Wright v. Council of the City of Emporia Brief in Opposition to Granting Writ of Certiorari

    Supreme Court of the United States
October Term, 1970

No. 1730

PECOLA A N N E TTE W RIG H T, et a l .,

v.
Petitioners,

COUNCIL OF TH E  CITY OF EM PORIA, et a l .,
Respondents.

BRIEF IN OPPOSITION T O  GRANTING W R IT OF 
CERTIORARI T O  THE UNITED STATES COURT  

OF APPEALS FOR THE FOURTH CIRCUIT

D. D ortch  W a rrin er
Warriner, Outten, Barrett & Burr 
314 South Main Street 
Emporia, Virginia 23847

Jo h n  F. K a y , Jr .
Mays, Valentine, Davenport & Moore 
1200 Ross Building 
Post Office Box 1122 
Richmond, Virginia 23208

Counsel for Respondents



TABLE OF CONTENTS
Page

O pinions Below .................. ................ ................ —-........................... 1

Constitutional and Statutory Provisions I nvolved ............ 1

Q uestions Presented......................................... -..............................-  2

Statement .........................................................................................  3

Reasons F or Denying W rit .......— ............................... — ........ 13

I. The Issues Involved Are Not Of Critical Importance 
In The Process of School Desegregation Because Of 
The Unique Structure of Local Government in Virginia 13

II. Decision Of The Court Of Appeals Below Is Not In 
Conflict With Rulings Of This Court And Another 
Court Of Appeals................. -......-.................. -....................  17
1. Green v. County School Bd., 391 U.S. 430 (1968) 

and Swann v. Charlotte-Mecklenburg Bd. of Educ.,
No. 281 O.T. 1970 ......................................     17

2. Burleson v. County Bd. of Election Comm’rs, 432
F.2d 1356 (8th Cir. 1970) ...............................     20

III. Decision Of The Court Of Appeals Below Was Plainly 
R ig h t.......................................... -........... -...................... -.........  21

Co n c l u s io n ..............................................................................................  22

TABLE OF CITATIONS

Cases

Alexander v. Holmes County Bd. of Educ., 396 U.S. 19 (1969) 21

Brown v. Board of Educ. of Topeka, 349 U.S. 294 (1955) .......  19

Burleson v. County Bd. of Election Comm’rs, 432 F.2d 1356 (8th 
Cir. 1970) .............................................................................. 14, 17, 20



Page

Burleson v. County Bd. of Election Comm’rs, 308 F. Supp. 352
(E.D. Ark. 1970) ........................................ .......... .................  20, 21

City of Richmond v. County Bd., 199 Va. 679, 101 S.E.2d 641 
(1958) ...............................................................................................  15

Colonial Heights v. Chesterfield, 196 Va. 155, 82 S.E.2d 566 
(1954) ................................................................................................ 15

Green v. County School Bd., 391 U.S. 430 (1968) ..........10, 17, 18,
19, 21

Haney v. County Bd. of Educ., 410 F.2d 920 (8th Cir. 1969) .... 14 

Murray v. Roanoke, 192 Va. 321, 64 S.E.2d 804 (1951) ...... ......... 15

School Bd. v. School Bd., 197 Va. 845, 91 S.E.2d 654 (1956) .... 16

Supervisors v. Saltville Land Co., 99 Va. 640, 39 S.E. 704 (1901) 15

Swann v. Charlotte-Mecklenburg Bd. of Educ., No. 281 O.T. 1970
13, 17, 18, 19, 21, 22

United States v. Scotland Neck City Bd. of E du c.,..... F.2d ........ ,
Nos. 14,929 and 14,930 (4th Cir. 1971) ................................ 14, 19

Constitution

Virginia, Constitution of
Art. IX , § 133 .............................................................. ........2, 5, 6, 16

Code

Virginia Code Annotated (1950) :
§ 15.104 (now 15.1-1005) ...................................................   2
§§ 15.1-978 through 15.1-1010 ........................ .......... _......... ........  2
§ 15.1-982 ......................................................................................    2
§ 15.1-1005 ..................................................................................    is
§22-34 .................................................................................................  6
§22-93 .......................................................................................2, s’ 16
§22-97 ......................................................................................   6
§ 22- 100.2 .................................................................................................................  6



Supreme Court of the United States
October Term, 1970

No. 1730

PECO LA A N N E TT E  W R IG H T, et a l .,
Petitioners,

v.

COUNCIL OF TH E  C ITY  OF EM PORIA, et  a l ,,
Respondents.

BRIEF IN OPPOSITION TO  GRANTING W R IT OF 
CERTIORARI TO  THE UNITED STATES COURT  

OF APPEALS FOR THE FOURTH CIRCUIT

OPINIONS BELOW

The petition accurately describes the opinions of the 
courts below except that it indicates that Judge Sobeloff dis­
sented in this case. Judge Sobeloff did not participate in the 
appeal of this case from the District Court.

CONSTITUTIONAL AND STATU TOR Y  
PROVISIONS INVOLVED

In addition to the constitutional provisions and statutes 
referred to in the petition, the case involves:



2

1. V a . C o n st , art. ix , § 133, which is set forth in the 
appendix to this brief in opposition at R.A. 1.*

2. V a . C ode A n n . § 22-93 (1950), which provides:

The city school board of every city shall establish 
and maintain therein a general system of public free 
schools in accordance with the requirements o f the 
Constitution and the general educational policy o f the 
Commonwealth.

3. V a . C ode A n n . §§ 15.1-978 through 15.1-1010 
(1950), which relate to the transition of towns to cities in 
the Commonwealth of Virginia. V a . Code A n n . § 15.1-982 
(1950), as in effect on July 31, 1967, is set forth in part at 
R.A. 2.

QUESTIONS PRESENTED

The preliminary statement contained in the section of 
the petition entitled “ Questions Presented”  (P. 2) is in­
accurate and incomplete and thus provides a misleading 
foundation upon which the presentation of the questions 
involved is based.

The City of Emporia is not located within Greensville 
County. While it is surrounded by Greensville County, the 
City is politically, governmentally, and geographically in­
dependent of the County.

Additionally, the one sentence summaries of the reasons 
for the holdings of the courts below are, of course, incom­
plete and accordingly they sacrifice accuracy for brevity.

* The following designations will be used in this brief :
R.A.— Appendix to respondent’s brief in oppostion
P. — Petition for writ of certiorari
P.A.— Appendix to petition for writ of certiorari



3

The questions involved are:

1. Because of the unique independent status of cities in 
the Commonwealth of Virginia, are the issues here involved 
of such nationwide importance as to warrant a review and 
decision by this Court?

2. May the City of Emporia, Virginia, an independent 
political subdivision of the Commonwealth o f Virginia, 
which was created in 1967 under long-standing state law 
for reasons unrelated to public school desegregation, operate 
a racially unitary and superior quality school system in­
dependent of the County o f Greensville, which is a separate 
independent political subdivision of the Commonwealth?

3. Was the Court of Appeals correct in deciding that 
the constitutionally protected rights of the petitioners would 
not be violated if the City of Emporia operated a unitary 
school system independent of that operated by the County 
of Greensville, which decision was based upon the factual 
findings of the District Court?

STATEM ENT

In their “ Statement” petitioners call attention to the 
fact that this is “ one of three cases decided together by the 
Court o f Appeals involving the relationship between de­
segregation and the creation of new school districts” (P . 3). 
While this is true, it is important to note at the outset that 
there are various significant differences between this case, 
which involves a city in the Commonwealth of Virginia, 
and the other two cases, which involve school districts in 
the State of North Carolina. A  detailed explanation of the 
Virginia system of local government is contained in a 
later section of this brief. At this point, however, attention 
is called to the fact that the City of Emporia was created 
under long-standing Virginia law and is completely in­
dependent of the County of Greensville for all purposes,



4

save one.1 On the other hand, the North Carolina school 
districts were created pursuant to special acts o f the North 
Carolina General Assembly adopted in 1969 and the areas 
involved are still a part o f the county or counties out of 
which they were carved for all governmental purposes other 
than education.

On pages 4 and 5 of the petition, footnote 4, the back­
ground of the litigation is set forth. Some elaboration is 
necessary. The evidence was uncontradicted that the moti­
vating factor behind the transition of Emporia from a town 
to a city was the desire of Emporia’s elected officials to have 
the city receive the benefit o f the state sales tax that had 
recently been enacted and to eliminate other economic in­
equities. There has been no charge by the plaintiffs that the 
decision to become a city was in any way motivated by 
the school desegregation situation. There was no finding by 
the District Court to impugn the motives or purposes of 
the City in effecting this transition. The Court of Appeals 
so indicated (P .A . 4a). Thus, it is clear that this is not a 
case in which an area has been “ carved out”  for the purpose 
of avoiding school desegregation.

Further, petitioners indicate that at the time Emporia 
became a city it was free to operate its own independent 
school system, but chose not to do so. The courts below 
were satisfied that Emporia considered so doing at that 
time, but determined that such was not practical immediate­
ly after transition.

The Court of Appeals stated:

Emporia considered operating a separate school sys­
tem but decided it would not be practical to do so im­
mediately at the time of its independence. There was 
an effort to work out some form of joint operation with

1 It shares with the County the cost of the circuit court and its 
clerk, the commonwealth’s attorney and the sheriff.



5

the Greensville County schools in which decision mak­
ing power would be shared. The county refused. Em­
poria finally signed a contract with the county on 
April 10, 1968, under which the city school children 
would attend schools operated by the Greensville 
County School Board in exchange for a percentage of 
the school system’s operating cost. Emporia agreed to 
this form of operation only when given an ultimatum 
by the county in March 1968 that it would stop educat­
ing the city children mid-term unless some agreement 
was reached.

The District Court held:
Ever since Emporia became a city consideration has 
been given to the establishment of a separate city 
system. A  second choice was some form of joint oper­
ating arrangement with the county, but this the county 
would not assent to. Only when served with an “ulti­
matum” in March of 1968, to the effect that city stu­
dents would be denied access to county schools unless 
the city and county came to some agreement, was the 
contract of April 10, 1968, entered into.

The contract of April 10, 1968, was limited to a term of 
four years expiring on July 1, 1971 (P .A . 73a).

On pages 6 and 7 o f the petition, footnote 6, petitioners 
undertake to explain the Virginia system of school divisions 
and school districts. They erroneously state that when 
Emporia became a city “ it could not operate a separate 
school system unless it was named a separate school divi­
sion by the State Board.”  The Constitution of Virginia 
requires that supervision of schools in each county and 
city shall be vested in a school board. V a . Co n st , art. ix , 
§ 133 (R .A . 1). The Code of Virginia requires that the 
city school board of every city shall establish and maintain 
therein a system of schools. V a . C ode A n n . § 22-93 (1950)



6

{supra at 2 ). It sets forth the duties and powers o f the 
city school boards. V a . C ode A n n . § 22-97 (1950) (P .A . 
91a). While it is possible for a city and a county to be in 
one school division, each has its own school district, its own 
school board and each operates its own system. In such 
cases the boards are required to meet together only for the 
purpose o f appointing a superintendent of the division who 
serves both boards but who administers each system separ­
ately. V a . C ode A n n . § 22-34 (1950) (P .A . 87a). The 
Constitution of Virginia permits supervision of such divi­
sion to be vested in a single school board in which event 
the separate school boards cease to exist. V a . C o n st , art. 
ix , § 133 (R .A . 1). The Code provides that such may 
occur only upon approval of the school board and the gov­
erning body of each of the political subdivisions involved. 
V a . C ode A n n . § 22-100.2 (1950) (P .A . 97a). The courts 
below found that the County refused to agree to a jointly 
operated system (P .A . 4a, 75a). It is therefore clear that 
under state law the City of Emporia has the power and duty 
to operate its own system of schools as a separate school 
district. The City sought to be constituted a separate divi­
sion only so that it could employ its own superintendent 
(Transcript o f the Proceedings, December 18, 1969, at 27).

On pages 7, 8, and 9 of the petition, reference is made 
to the reasons o f the City for attempting to establish its 
own system and to the findings of the District Court at the 
time it granted the temporary injunction on August 8, 1969. 
At that same hearing, officials of the City also testified 
that the City’s primary motive in seeking to establish its 
own unitary system was to afford better educational op­
portunities for its children than would be provided by the 
County of Greensville (Transcript o f the Proceedings, 
August 8, 1969, at 120, 163, 164). However, the best sum­
mary of the purposes o f the City is provided by the opinion



7

of the District Court on March 2, 1970, after it had heard 
the evidence at the hearing on the permanent injunction in 
December 1969:

The city clearly contemplates a superior quality edu­
cational program. (P .A . 67a)

* * *
Emporia’s position, reduced to its utmost simplicity, 

was to the effect that the city leaders had come to the 
conclusion that the county officials, and in particular 
the board of supervisors, lacked the inclination to make 
the court-ordered unitary plan work. The city’s evi­
dence was to the effect that increased transportation 
expenditures would have to be made under the existing 
plan, and other additional costs would have to be in­
curred in order to preserve quality in the unitary 
system. The city’s evidence, uncontradicted, was to 
the effect that the board of supervisors, in their opinion, 
would not be willing to provide the necessary funds. 
(P .A . 75a) * * *

The Court does find as a fact that the desire of the 
city leaders, coupled with their obvious leadership 
ability, is and will be an important facet in the success­
ful operation of any court-ordered plan. (P .A . 76a)

5̂
This Court is satisfied that the city, if permitted, 
will operate its own system on a unitary basis. (P .A . 
77a)

It is these findings of the District Court, which were 
made after the evidence was fully developed, that are 
controlling. Obviously, they supersede any conflicting find­
ings made after the expedited and peremptory hearing on 
the temporary injunction.

On page 11 of the petition, petitioners state that the 
District Court concluded that the “ establishment of separ­



8

ate systems would plainly cause a substantial shift in the 
racial balance.”  The facts upon which this conclusion is 
based are these:

Combined system .............. . 66% black; 34% white

Separate systems
County ........................... 72% black; 28% white
C ity .................................. 52% black; 48% white

(P .A . 6a)

Petitioners then state that “ the District Court concluded 
that the operation of separate school systems would have 
serious adverse impact on the provisions o f the plaintiffs’ 
constitutional rights” (emphasis added) (P . 11). The Dis­
trict Court simply did not say that. Rather it said:

This Court is most concerned about the possible adverse 
impact o f secession on the effort, under Court direction, 
to provide a unitary system to the entire class of plain­
tiffs. (Emphasis added.) (P .A . 78a)

It also said:

But this [operation of a unitary system by the City] 
does not exclude the possibility that the act o f divi­
sion might have foreseeable consequences that this 
Court ought not to permit. (Emphasis added.) (P .A . 
77a)

It is clear that the District Court considered any adverse 
effects o f separate systems to be purely speculative.

Petitioners next proceed to summarize the majority opin­
ion of the Court of Appeals (P . 12, 13). That summary is 
incomplete and therefore misleading. On page 13 of the 
petition, petitioners have selected statements from the opin­
ion of the Court o f Appeals and have placed them together 
in a manner that does not accurately depict the context in



9

which they were made. The majority did not conclude that 
Emporia would not be a “ white island”  because “ there will 
be a substantial majority of black students in the county 
system.” It concluded that Emporia would not be a white 
island because of the obvious and uncontradicted fact that 
it will have a system composed of a majority of black 
students. It did not conclude that “ the effect of separation 
does not demonstrate that the primary purpose of the 
separation was to perpetuate segregation” solely because 
of the racial makeup of the two systems. It reached this 
conclusion based on all the findings of the District Court 
with respect to all the evidence presented.

Next, the petitioners state that “ [Sjince the district court 
made no explicit ‘finding of discriminatory purpose/ and 
because the school district officials advanced non-racial mo­
tives for the creation of a separate district,” the majority 
held the injunction by the District Court to have been im- 
providently entered (P. 13). Again, the decision of the 
majority was not based merely on those grounds; rather, it 
was based on the record as a whole. It should be pointed out 
that not only did the Court of Appeals state “ that there 
was no finding of discriminatory purpose,” but it also stated 
that “ the [district] court noted its satisfaction that the city 
would, if permitted, operate its own system on a unitary 
basis”  (P .A . 8a).

The following is a summary of what the Court o f Ap­
peals did, in fact, hold.

It stated that if the shift in racial balance “ is great 
enough to support an inference that the purpose”  o f the 
new school district “ is to perpetuate segregation,”  the new 
district must be enjoined (P .A . 2a).

It stated:
The creation o f new school districts may be desirable 

and/or necessary to promote the legitimate state inter­



10

est o f providing quality education for the state’s chil­
dren. The refusal to allow the creation of any new 
school districts where there is any change in the racial 
makeup of the school districts could seriously impair 
the state’s ability to achieve this goal.

* * *
If the creation o f a new school district is designed to 
further the aim of providing quality education and is 
attended secondarily by a modification of the racial 
balance, short of resegregation, the federal courts 
should not interfere. If, however, the primary purpose 
for creating a new school district is to retain as much 
o f separation of the races as possible, the state has 
violated its affirmative constitutional duty to end state 
supported school segregation. (P .A . 3a)

The Court o f Appeals then proceeded to examine the 
evidence and the findings of the District Court on the ques­
tion of the purpose of Emporia in becoming a city and in 
seeking its own school system. However, o f equal im­
portance, it also examined the effect o f the so-called separa­
tion2 of the school systems. It is impossible to determine the 
subjective purpose without considering the objective effect.

First, the Court of Appeals found that the purpose of 
Emporia in attaining city status was not to prevent or 
diminish integration. The Court stated that at the time 
Emporia became a city, July 31, 1967, “ a freedom of choice 
plan approved by the district court”  was in effect and the 
decision in Green v. County School Board, of New Kent 
Comity, 391 U.S. 430 (1968), “ could not have been antici­
pated by Emporia, and indeed, was not envisioned by this

2 Actually, this case involves “ consolidation”  rather than “ separa­
tion”  since the systems were legally separated when Emporia became 
a city on July 31, 1967. Only because of the contract which expires on 
June 30, 1971, under its own terms, did Greensville County educate 
children of Emporia in its system.



11

court.”  (P .A . 4a). The purpose of Emporia in becoming a 
city was to receive the benefits of the newly enacted sales 
tax and to eliminate other economic inequities (P .A . 4a; 
Transcript of the Proceedings, August 8, 1969, at 118, 
119).

Next, the Court of Appeals examined the purpose and 
effect of Emporia’s decision in 1969 to operate its own 
system. After pointing out that if Emporia did so the City 
would have a majority of black students in its system and 
that a six percent shift of the racial balance of the Greens­
ville County school system would be created, the Court 
stated:

Not only does the effect of the separation not demon­
strate that the primary purpose o f the separation was 
to perpetuate segregation, but there is strong evidence 
to the contrary. Indeed, the district court found that 
Emporia officials had other purposes in mind. (Empha­
sis added.) (P .A . 6a)

The Court o f Appeals then referred to the evidence of 
Dr. Neil H. Tracey, Professor of Education at the Univer­
sity of North Carolina, who testified that his studies were 
made with the understanding that it was not the intent of 
the City to resegregate8; that an examination o f the pro­
posed budget for the Greensville County schools indicated 
that it not only would not provide the funds required for in­
creased transportation expenses necessitated by the pairing 
plan, but it would not provide the funds to keep up with the 
increased costs o f operation due to inflation; that the tent­
ative budget adopted by Emporia would provide increased 
revenues to increase the quality of education for its stu­
dents ; and that the proposed system of Emporia would be 
educationally superior to Greensville’s system (P .A . 7a). 3

3 Transcript of the Proceedings, December 18, 1969, at 68.



12

The Court o f Appeals pointed out that “ Emporia proposed 
lower student teacher ratios, increased per pupil expendi­
tures, health services, adult education, and the addition of a 
kindergarten program.” (P .A . 7a).

The Court of Appeals then stated:

In sum, Emporia’s position, referred to by the dis­
trict court as “ uncontradicted,” was that effective inte­
gration of the schools in the whole county would re­
quire increased expenditures in order to preserve edu­
cation quality, that the county officials were unwilling 
to provide the necessary funds, and that therefore the 
city would accept the burden o f educating the city 
children (P .A . 7a).

Further, the Court of Appeals pointed out that because 
of the unusual nature o f the organization of city and 
county governments in Virginia under which counties and 
cities are completely independent, Emporia had no repre­
sentation on the governing body of the County or on the 
school board of the County. Thus, neither Emporia nor its 
residents have any means by which they can exert any 
influence or control whatever with respect to the education 
of the school children of the City (P .A . 7a, 8a). In conclu­
sion, the Court of Appeals stated:

The district court must, of course, consider evidence 
about the need for and efficacy of the proposed action 
to determine the good faith of the state officials’ claim 
of benign purpose. In this case, the court did so and 
found explicitly that “ [t]he city clearly contemplates a 
superior quality education program. It is anticipated 
that the cost will be such as to require higher tax pay­
ments by city residents.”  309 F. Supp. at 674. Notably, 
there was no finding of discriminatory purpose, and 
instead the court noted its satisfaction that the city 
would, if permitted, operate its own system on a uni­
tary basis (P .A . 8a).



13

The “ Statement”  portion o f the petition concludes by 
setting out rather extensive quotations from the dissenting 
opinions o f Judges Sobeloff and Winter.4

REASONS FOR DENYING W RIT

I.

The Issues Involved Are Not Of Critical Importance In The Process 
Of School Desegregation Because Of The Unique Structure Of 
Local Government In Virginia.

Petitioners are not correct when they state on page 1S of 
the petition that “ [T]his case arises out o f the repeated 
failure of the County School Board o f Greensville County 
to propose an acceptable desegregation plan.” Rather it 
arises out of the effort of petitioners to restrain the inde­
pendent City of Emporia from operating its own unitary 
school system as all other cities in Virginia are permitted 
to do.5

This case is not the usual desegregation suit involving 
the constitutional validity of a desegregation plan ( e.g., 
Swaxnn v. Charlotte-Mecklenburg Bd. of Edvtc., No. 281 
O.T. 1970).

It is not a case where school district lines have been 
gerrymandered to affect the racial makeup of schools (e.g.,

4 Again, petitioners indicate that Judge Sobeloff dissented in the 
Emporia case though he neither participated nor voted in it. If any 
significance can be attached to his views so far as this case is con­
cerned, then it should be noted that Judge Butzner, who likewise did 
not participate in it, was a part of the majority in the United States v.
Scotland Neck City Bd. of E duc.,..... F .2 d .......  (4th Cir. 1971), and
must, therefore, be assumed to be in accord with the views of the 
majority in the Emporia case.

5 The District Court found that Emporia contemplated operating 
“ a superior quality educational program” (P .A . 67a) and would, if 
permitted by the courts, “ operate its own system on a unitary basis” 
(P .A . 77a).



14

Haney v. County Bd. of Educ., 419 F.2d 920 (8th Cir.
1969)  ).

It is not a case where a school district within a county 
or city has been divided by carving out a new school district 
consisting of primarily white students (e.g., Burleson v. 
County Bd. of Election Comm’rs, 432 F.2d 1356 (8th Cir.
1970) ).

It is not a case where a new city or school district has 
been created by a special act of a state legislature (e.g.,
United States v. Scotland Neck City Bd. of Edwc.,......F.2d
......, Nos. 14929and 14930 (4th Cir. 1971)).

Rather it is a case in which the independent City of 
Emporia, which became such on July 31, 1967, under gen­
eral laws existing in Virginia since at least 18928, is seeking 
to operate its own school system, independently of that of 
the county of which it was a part prior to July 31, 1967, as 
all other cities in Virginia are entitled to do.

The decision o f the Court o f Appeals in this case does not 
constitute a precedent that would have wide spread appli­
cation or effect in the area of school desegregation because 
o f the unique structure of local government in Virginia and 
because of the factual context from which the case arises.

In Virginia, counties and cities are independent of 
each other politically, governmentally and geograph­
ically. 6

6 The present Code of Virginia provides that a town upon attaining 
a population of 5,000 may elect to become a city of the second class 
for following the procedures set forth in the Code. Title 15.1, ch. 22, 
Va. Code Ann. (1950), as amended. The law has been substantially 
the same since at least 1892. Acts of Assembly, 1891-1892, ch. 595, at 
934. Thus it is clear that the provisions under which the Town of 
Emporia acted to become a city have long been a part of the law 
in Virginia and were not enacted in any way as a result of the school 
desegregation suits or for any other racial reasons.



15

City of Richmond v. County Bd., 199 Va. 679, 684, 101 
S.E.2d 641, 644 (1958)

It is the only state in the United States having such a 
statewide system of local government.7

In Murray v. Roanoke, 192 Va. 321, 324, 64 S.E.2d 804, 
807 (1951), the Virginia court stated:

In Virginia, counties and cities are separate and 
distinct legal entities. . . . Citizens of the counties have 
no voice in the enactment of city ordinances, and con­
versely citizens of cities have no say in the enactment 
of county ordinances.

That this has been the law historically in Virginia is 
demonstrated by Supervisors v. Saltville Land Co., 99 Va. 
640, 39S.E . 74(1901).

This principle is applicable to a city that became such 
under the provisions of the law providing for the tran­
sition of towns to cities. In Colonial Heights v. Chesterfield, 
196 Va. 155, 82 S.E.2d 566, 572 (1954), the Supreme 
Court of Appeals held:

The town, upon becoming a city, separates from a 
political subdivision of which it was a part and becomes 
an independent political subdivision, except as to cer­
tain joint services specified in Code, § 15.104 [now 
§ 15.1-1005],

Schools are not listed among the services specified in 
§ 15.1-1005— that section is limited to the sharing o f the 
costs of the circuit court and its clerk, the commonwealth’s 
attorney, and the sheriff.

The Constitution of Virginia has, since 1928, vested the 
supervision of county schools in the county school boards

7 C. Bain, “ A  Body Incorporate” — The Evolution of City-County 
Separation in Virginia ix, 23, 27, 35 (1967) ; C. Adrian, State and 
Local Governments 249 (2d ed. 1967).



16

and the supervision o f city schools in the city school boards. 
V a . C o n st , art. ix, § 133 (R .A . 1).

Since at least 1919 the Code o f Virginia has affirmatively 
required the city school boards to establish and maintain a 
system of schools in each city of the Commonwealth. V a . 
C ode A n n . § 22-93 (1950).

In School Bd. v. School Bd., 197 Va. 845, 91 S.E.2d 654 
(1956), dealing with the transition of a town to a city, the 
Supreme Court o f Appeals o f Virginia held that upon tran­
sition the new city is required by law to maintain its own 
school system.8

The Court of Appeals below stressed the importance of 
the unusual nature o f local government in Virginia and 
the fact that because o f it Emporia has no representation 
on either the governing body or the school board of the 
County of Greensville (P .A . 7a). I f Emporia were to be 
compelled to remain tied to Greensville County, it would be 
helpless to exert any influence or control with respect to the 
school system attended by its children.

Since no other state has such a system of local govern­
ment, this case is not o f nationwide significance.9

8 “As a town, Covington was a part of Alleghany County whose 
public schools were operated by the county school board. When 
Covington became a city it ceased to be a part of the county, became 
completely independent governmental subdivision, and was required 
by law to maintain its own school system,” 197 Va. at 847, 91 S.E.2d 
at 656.

9 While the details of all the cases cited on page 17, footnote 10, 
of the petition are not known to counsel for respondent, it is noted 
that none arise from the State of Virginia. Because of the unique 
structure of local government in Virginia, the Emporia case could 
have little, if any, bearing on those cases. The case of Burleson v. 
County Bd. o} Election Comm’rs., 432 F.2d 1356 (8th Cir. 1970), 
it is distinguished on page 20 of this brief.



17

II.

Decision Of The Court Of Appeals Below Is Not In Conflict With 
Rulings Of This Court And Another Court Of Appeals.

Petitioners assert that the decision of the Court of Ap­
peals for the Fourth Circuit is in conflict with the decision 
of this Court in Green v. County School Bd,, 391 U.S. 430 
(1968), and with the decision of the Court o f Appeals for 
the Eighth Circuit in Burleson v. County Bd. of Election 
Comm’rs, 432 F.2d 1356 (8th Cir. 1970). Reference is also 
made to the decision of this Court in Swann v. Charlotte- 
Mecklenburg Bd. of Educ., No. 281 O.T. 1970.

An analysis of those decisions reveals that there is no 
conflict between them and the decision of the Court of 
Appeals below. Rather it is in complete accord with the 
principles enunciated by this Court in Green and in Swann. 
In making such an analysis consideration must be given to 
the facts of each case since principles of law cannot be 
applied in the abstract.

1. G reen  v . C o u n t y  S chool Bd., 391 U.S. 430 (1968) 
and S w a n n  v . C h arlo tte -M eck len bu rg  Bd. of 
E duc ., No. 281 O.T. 1970

In Green this Court held that freedom of choice plans 
could not be approved unless they result in the dismantling 
of dual systems. It there held that such a plan was not 
working in New Kent and thus could not be accepted.10

In Swann this Court examined the powers of district 
courts to require busing o f children between attendance

10 New Kent County had only two schools, one on each side of the 
county. There were 740 Negroes and 550 white students in the 
system. After freedom of choice had been in effect three years, one 
school remained all Negro and the other school had all the white stu­
dents together with 115 Negro students.



18

zones of large metropolitan school systems as an aid to de­
segregation.11

Several important principles were established by those 
decisions with which the decision of the Court o f Appeals 
below is in complete accord.

First, with respect to objectives, this Court held in Green 
that a unitary, nonracial system of schools is the ultimate 
end to be brought about (391 U.S. at 436) and in Swann 
that the objective is to eliminate from public schools all 
vestiges of state-imposed segregation (Slip Op. at 10).

In the instant case the City of Emporia would have a 
unitary, nonracial system of public education composed of 
approximately 52 percent black and 48 percent white. The 
Court of Appeals (P .A . 6a) and the District Court (P .A . 
74a, 75a) so found. The County of Greensville would also 
have such a system composed of approximately 72 percent 
black and 28 percent white (P .A . 6a).

Second, this Court held in Green (391 U.S. at 439) and 
in Swann (Slip Op. at 23) that there is no one way to ac­
complish the objectives and that each case must be judged 
in light o f the circumstances present and the options avail­
able.

In accordance with that principle, the Court o f Appeals 
below recognized that flexibility in the operation o f the 
school system is both desirable and permissible (P .A . 8a).

Third, this Court stated in Green that a plan which has 
been adopted in good faith and which has the real prospect 
of resulting in a unitary system “ at the earliest practicable 
date . . . may be said to provide effective relief” (291 U.S. 
at 439).

In Swann the Court recognized that at some point school

11 The Swann case did not involve the interchange of children be­
tween independent school districts, but rather involved the inter­
change of students between attendance zones contained in one school 
system.



19

systems will be “ unitary”  and that subsequently interven­
tion by district courts should not be necessary in the absence 
of a deliberate scheme to affect the racial composition of the 
schools ( Slip Op. at 28).

Thus, it is clear that in two of the most recent decisions 
by this Court in school desegregation cases the elements of 
the “ good faith” and of the “ purpose” o f the local authori­
ties are considered to be important factors in determining 
the acceptability o f a course o f action. Even the dissenting 
judge in this case and Judge Sobeloff in the Scotland Neck 
case laid great emphasis upon the motive and purpose o f the 
local authorities (P .A . 11a, 28a). Consideration by the 
Court o f Appeals o f the purpose of Emporia in attempting 
to set up its own system was clearly in accord with the 
decisions of this Court. Based on the findings of the Dis­
trict Court, the Court o f Appeals held that the primary 
purpose of the separation was to provide better education 
and that the local authorities acted in good faith (P .A . 6a, 
8a).

It should also be noted that this Court in Brown II  recog­
nized that consideration by the courts o f the good faith of. 
school authorities was both necessary and proper.12

Fourth, this Court in Green stated that school boards 
must come forward with plans that promise realistically to 
work now (291 U.S. at 438).

In Swann the Court said that a plan is to be judged by 
its effectiveness (Slip Op. at 21).

The Court of Appeals below complied with the mandate 
that a plan is to be judged by its effectiveness (P .A . 6a, 
8a). While it stressed the importance of the purpose and 
good faith o f the local authorities, it recognized that those 
factors must be judged in light of results. It further recog­

12 Brozvn v. Board of Educ., 349 U.S. 294 (1955), at 299.



20

nized that whether a plan will work or be effective means a 
good deal more than mathematical racial ratios.

In summary, the decision o f the Court of Appeals below 
is in complete harmony with the decisions of this Court.

2. B urleson  v . C o u n t y  B d. of E lectio n  C o m m ’rs, 432 
F.2d 1356 (8th  Cir. 1970)

In the Burleson case, by per curiam opinion, the Court of 
Appeals for the Eighth Circuit affirmed the decision of the 
United States District Court for the Eastern District of 
Arkansas.13

That case is clearly distinguishable upon its facts from 
the Emporia case.

First, in Burleson the question was whether the Hardin 
Area o f the Dollarway School District of Jefferson County, 
Arkansas, would be permitted to secede from that particu­
lar district and establish a new district within the same 
county. Apparently, in addition to the county board of edu­
cation, each school district had its own “ board of directors.” 
For all purposes other than schools, it is assumed that the 
Hardin Area would remain a part of Jefferson County. In 
the instant case, the City o f Emporia, under the law of 
Virginia, is already independent o f Greensville County'—  
politically, governmentally, and geographically.

Next, in the Burleson case the district court found:

The population of the Area is almost exclusively 
white. In the fall o f 1969 270 students residing in the 
Area were in attendance in the schools o f the District, 
and only 5 of those students were Negroes.

308 F. Supp. at 353.
In the instant case, slightly over 50 percent of the stu­

13 308 F. Supp, 352 (E.D. Ark. 1970).



21

dents residing in Emporia are Negro. Thus, while the 
Hardin system would be composed almost entirely of white 
children, the Emporia system would be composed of almost 
an equal number of Negro and white children.

In Burleson the district court held that

. . .  as of this time and in the existing circumstances the 
proposed succession cannot be permitted and will be 
enjoined (Emphasis added).

308 F. Supp. at 358.

III.

Decision Of The Court Of Appeals Below Was Plainly Right.

This Court said in Swann that “ [O ] nee a right and a 
violation have been shown,”  the district court has broad 
powers to remedy the wrong; that “ it is important to re­
member that judicial powers may be exercised only on the 
basis o f constitutional violation” ; and that “ [Jjudicial au­
thority enters only when local authority defaults.” 14 It fur­
ther said:

The basis o f our decision must be the prohibition of 
the Fourteenth Amendment that no State shall “ deny 
to any person within its jurisdiction the equal protec­
tion of the laws.”

Slip Op. at 13.
According to Green, the constitutional right o f the plain­

tiff is to attend a unitary, nonracial system. According to 
Alexander v. Holmes County Bd. of Educ., 396 U.S. 19 
(1969), at 21, it is the duty of local school authorities not to

operate a dual system based on race or color, and . . . 
to operate as [a] unitary school system[s] within 
which no person is to be effectively excluded from any 
school because of race or color.

14 Swann, Slip Op. at 11.



22

Here, there has been no violation of the constitutional 
rights of the plaintiffs as enunciated by this Court; likewise, 
there has been no default by the Emporia authorities. There 
has been no finding to the contrary. In fact, the District 
Court found that the City would operate a unitary system 
(P .A . 77a), and its previous order assures that such a 
system will be operated in Greensville County.

Only if plaintiffs are entitled as a constitutional matter 
to attend schools with a particular racial balance can it be 
held that plaintiffs’ rights have been violated. Such a hold­
ing would be contrary to the holding in Swann that:

If we were to read the holding of the District Court 
to require, as a matter of substantive constitutional 
right, any particular degree of racial balance or mix­
ing, that approach would be disapproved and we would 
be obliged to reverse. The constitutional command to 
desegregate schools does not mean that every school in 
every community must always reflect the racial compo­
sition of the school system as a whole.

Slip Op. at 19, 20.

CONCLUSION

For the foregoing reasons respondents respectfully pray 
that a writ o f certiorari be denied.

Respectfully submitted,
D . D ortch  W a r r in e r  

314 South Main Street 
Emporia, Virginia 23847

Jo h n  F. K a y , Jr .
1200 Ross Building 
Post Office Box 1122 
Richmond, Virginia 23208

Attorneys for Respondents



A P P E N D I X

VIRGINIA CONSTITUTION

§ 133. School districts; school trustees.— The supervision 
of schools in each county and city shall be vested in a school 
board, to be composed of trustees to be selected in the man­
ner, for the term and to the number provided by law. Each 
magisterial district shall constitute a separate school district, 
unless otherwise provided by law, and the magisterial dis­
trict shall be the basis o f representation on the school board 
of such county or city, unless some other basis is provided 
by the General Assembly; provided, however, that in cities 
o f one hundred and fifty thousand or over, the school boards 
of respective cities shall have power, subject to the approval 
of the local legislative bodies o f said cities, to prescribe 
the number and boundaries of the school districts.

The General Assembly may provide for the consolidation, 
into one school division, of one or more counties or cities 
with one or more counties or cities. The supervision of 
schools in any such school division may be vested in a single 
school board, to be composed of trustees to be selected in the 
manner, for the term and to the number provided by law. 
Upon the formation of any such school board for any such 
school division, the school boards o f the counties or cities in 
the school division shall cease to exist.

There shall be appointed by the school board or boards of 
each school division, one division superintendent of schools, 
who shall be selected from a list o f eligibles certified by the 
State Board of Education and shall hold office for four 
years. In the event that the local board or boards fail to 
elect a division superintendent within the time prescribed by 
law, the State Board of Education shall appoint such divi­
sion superintendent.

* * *



App. 2

VA . CODE ANN. (1950)

§ 15.1-982. Result o f census; order.—-If it shall appear 
to the satisfaction o f the court, or the judge thereof in va­
cation, from such enumeration that such incorporated com­
munity has a population of five thousand or more, such 
court or judge shall thereupon enter an order declaring that 
fact to exist and thereafter such incorporated community 
shall be known as a city and entitled to all the privileges 
and immunities and subject to all the responsibilities and 
obligations pertaining to cities o f this Commonwealth. . . .