Brief on Behalf of Appellees

    BRIEF ON BEHALF OF APPELLEES 
  

2 
:   

United States Court of Appeals 
for the Fourth Circuit 

  

No. 10,792 

  

CHARLES C. GREEN, ET AL., 

Appellants, 

County ScHOoOL BoarD oF NEw KENT 

CouNTY, VIRGINIA, ET AL., 

Appellees. 

J 

O 

Appeal from the United States District Court for the 
Eastern District of Virginia at Richmond 

  

  

FrepeEricKk T. GrAY 

Williams, Mullen & Christian 

1309 State-Planters Bank Bldg. 

Richmond, Virginia 

  

   





TABLE OF CONTENTS 

Page 

STATEMENT OF THE CASE... vi hehe tenes umsivnsnninsins 1 

STATEMENT OF FACES... ces bins, 2 

Pi.AN vOR DESEGREGATION OF SCITOOLS ..cove-amerocurecosnsunsmstomssminsomsaies 2 

Tur QUESTION INVOLVED ..........iicci couric iint finns ian 9 

ARGUMENT 

L Precdom ol Chole tic vith ies eidecisns 10 

UH. The Baculiy Quedtion ie 16 

CONCLUSION i... bc th nh in a il eta ee iis, 19 

TABLE OF CASES 

Bolling v. Shame, 247 U.S. 497 rie rer: 12 

Bradley v. School Board of Richmond, 345 F.2d 310 _.10, 12, 16, 17 

Brown v. Board of Education, 139 Fed. Supp. 470 .........cremeeeeene.. 16 

Brown v. Board of Education, 347 11S. 483 ...ucorcescisoirrsscasanssss 13 

Rogers v. Paul, 382 US, 108. ir he ie 17 

Wright v. School Bd. of Greensville County, No. 4263 E.D. Va. 

Noy 13, 1906 5... iene hernias anna 17 

  

 



 
 

  
 
 

  

 
 

 



  

United States Court of Appeals 
for the Fourth Circuit 

  

No. 10,792 
  

CHARLES C. GREEN, ET AL., 

Appellants, 

V. 

County ScHOoOL BoarD oF NEw KENT 

CouNTY, VIRGINIA, ET AL., 

Appellees. 

  

BRIEF ON BEHALF OF APPELLEES 
  

STATEMENT OF THE CASE 

On June 28, 1966, not four months ago the District Court 

approved the plan for the operation of the public schools of 

New Kent County, Virginia, as filed with the District Court 

on May 10, 1966, and as supplemented by action of the 

School Board of May 23, 1966, and filed with the Court on 

June 6, 1966. As a part of its approval of the plan the Court 

required a registration period prior to the opening of schools 

in the fall of 1966. 

Obviously, on the record before this Court, there is and 

can be no evidence as to changes in the composition of  



  

  

  

2 

student body or faculty as a result of the plan so recently 

made operative. 

STATEMENT OF FACTS 

The facts as stated by the Appellants are largely those 

shown to have existed at the time the answer to inter- 

rogatories was filed on June 8, 1965. IT Is ImporTANT TO 

Nore TuAT THE INTERROGATORIES WERE FILED MAY 7, 

1965, AND Not 1966 AND THE ANSWERS THERETO WERE 

Fieep June 8, 1965, ANp Nor 1966 As THE APPENDIX 

To AprpeELLANT’S BRIEF INDICATES ON Paces 2 Anp 8 

RESPECTIVELY. 

Since that time pupils and their parents have had two 

opportunities to select the school of their choice and the 

school board has commenced operations under the faculty 

supplement to its freedom of choice plan. Obviously, the 

statistical data for the 1964-65 school session is now of 

little value. 

The essential fact to the case is therefore, that the School 

Board has adopted and has in operation the following 

plan: 

1 

ANNUAL FreepoM or CHOICE OF SCHOOLS 

A. The County School Board of New Kent County has 

adopted a policy of complete freedom of choice to be offered 

in grades 1, 2,8, 9, 10, 11, and 12 of all schools without 

regard to race, color, or national origin, for 1965-66 and all 

grades after 1965-66. 

B. The choice is granted to parents, guardians and per- 

sons acting as parents (hereafter called “parents™) and their 

children. Teachers, principals and other school personnel 

   



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are not permitted to advise, recommend or otherwise in- 

fluence choices. They are not permitted to favor or penalize 

children because of choices. 

11. 

PuriLs ENTERING OTHER GRADES 

Registration for the first grade will take place, after con- 

spicuous advertising two weeks in advance of registration, 

between April 1 and May 31 from 9:00 A.M. to 2:00 P.M. 

When registering, the parent will complete a Choice of 

School Form for the child. The child may be registered at 

any elementary school in this system, and the choice made 

may be for that school or for any other elementary school 

in the system. The provisions of Section VI of this plan 

with respect to overcrowding shall apply in the assignment 

to schools of children entering first grade. 

111 

PuriLs ENTERING OTHER GRADES 

A. Each parent will be sent a letter annually explaining 

the provisions of the plan, together with a Choice of School 

Form and a self-addressed return envelope, by April 1 of 

each year for pre-school children and May 15 for others. 

Choice forms and copies of the letter to parents will also 

be readily available to parents or students and the general 

public in the school offices during regular business hours. 

Section VI applies. 

B. The Choice of School Form must be either mailed 

or brought to any school or to the Superintendents Office 

by May 31st of each year. Pupils entering grade one (1) 

of the elementary school or grade eight (8) of the high 

  

 



  

  

  

4 

school must express a choice as a condition for enrollment. 

Any pupil in grades other than grades 1 and 8 for whom 

a choice of school is not obtained will be assigned to the 

school he is now attending. 

IV. 

PuriLs NEwLy ENTERING SCHOOL SYSTEM OR 

CuANGING ResiDENCE WITHIN IT 

A. Parents of children moving into the area served by 

this school system, or changing their residence within it, 

after the registration period is completed but before the 

opening of the school year, will have the same opportunity 

to choose their children’s school just before school opens 

during the week of August 30th, by completing a Choice 

of School Form. The child may be registered at any school 

in the system containing the grade he will enter, and the 

choice made may be for that school or for any other such 

school in the system. However, first preference in choice of 

schools will be given to those whose Choice of School Form 

is returned by the final date for making choice in the regular 

registration period. Otherwise, Section VI applies. 

B. Children moving into the area served by this school 

system, or changing their residence within it, after the late 

registration period referred to above but before the next 

regular registration period, shall be provided with regis- 

tration forms. This has been done in the past. 

V. 

RESIDENT AND NON-RESIDENT ATTENDANCE 

This system will not accept non-resident students, nor 

will it make arrangements for resident students to attend 

public schools in other school systems where either action 

   



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would tend to preserve segregation or minimize desegre- 

gation. Any arrangement made for non-resident students 

to attend public schools in this system, or for resident stu- 

dents to attend public schools in another system will assure 

that such students will be assigned without regard to race, 

color, or national origin, and such arrangement will be ex- 

plained fully in an attachment made a part of this plan. 

Agreement attached for Indian children. 

VI. 

OVERCROWDING 

A. No choice will be denied for any reason other than 

overcrowding. Where a school would become overcrowded 

if all choices for that school were granted, pupils choosing 

that school will be assigned so that they may attend the 

school of their choice nearest to their homes. No preference 

will be given for prior attendance at the school. 

B. The Board plans to relieve overcrowding by building 

during 1965-66 for the 1966-67 session. 

VII. 

TRANSPORTATION 

Transportation will be provided on an equal basis with- 

out segregation or other discrimination because of race, 

color, or national origin. The right to attend any school in 

the system will not be restricted by transportation policies 

or practices. To the maximum extent feasible, busses will 

be routed so as to serve each pupil choosing any school in 

the system. In any event, every student eligible for bussing 

shall be transported to the school of his choice if he chooses 

either the formerly white, Negro or Indian school.  



  

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VII. 

SERVICES, FAcILITIES, ACTIVITIES AND PROGRAMS 

There shall be no discrimination based on race, color, or 

national origin with respect to any services, facilities, ac- 

tivities and programs sponsored by or affiliated with the 

schools of this school system. 

IX. 

STAFF DESEGREGATION 

A. Teacher and staff desegregation is a necessary part of 

school desegregation. Steps shall be taken beginning with 

school year 1965-66 toward elimination of segregation of 

teaching and staff personnel based on race, color, or national 

origin, including joint faculty meetings, in-service pro- 

grams, workshops, other professional meetings and other 

steps as set forth in Attachment C. 

B. The race, color, or national origin of pupils will not 

be a factor in the initial assignment to a particular school 

or within a school of teachers, administrators or other em- 

ployees who serve pupils, beginning in 1966-67. 

C. This school system will not demote or refuse to re- 

employ principals, teachers and other staff members who 

serve pupils, on the basis of race, color, or national origin; 

this includes any demotion or failure to reemploy staff mem- 

bers because of actual or expected loss of enrollment in 

a school. 

D. Attachment D hereto consists of a tabular statement, 

broken down by race, showing: 1) the number of faculty 

and staff members employed by this system in 1964-65; 

2) comparable data for 1965-66; 3) the number of such per- 

sonnel demoted, discharged or not re-employed for 1965- 

   



  

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66; 4) the number of such personnel newly employed for 

1965-66. Attachment D further consists of a certification 

that in each case of demotion, discharge or failure to re- 

employ, such action was taken wholly without regard to 

race, color, or national origin. 

Xx. 

PusLicity AND COMMUNITY PREPARATION 

Immediately upon the acceptance of this plan by the U.S. 

Commissioner of Education, and once a month before final 

date of making choices in 1966, copies of this plan will be 

made available to all interested citizens and will be given to 

all television and radio stations and all newspapers serving 

this area. They will be asked to give conspicuous publicity 

to the plan in local news section of the Richmond papers. 

The newspaper coverage will set forth the text of the plan, 

the letter to parents and Choice of School Form. Similar 

prominent notice of the choice provision will be arranged 

for at least once a month thereafter until the final date for 

making choice. In addition, meetings and conferences have 

been and will be called to inform all school system staff 

members of, and to prepare them for, the school desegrega- 

tion process, including staff desegregation. Similar meet- 

ings will be held to inform Parent-Teacher Associations 

and other local community organizations of the details of 

the plan, to prepare them for the changes that will take 

place. 

SUPPLEMENT 

“The School Board of New Kent County recognizes its 

responsibility to employ, assign, promote and discharge 

teachers and other professional personnel of the school sys- 

tems without regard to race, color or national origin. We  



    

8 

further recognize our obligation to take all reasonable steps 

to eliminate existing racial segregation of faculty that has 

resulted from the past operation of a dual system based 

upon race or color. 

“The New Kent Board recognizes the fact that New 

Kent County has a problem which differs from most coun- 

ties in that the white citizens are the minority group. The 

Board is also cognizant of the fact that race relations are 

generally good in this county, and Negro citizens share in 

county government. A Negro citizen is a member of the 

County Board of Supervisors at the present time. 

“In the recruitment, selection and assignment of staff, the 

chief obligation is to provide the best possible education for 

all children. The pattern of assignment of teachers and 

other staff members among the various schools of this sys- 

tem will not be such that only white teachers are sought for 

predominantly white schools and only Negro teachers are 

sought for predominantly Negro schools. 

“The following procedures will be followed to carry out 

the above stated policy: 

1. The best person will be sought for each position 

without regard to race, and the Board will follow the 

policy of assigning new personnel in a manner that 

will work toward the desegregation of faculties. We 

will not select a person of less ability just to accomp- 

lish desegregation. 

2. Institutions, agencies, organizations, and individ- 

uals that refer teacher applicants to the school system 

will be informed of the above stated policy for faculty 

desegregation and will be asked to so inform persons 

seeking referrals. 

 



  

9 

3. The School Board will take affirmative steps to 

allow teachers presently employed to accept transfers 

to schools in which the majority of the faculty members 

are of a race different from that of the teacher to be 

transferred. 

4. No new teacher will be hereafter employed who 

is not willing to accept assignment to a desegregated 

faculty or in a desegregated school. 

5. All workshops and in-service training programs 

are now and will continue to be conducted on a com- 

pletely desegregated basis. 

6. All members of the supervisory staff will be as- 

signed to cover schools, grades, teachers and pupils 

without regard to race, color or national origin. 

7. All staff meetings and committee meetings that 

are called to plan, choose materials, and to improve the 

total educational process of the division are now and 

will continue to be conducted on a completely desegre- 

gated basis. 

8. All custodial help, cafeteria workers, maintenance 

workers, bus mechanics and the like will continue to 

be employed without regard to race, color or national 
origin. 

9. Arrangements will be made for teachers of one 

race to visit and observe a classroom consisting of a 

teacher and pupils of another race to promote acquaint- 
ance and understanding.” 

THE QUESTION INVOLVED 

The only question involved in this appeal is whether the 

plan for the operation of schools in New Kent County,  



    

10 

Virginia, is capable of being operated in such manner as will 

prevent racial discrimination in those schools. 

ARGUMENT 

I 

Freedom of Choice 

The appellants apparently are having some difficulty es- 

tablishing their footing as they seek to attack the principle 

of “freedom of choice”. On page 4 of their brief they com- 

plain that no negro pupil had applied for admission to a 

white school and vice versa up to September 4, 1964. But 

on page 9 they acknowledged that since 1956 the parents of 

all pupils in New Kent County, Virginia “had been afforded 

an unrestricted choice” of the school which their children 

should attend. 

Unless the “freedom of choice” principle approved in 

Bradley v. School Board of the City of Richmond, 345 F.2d 

310, is now to be declared invalid the admission by the appel- 

lants that there exists an “unrestricted choice” would seem 

to bring the case squarely within the language of Bradley: 

“A system of free transfers is an acceptable device 
for achieving legal desegregation of schools.” 

Under the freedom of choice plan a 15 day choice period 

is provided, all activities of the schools are covered, trans- 

portation is without regard to race and no person may be 

subjected to penalty or favor because of the choice made. 

No real attack is made upon the operation of the plan— 

the only attack made is upon the principle of free choice. 

The movement which began to free the Negro from the 

inability to exercise a choice because of race would now— 

for purely racial motives—deny him the choice. The plain- 

 



Hi 

tiffs say in effect there can be no free choice—there must be 

intermixture. The desire of parents must fall before the 

desire of those who would require “immediate total deseg- 

regation.” 

In spite of the fact that every plaintiff in this law suit 

admits the existence of an “unrestricted choice” they would 

have the Court force others to do what they are free to do 

already. 

It is difficult to envision this as a bona fide action if the 

parents are merely asking the Court to do for others that 

which they can do by a mere application to the School 

Board. This argument flys in the teeth of the very type 

relief which was originally asked in the school cases. For 

example, James M. Nabritt, III, one of counsel for the 

plaintiffs here, suggested a decree in the District of Colum- 

bia case. On April 11, 1955, in oral argument he said: 

“Now, it would seem to me that this also could be of 
assistance to the Court in dealing with the question if, 
in a situation where the Court has as wide a supervisory 
power as in this, the Court directed the courts below 
here to enter a decree which is in effect, Mr. Justice 
Frankfurter, this judgment reversed and cause re- 
manded to the District Court for proceedings not in- 
consistent with this Court’s opinion, and entry of a 
decree containing the following provisions: 

“(1) All provisions of District of Columbia Code or 
other legislative enactments, rules or regulations, re- 
quiring, directing or permitting defendants to admin- 
ister public schools in the District of Columbia on the 
basis of race or color, or denying the admission or 
petitioners or other Negroes similarly situated to the 
schools of their choice within the limits set by normal 
geographic school districting on the basis of race or 
color are unconstitutional and of no force or effect:    



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“(2) Defendants, their agents, employees, servants 
and all other persons acting under their direction and 
supervision, are forthwith ordered to cease imposing 
distinctions based on race or color in the administration 
of the public schools of the District of Columbia; and 
are directed that each child eligible for public school 
attendance in the District of Columbia be admitted to 
the school of his choice not later than September, 1955 
within the limits set by normal geographic school 
districting; 

“(3) The District Court is to retain jurisdiction to 
make whatever further orders it deems appropriate to 
carry out the foregoing ;”’* 

We shall point out later herein that the Court embodied 

that free choice principle in its whole reasoning. 

Actually at this stage it is clear that the law in the Fourth 

Circuit is that a freedom of choice plan is a satisfactory 

method of satisfying the constitutional requirements insofar 

as pupil assignments are concerned. The remand of the 

Bradley case for a hearing on the effect of faculty segre- 

gation on a free choice plan in no wise detracts from the 

validity of the obviously constitutional proposition of free 

choice. 

We have drifted so far in the long storm of this litigation 

that the lighthouse may now be totally beyond our view 

but perhaps we can remember what it looked like. We are 

still dealing with constitutional limitations on the rights 

and powers of the States. So far as counsel knows those 

powers are limited in this and like cases by the Fourteenth 

Amendment and specifically the “Equal Protection Clause,” 

or as in Bolling v. Sharpe, supra, by the Due Process Clause 

of the Fifth Amendment. What do these clauses provide? 

* See Page 75, Vol. I Transcript in Supreme Court of the United 

States, April 11, 1955, Bolling v. Sharpe, 347 U.S. 497. 

 



13 

‘“* * * No state shall make or enforce any law which 
shall abridge the privileges or immunities of citizens 
of the United States; nor shall any State deprive any 
person of life, liberty, or property, without due process 
of law; nor deny any person within its jurisdiction the 
equal protection of the laws * * *.” (14th Amendment) 

“No person shall * * * be deprived of life, liberty, or 
property without duc process of law; * * ** (5th 
Amendment) 

Can it be seriously contended that these clauses make un- 

constitutional a system of free choice in the selection of the 

public schools which a child will attend? Can anyone hon- 

estly contend that the first Brown decision so held! Let us 

examine that decision and see! (Brown v. Board of Edu- 

cation, 347 U.S. 483) 

After holding that there is doubt that the Fourteenth 

Amendment was intended to apply to public education at all 

but that under today’s conditions it must be applied the 

Court reached the heart of its reasoning: 

“In Sweatt v. Painter (US) supra, in finding that a 
segregated law school for Negroes could not provide 
them equal educational opportunities, this Court relied 
in large part on ‘those qualities which are incapable of 
objective measurement but which make for greatness in 
a law school.” In McLaurin v. Oklahoma State Regents, 
339.1J8 637, 94 L ed 1149,.70,.8S Ct 351, supra, the 
Court, in requiring that a Negro admitted to a white 
graduate school be treated like all other students, again 
resorted to intangible considerations: °. ... his ability to 
study, to engage in discussions and exchange views with 
other students, and, in general, to learn his profession.’ 
Such considerations apply with added force to children 
in grade and high schools. To separate them from others 
of similar age and qualifications solely because of their  



  

14 

race generates a feeling of inferiority as to their status 
in the community that may affect their hearts and 
minds in a way unlikely ever to be undone. The effect 
of this separation on their educational opportunities 
was well stated by a finding in the Kansas case by a 
court which nevertheless felt compelled to rule against 
the Negro plaintiffs: 

“ ‘Segregation of white and colored children in public 
schools has a detrimental effect upon the colored chil- 
dren. The impact is greater when it has the sanction of 
the law; for the policy of separating the races is usually 
interpreted as denoting the inferiority of the negro 
group. A sense of inferiority affects the motivation of a 
child to learn. Segregation with the sanction of law, 
therefore, has a tendency to [retard] the educational 
and mental development of Negro children and to de- 
prive them of some of the benefits they would receive 
in a racial [ly] integrated school system.’ 

“Whatever may have been the extent of psychological 
knowledge at the time of Plessy v. Ferguson, this find- 
ing is amply supported by modern authority. Any 
language in Plessy v. Ferguson contrary to this finding 
is rejected.” 

So it was legally enforced segregation which the Court 

struck down—not freedom of choice. Indeed the Court 

answers our question vividly in the fourth of five questions 

which it had propounded for counsel to reargue. It asked 

for still further argument on question 4 which was: 

“4. Assuming it is decided that segregation in public 
schools violates the Fourteenth Amendment 

“(a) would a decree necessarily follow providing 
that, within the limits set by normal geographic school 
districting, Negro children should forthwith be ad- 
matted to schools of their choice, or 

   



15 

“(b) may this Court, in the exercise of its equity 
powers, permit an effective gradual adjustment to be 
brought about from existing segregated systems to a 
system not based on color distinctions?” (Emphasis 
added) 

Clearly all that concerned the Court was shall free choice 

be granted now or can there be a gradual adjustment—? 

Gradual adjustment to what? A school with racial balance? 

No!—*“to a system not based on color distinctions.” Indeed 

the Court invited freedom of choice by the very nature of 

the relief it was considering. 

When one considers that the Court had difficulty deter- 

mining that the 14th Amendment forbade compulsory segre- 

gation—it is hard to understand how the plaintiffs so easily 

find that it forbids free choice! 

In attempting to understand the law as it has developed in 

public school field, it is important to define the term “‘segre- 

gation” and the term “desegregation.” Plaintiffs use the 

term ‘segregation’ as though it means any situation in which 

all pupils in a particular school are of one race. They ap- 

parently contend that even so defined segregation is uncon- 

stitutional. If that be true it is unconstitutional for Colonial 

Heights, Virginia, to engage in public education at all for its 

entire population is white. Obviously then, a wholly white 

or a wholly colored school does not necessarily violate the 

Constitution. The missing ingredient is someone who is 

denied admission—someone who is discriminated against. 

Thus we come to the meaning of the term just as Webster 

defines it. 

In Webster’s New Collegiate Dictionary the terms segre- 

gate and segregation are defined as follows: 

segregate—Set apart; separate; select. To separate or 

cut off from others or from the general mass; to isolate; 
seclude.  



  

16 

segregation—Act of segregating or state of being segre- 
gated; separation from a general mass or main body; 
specif., isolation or seclusion of a particular group of 
persons. 

We submit that when the State stops acting, segregation 

no longer exists; for segregation is the result of action—a 

setting apart, separation or selection. 

Desegregate is defined in that same work as follows: 

desegregate—To free (itself) of any law, provision, 
or practice requiring isolation of the members of a 
particular race in separate units, esp. in military serv- 
ice or in education. 

Under that definition our schools are desegregated ! 

On remand to the District Court the original Brown case 

resulted in the following statement by that Court: 

“Desegregation does not mean that there must be an 
intermingling of the races in all school districts. It means 
only that they may not be prevented from intermingling 
or going to school together because of race or color.” 
(139 Fed. Supp. 470) 

Bearing in mind those definitions and decisions we submit 

that the Bradley case in this Court established a correct 

principle and we need only determine now whether the 

adoption of the faculty supplement to the “freedom of choice 

plan” satisfies the Supreme Court’s action in the Bradley 

case. 
II 

The Faculty Question 

The school plan under consideration provides machinery 

which will obviously eliminate a condition in which there is a 

school staffed exclusively with teachers of one race. 

S 

   



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The District Court found the plan to be in compliance 

with the requirements stated by it in Wright v. School Board 

of Greensville County, No. 4263 E.D. Va. May 13, 1966. 

(See Appendix to Appellants’ Brief) Paragraph 3 of the plan 

supplement (page 9 herein) states that the School Board 

will take affirmative steps to allow teachers presently em- 

ployed to accept transfers to schools in which the majority 

of the faculty members are of a race different from that of 

the teacher to be transferred.” The word accept, of necessity 

means that such transfers will be offered. 

The Supreme Court of the United States has not estab- 

lished a requirement for the total desegregation of faculties 

which appellants seek. (Appellants Brief p. 8) 

In Bradley the Court reversed the 4th Circuit because it 

had approved “school desegregation plans without consider- 

ing, at a full evidentiary hearing, the impact on those plans 

of faculty allocation on all alleged racial basis.” 

If the Court intended to say that there must be “total 

desegregation of faculty” or even if it intended to say that 

faculty segregation “per se” is unconstitutional or “per se’ 

makes invalid a pupil assignment plan it certainly could not 

have chosen a poorer way to express its intentions. Why re- 

mand for a hearing on what effect such segregation will have 

if such segregation “per se” is void? 

The Court has held only that they are entitled to prove 

that faculty segregation makes a free choice plan inadequate. 

It said that again in Rogers v. Paul, 382 U.S. 198, 15 L.Ed 

265. 

“Two theories would give students not yet in desegre- 
gated grades sufficient interest to challenge racial al- 
location of faculty: (1) that racial allocation of faculty 
denies them equality of educational opportunity with- 
out regard to segregation of pupils; and (2) that it 
renders inadequate an otherwise constitutional pupil  



    
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desegregation plan soon to be applied to their grades. 
See Bradley v. School Board, supra. Petitioners plainly 
had standing to challenge racial allocation of faculty 
under the first theory and thus they were improperly 
denied a hearing on this issue.” 

In this case there has been no showing and no effort to 

show that the freedom of choice plan is inadequate—indeed 

appellants admit an “unrestricted choice.” 

We have made this argument out of a good faith belief 

that we are not required under the Constitution to desegre- 

gate the faculty. We likewise submit that the Civil Rights Act 

of 1964 clearly does not require such and that the “Guide- 

lines” of the Department of Health, Education and Welfare 

in that area are ultra vires and indeed in direct conflict with 

the express direction of the Congress. 
Title VI of the Act contains the “fund cut-off” provisions 

under which H.E.W. is operating. Section 604 provides, 

“Nothing contained in this title shall be construed 
to authorize action under this title by any department 
or agency with respect to any employment practice of 
any employer, employment agency, or labor organi- 
zation except where a primary objective of the Federal 
financial assistance is to provide employment.” 

What could be clearer as to the policy of the Nation’s 

legislature? 

Having made this argument in the good faith belief that 

neither the Constitution nor the Civil Rights Act requires 

it, we point out that the school plan provides for faculty 

desegregation. 

The desegregation of faculties in the public schools will 

require time, patience, tolerance, good judgment on the part 

of the administration, willingness on the part of teachers 

   



  

19 

and extreme care and skill on the part of those teachers who 

commence the process. We submit that the plan which we 

have adopted will permit a constructive beginning in a field 

which could do much to destroy public education—we sin- 

cerely trust that the Court will not substitute its judgment 

for that of the school administration in an area in which the 

administration’s judgment should be better calculated to 

meet local conditions. 

The plan as adopted provides for the employing of staff 

without regard to race, desegregated administrative and 

staff meetings, a provision that teachers employed in the 

future will be subject to desegregated assignment and an 

undertaking to encourage the faculty now employed to make 

transfers which would desegregate. More should not be 

required. 

CONCLUSION 

We respectfully submit that the judgment of the District 

Court is plainly right and should be affirmed. 

County ScHOoOL BoArD oF NEW 

KENT CouNTY, VIRGINIA AND 

Byrp W. Long, 

Division Superintendent of Schools 

By: Freperick T. GrAY 

Of Counsel 

FrepERICK T. GRAY 

Williams, Mullen & Christian 

1309 State-Planters Bank Bldg. 

Richmond, Virginia 23219