number of days preceding the day on



App, 4

which the term of any trustee shall expire by limitation in 
any subsequent year, such council shall appoint a successor 
to each such trustee in office, whose term shall commence 
when the term of predecessor shall have expired; provided, 
the office of any such trustee has not been abolished in 
redistricting the city; and, provided, that in the city of 
Norfolk the trustees shall be appointed in accordance with 
the provisions of § 22-89.1 rather than in accordance with 
the provisions of the city charter, and provided, further, 
that the common council of the city of Winchester shall 
select and appoint the school trustees for said city, and 
that in all other respects the provisions of this section shall 
apply to the city of Winchester. All acts heretofore done 
by the school board of the city of Winchester are hereby 
validated.

§ 22-99. When city contracts with county to furnish facil­
ities. In the event that a city through authority granted in 
its charter enters into contract with the county school board 
of the adjacent county for furnishing public school facilities 
for the city where the county and city are constituted as one 
school system for the establishment, operation, mainte­
nance and management of the public schools within the 
county and city, the school board of the county shall consist 
of one representative from each magisterial district of the 
county and each magisterial district (or ward) of the city, 
such incumbent to be appointed by the county school trustee 
electoral board, as provided by § 22-61; provided further 
that the members of the county school board representing 
the city shall be selected from a list of three citizens from 
each district (or ward) to be submitted by the city council 
of the city; any other law to the contrary notwithstanding.



App. 5

B oards or D ivisions C omprising  T wo or M ore 
P olitical S ubdivisions

§ 22-100.1. Single school hoard authorized.-—When the 
State Board of Education has created a school division, 
composed of two or more counties or one or more counties 
with one or more cities, the supervision of schools in any 
such school division may he vested in a single school board 
under the conditions and provisions as hereinafter set 
forth.

§ 22-100.2. How hoard established.— The school boards 
of such counties, county and city or counties and cities, 
comprising such school division, by a majority vote, may, 
with the approval of the governing bodies of such counties, 
or counties and cities, and the State Board of Education, 
establish such division school board in lieu of the school 
boards as at present constituted for the counties, county 
and city or counties and cities of such school division. 
Provided, however, that no such division shall be created 
which includes a county in which there is located a town 
operating as a separate school district.

§ 22-100.3. How composed; appointment and terms of 
members; vacancies.—Such division school board shall be 
composed of not less than six nor more than nine trustees, 
with an equal number of members from each county or city 
of the division and with a minimum board of six members, 
who shall be appointed by the county b -̂ard of supervisors 
for a county and the city council for a city. Upon the 
creation of such school division there shall be appointed 
by the appropriate appointing bodies the required number 
of members to the division school board who shall serve 
until the first day of July next following the creation of 
such division. Within sixty days prior to that day each



App. 6

appointing body shall appoint the required number of 
members of the division school board as follows: If there 
be three members, one shall be appointed for a term of 
two years, one for a term of three years, and one for a 
term of four years; if there be four members, one shall be 
appointed for a term of one year, one for a term of two 
years, one for a term of three years, and one for a term of 
four years. Within sixty days prior to the first day of 
July in each and every year thereafter there shall be ap­
pointed by the appropriate appointing body for a term of 
four years beginning the first day of July next following 
their appointment, successors to the members of the divi­
sion school board for their respective counties or cities, 
whose terms expire on the thirtieth day of June in each 
such year. The exact number of trustees for a county or 
city shall be determined by the governing bodies concerned 
within the limits above provided. Any vacancy occurring 
in the membership of the division school board from any 
county or city shall be filed for the unexpired term by the 
appointing body of such county or city. The governing 
bodies concerned shall jointly select for a term of four 
years one person who shall be a member of the division 
school board only for the purpose of voting in case of an 
equal division of the regular members of the board on any 
question requiring the action of such board. Such person 
shall be known as the tie breaker.

If the governing bodies are not able to agree as to the 
person who shall be the tie breaker, then upon application 
by any of the governing bodies involved to a circuit court 
having jurisdiction over a county or city embraced in such 
school division, the judge thereof shall name the tie breaker 
and his decision shall be final.



MEILEN PRESS INC. —  N. Y. C. 219