Bradley v. School Board of City of Richmond, Virginia

MEMORANDUM

MERHIGE, District Judge.

The hearing on the issues currently before the Court in this school desegregation case, which has been before the Court in one posture or another for many years, encompassed weeks of trial, involving eight separate groups of parties, each represented by a team of lawyers, and included the introduction of more than three hundred and twenty-five exhibits.

The primary defendants in the instant issue are members of the Virginia State Board of Education; the State Superintendent of Public Instruction; and the members of the respective school boards and boards of supervisors of Henrico and Chesterfield Counties, both of which adjoin the City of Richmond, Virginia; and the School Board and City Council of the City of Richmond.

The task of complying with the requirements of F.R.Civ.P. 52 in setting out the Court’s findings of fact and conclusions of law requires that this memorandum be divided generally into a brief history of the litigation, general findings of fact and conclusions of law, and a section containing precise and specific findings as illustrative instances of the more general findings.

The Court has jurisdiction over all necessary parties in this appropriate class action, 28 U.S.C. § 1343 (3) and (4); 42 U.S.C. § 1983 ; Rule 23(a) and (b) (2) of the Federal Rules of Civil Procedure.

Excerpts from this Court’s opinion in Bradley v. School Board of City of Richmond, D.C., 317 F.Supp. 555 (1970), establish the present stage of this litigation. At the time, the schools of the City of Richmond were being operated under a freedom of choice plan, and the plan was approved primarily to insure the opening of schools on the then planned date in September 1970.

History of Litigation:

[Excerpts from

Bradley,

supra]

“On March 10, 1970, the plaintiffs filed a motion for further relief, based upon the mandates of our appellate courts requiring school boards to put into effect school plans which would promptly and realistically convert public school systems into ones which were unitary, nonracial systems, removing all vestiges of racial segregation.

On March 12, 1970, the Court ordered the defendants to * * within ten

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days from this date, advise the Court if it is their position that the public schools of the City of Richmond, Virginia, are being operated in accordance with the constitutional requirements to operate unitary schools as enunciated by the United States Supreme Court.’

On March 19, 1970, defendants filed a statement to the effect that ‘they had been advised that the public schools of the City of Richmond are not being operated as unitary schools in accordance with the most recent enunciations of the Supreme Court of the United States,’ and further that they had ‘requested the Department of Health, Education and Welfare to make a study and recommendation as to a plan which would ensure the operation of a unitary school system in compliance with decisions of the United States Supreme Court,’ said plan to be ready by May 1, 1970.

'A pre-trial conference was held in open court on March 31, 1970, at which time the Court having some doubt as to the effect or intent of the defendants’ statement of March 19, 1970, ‘that they had been advised that the public schools of the City of Richmond are not being operated as unitary schools in accordance with the most recent enunciations of the Supreme Court of the United States,’ inquired as to whether defendants were desirous of an evidentiary hearing as to the plan they were then operating under, i. e. freedom of choice.

The defendant school board, by counsel, advised the Court that such a hearing would not be necessary and admitted that their freedom of choice plan, although operating in accord with this Court’s order of March 30, 1966, was operating in a manner contrary to constitutional requirements.

As a consequence thereof, the Court on April 1, 1970, entered a formal order vacating its previous order of March 30, 1966, and mandatorily enjoining the defendants to disestablish the existing dual system of schools and to replace same with a unitary system, the components of which are not identifiable as either ‘white’ or ‘Negro’ schools.

The defendant school board was directed to file its proposed plan by May 11, 1970. Plaintiffs were to file exceptions by June 8, 1970, and hearings were set for June 19,1970.

The Court heard and considered motions to intervene and permitted all who so moved to intervene, pursuant to Fed. Rules Civ.Proc. Rule 24(b), 28 U.S.C.

Exceptions to the H.E.W. plan were filed by the plaintiffs and those intervenors described as Northside residents.

The hearing on all proposed plans and exceptions thereto was commenced on June 19, 1970, and concluded on June 26, 1970, at which time the Court, recognizing the necessity for expeditious rulings and intending to file these more detailed findings of fact and conclusions of law, advised the defendant school board that its proposed H.E.W. plan was not acceptable — a conclusion which the Court felt then and still feels should have been patently obvious in view of the opinion of the United States Court of Appeals for the Fourth Circuit in Swann v. Charlotte-Mecklenburg Board of Education, 431 F.2d [138] (4th Cir. 1970), which had been rendered on May 26, 1970.

STUDENT POPULATION BY RACE UNDER FREEDOM OF CHOICE IN EFFECT 1969-70

As of May 1, 1970, the Richmond public school system enrolled approximately 52,000 students. The racial composition of the school student population was roughly 60% Black and 40% White. The board operated 61 school facilities.

High Schools

Of the seven high schools, three were 100% Black; one was 99.26% White; one was 92% White; one 81% White and one 68% Black, the latter being John Marshall located on the Northside of the City.

Middle Schools

Of the middle schools, three were over 99.91% Black (99.92%, 100%, 100%); one was 88% Black; one 73% Black;

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three were over 91% White (91%, 97%, 98%), and one was 69% Black.

Elementary Schools

Seventeen elementary schools were 100% Black; four others were in excess of 99.29% Black; one was 78% Black; one was 37% Black; and another was 30% Black.

Two schools were 100% White; thirteen others were 90% or better White; two others were 86% or better White; five others were between 53% and 70% White.

As to the twelve schools with special programs, two were 100% Black; one was 92% Black; one was 83% Black; two others 60% or better Black; four schools had White students ranging from 78% to 100%; two others were 53% or better White.

Faculty and Staff

Out of a total faculty and staff of 2,-501, excluding special program schools,

4 had 100% White faculty and staff;

13 had 100% Black faculty and staff;

16 others had 90% or better White faculty and staff;

12 others had 90% or better Black faculty and staff;

8 others had 80% or better White faculty and staff;

4 others had 80% or better Black faculty and staff.

Faculty and Staff Ity Area

East End side of City 92.2% Black — 7.8% White

Southside area 30% Black — 70% White

Annexed Area 2.5% Black — 97.5% White

West End — Northside 50.6% Black — 49.4% White

There is little doubt that under freedom of choice Richmond public schools had not achieved a unitary system as required by law—see Green v. County School Board of New Kent,

supra

[ 391 U.S. 430 , 88 S.Ct. 1689 , 20 L.Ed.2d 716 ]. In 1965 the defendant school board was directed to desegregate the faculties and staffs of the public schools, Bradley v. School Board of City of Richmond, 382 U.S. 103 , 86 S.Ct. 224 , 15 L.Ed.2d 187 (1965); yet out of a total of 658 faculty and staff members in the East End area schools, 607 were Black and 51 White; in the Southside area schools, 108 were Black and 252 were White; in the West End-Northside area schools, 459 were Black and 448 were White (even there the assignment of faculty and staff was such as to create in the separate schools disparities ranging from 57.1% White and 42.9% Black in one school to other schools in which there were either 100% Black or 100% White).

That the respective Richmond public schools with rare exception, were as to student population and staff readily identifiable as either Black or White schools is too obvious to warrant any further discussion. The defendant school board’s admission in this regard was well warranted, and the Court so finds.

De Jure Segregation

The City of Richmond’s present pattern of residential housing contains well defined Black and White areas, which undoubtedly is a reflection of past racial discrimination contributed in part by local, state and federal government.

The City of Richmond has itself described the residential pattern of development as being one in which there has been ‘a total isolation and segregation of the Negro.’

Schools have been built on land in which the deeds contain restrictive covenants precluding the use of property by any other than those of the Caucasian race.

Seven years after the

Brown

decision the officials of the city, the school board and the Richmond Redevelopment and Housing Authority were describing schools as Black or White.

Urban renewal sites have generally been selected in well defined Negro residential areas; urban renewal is to a great extent sponsored by agencies of the Federal Government. Local housing authorities or urban renewal authorities such as the Richmond Redevelopment Authority present their proposals to the United States Department of Housing and Urban Development, who in turn review the proposals to ascertain whether they meet federal criteria for funding purposes.

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Prior to 1964 public housing projects were built in consideration of racial character and the ultimate uses thereof. They were built for either black or white occupancy. In Richmond they have been established according to racial identity. Between the passage of Title VI of the 1964 Civil Rights Act and 1967, tenants’ selection policy could be generally characterized as a freedom of choice, and there was little change in racial character of occupancy of public housing projects.

There is a direct relationship between the selection of sites for public housing projects and the selection of sites for public schools.

Racially segregated housing patterns have resulted to a great extent in limiting options available to black persons to occupy such housing.

The Blacks have generally been ‘locked in’ so to speak, by the additional factor that for a substantial portion of the time in which Federal Housing Administration operated separately from the Department of Housing and Urban Development, of which it is now a part, its policy was to refuse to insure home loans in those areas which were not racially homogeneous.

Statutes such as we had in Virginia (and in other states, many outside the South), which required racial segregation in housing and schools, as well as restrictive covenants limiting the use and occupancy of land and dwellings to members of the Caucasian race, have long term effects which are not and have not diminished by the lifting of such restrictions. Indeed, even now, some 22 years after the outlawing of restrictive covenants, and years after the outlawing of

discriminatory

statutes and ordinances in Virginia, the facts are that there are only a few areas in the City of Richmond which are considered ones of a transitional nature.

That private discriminatory actions have made their contribution to the racially segregated housing patterns in Richmond is evidenced by the fact that most subdivision deeds in the area contain racially restrictive covenants. Only four years ago the City purchased land for use by the school board the deed to which contained a racially restrictive covenant. Racially restrictive covenants were included by Lawyers Title Company in abstracts in the city right up to 1969.

The City of Richmond has always permitted higher population densities in black areas than in its white areas.

Knowledgeable people in the field of real estate are reasonably certain, or as expressed by one expert in the field ‘could probably guess, with good certainty, the racial acceptability, if you want to use that word, from almost any ad in the paper.’ As late as June 23, 1970, there were ads in the local newspapers stating at least two properties were available for sale to ‘anyone.’

While the requirements for membership in the Richmond Board of Realtors, a private group of real estate brokers, have no relation to race, there has been and still may be, according to uncontradicted testimony, a clause in the code of ethics of the realtors to the effect that one could not disturb the white community by selling property therein to blacks, although certain areas of the city would be offered to non-whites by all realtors once the board of realtors determined that an area was one of transition and a home had been sold to Blacks in a particular block, and that block was determined by the board to have been ‘broken.’

Defendants’ Exhibit 18 graphically shows that black areas are generally in the inner city and transition areas are without exception immediately contiguous to the already existing black areas.

The combination of public and private discrimination which has been inflicted upon the Negroes is perhaps best described in the Model Neighborhood Planning Grant application made by the City of Richmond to the Department of Housing and Urban Development as recently as two years ago. In describing the virtually all Negro population of the area for which the application was made the City stated, ‘The racial profile of the

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Model Neighborhood does not provide an ethnic mix which is representative of total city population, but reflects the total isolation and segregation of the Negro within the city’s residential pattern of development;’ and later in the same application the City stated, ‘Community neglect of education is illustrated by the fact that only two of the eight schools in the Model Neighborhood area are less than ten years old, the other six are over thirty years old;’ and still further, ‘Children do not read and spell correctly. Dropout rate in the schools is too high. Children are not able to speak correctly. Racial discrimination and segregation is visible.’

In the same application in reference to housing the city stated, ‘Availability of housing is limited because of the pattern of racial segregation in the community;’ and still further, ‘Many Negroes with the ability to pay for better housing are confined * * * by social constraints;’ and ‘Housing available to Negroes in Richmond is limited as in most major United States cities by racial discrimination in the sale and rental of housing;’ and ‘Discrimination tends to polarize the Negro population into confined areas * * The same application stated, ‘As a rule, the Negro schools are older and occupy smaller sites than the white schools.’

H.E.W. Plan

Pursuant to this Court’s order of April 1, 1970, directed to the defendant school board, to create a unitary system of schools, the board for all practical purposes referred the matter to the Division of Equal Educational Opportunities, associated with the United States Office of Education, Department of Health, Education and Welfare.

A team from that division, headed by a program officer, commenced the preparation of a plan for the operation of the public schools of Richmond and presented their suggested plan to the school board on April 30, 1970. The board approved the plan as submitted, with a minor change concerning the incoming senior classes of the respective high schools in the system, and a change as to suggested faculty assignment. The board’s plan did not, as suggested by H.E.W., propose to assign teachers and staff so as to approximate, at each facility, the ratio of Black to White teachers in the system as a whole. The board amended that portion of the H.E.W. plan to provide that assignments of teaching and other personnel would be made so as to provide ‘substantial integration of same,’ which was interpreted by the board to mean a 20% variance on either side of the actual system-wide ratio.

The H.E.W. team secured information from the school administration as to building capacities, enrollments, condition of the school buildings, acreage of the building playgrounds, etc. Each school in the system was visited by groups of two members of the team. Interestingly enough, no detailed transportation information was requested by the team of the school administration, nor was any furnished to them. The evidence disclosed that the H.E.W. team never conferred with the school board. Although it was aware that some limited bus transportation was provided by the school board, and that there was an existing public transportation network, no consideration was given to same by H.E.W. by reason of the fact that by unwritten H.E.W. policy, which apparently was then in effect, transportation resources which .could be utilized by a school board were not to be considered and, obviously, since no detailed transportation information was requested or furnished to the H.E.W. people, none was considered.

While the H.E.W. team presumably drafted a plan to desegregate the existing dual system and to provide for a unitary school system with ‘as much integration, desegregation as possible,’ to quote the witness who testified that he was in charge of the development of the plan, amazingly enough no consideration was given as to the race of the children whom they sought to assign to the school facilities.

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The H.E.W. plan was basically a zoning plan, with some clustering of schools. In setting the zones for the various schools, the drafters of the plan considered the capacity of the school buildings, the proximity of the buildings to the pupil population, and factors such as the safety hazards on the immediate approaches to the schools in relation to where the pupils lived. The plan was, in essence, a neighborhood school plan— a plan which under certain circumstances undoubtedly would be commendable. By reason of the residential patterns in the City of Richmond, however, wherein there are with rare exceptions distinct White areas and distinct Black areas, a true neighborhood school plan of necessity can result only in a system in which there are Black schools and White schools and not just schools.

As the Court has already stated and found as a fact, Negroes in Richmond live where they do because they have no choice. Housing is generally not available in other areas of the city.

In the East End of the city, schools therein would be composed of the following:

4 schools would be 100% Black

9 schools would be between 93 and 99.65% Black

1 school would be 88% Black

1 school would be 68% Black

1 school would be 64% Black

Included in the 16 schools aforementioned are two high schools, one of which would have a 96% Black student population and the other 88% Black student population.

In the Southside area of the city the percentages would be as follows:

1 school would be 58% White

1 school would be 59% White

1 school would be 72% White

1 school would be 74% White

1 school would be 84% White

1 school (the Senior High School) would be 72% White

In the West End and Northside of the city, the percentages generally would be as follows; with a total of 19 schools (8 schools being paired) the three high schools would be as follows:

1 school would be 91% Black

1 school would be 72% Black

l school would be 72% White

and of the elementary and middle schools:

3 schools would be 100% Black

1 school would be 97% Black

1 school would be 96% Black

1 school would be 92% Black

1 school would be 80% Black

1 school would be 64% Black

1 school would be 61% Black

1 school would be 54% Black

1 school would be 51% Black

1 school would be 83% White

2 schools would be 80% White

1 school would be 72% White

1 school would be 60% White

It is patently obvious that the majority of those schools, as in the East End, are readily identifiable as either a Black or a White school.

In the newly annexed area of the city, an area which is almost all White, under the proposed H.E.W. plan the percentages would be as follows:

1 school (the high school) would be 99.26% White

2 schools would be 100% White

6 schools would be between 95-98% White

1 school would be 89% White

As a consequence, each of the schools is readily identifable as being a White school.

The burden is upon the school board to erase the racial identity of schools, and this the H.E.W. plan has failed to do.

Accepting the testimony offered by the school board in support of the H.E.W. plan in a literal fashion, the Court finds that (1) no consideration was given to race in the preparation of the plan — a theory which has long passed on; and (2) the plan was drawn in spite of the awareness of the school board of the pattern of residential segregation within the City of Richmond.

The cases are legion in which the courts have consistently stated that regardless of the method used by a school board, whether it be freedom of choice, geographic zoning, pairing, or any other method, they may not continue the operation of a dual system of schools.

Whereas, as heretofore pointed out by the Court, all of the difficulties which this Court now faces were not in whole created by the actions of the school board alone, it is patently obvious that school construction and faculty assign

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ments, coupled with all of the other discriminatory practices engaged in and encouraged by local, state and federal agencies, as well as private discriminatory practices, require that the plan submitted be disapproved by this Court on the ground that, while the assignment of pupils to neighborhood schools is undoubtedly both a sound and desirable concept, it cannot in this Circuit be approved if residence in a neighborhood is denied to Negro pupils solely on the ground of color, as this Court has found.

The City of Richmond and Annexation

The City of Richmond is surrounded on all sides either by Chesterfield or Henrico County. On January 1, 1970, under an order of annexation entered in the Circuit Court of Chesterfield County, the City of Richmond was granted certain territories of Chesterfield County.

The exhibits before this Court indicate that during the trial of that litigation it was represented by the City of Richmond that the entire area of the present city limits (including the area that was successfully annexed) is anticipated to be within a 30 minute maximum in travel time for one going into or out of the center of the city.

As a consequence of that annexation, it is common knowledge that it was estimated that there were brought into the city limits approximately 40,000 additional residents, and it was estimated during that trial, which was not concluded until July of 1969, that prior to the annexation the City of Richmond was composed of approximately 218,000 persons. Included in the newly acquired citizens of Richmond was a school population of approximately 8,135 students (it was anticipated that this would be the number from the annexed area attending Richmond schools commencing in September 1970). Of that total student population, 97.5% were of the White race and 2.5% (206) were Black. Therefore the Court concludes that the racial composition of the newly acquired territory is overwhelmingly White.

The annexation decree provided that there would be turned over to the City of Richmond upon payment of certain sums thirteen school properties. Those buildings, which the city acquired from the county, would not have sufficient space to take care of all the student population living within the annexed area, there being 3,000 more students than there was building space, and it was agreed that the Richmond school board would provide transportation for children in the annexed area until such time as public transportation becomes available. The agreement provided that Chesterfield County would take care of the excess students at the elementary level until September of 1971, and the excess secondary students until September of 1972.

The Court decree itself, which granted to Richmond approximately 23 square miles, provided that the City of Richmond would construct the necessary schools to serve the annexed area at an estimated cost of fifteen million dollars, which included reimbursement to the Chesterfield County school board for its costs in the construction of three elementary schools for which the Chesterfield County school board was to acquire sites approved by the city at prices to be approved by the city, and was to undertake to build the three elementary schools aforementioned to city specifications and design as directed by an architect selected by the city at contract prices approved by the city. In this connection, the sites have been acquired although no construction has been commenced by reason of an injunction entered by this Court.

The Court finds that the site selection for the elementary schools was made without consideration of the city’s being required to effectuate a unitary school system. As one witness stated, most of the work in connection with that aspect of what apparently was a consent decree < * •* was done jn one night down at the Chesterfield Courthouse.’

The burden is on the school board to show that any new construction will effectuate and assist in the establish

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ment of a unitary system as distinguished from hindering same.

Of the school properties operated by the defendant school board, 28 have been constructed for over 50 years and one has been in use since 1881.

Transportation

There is nothing special about the utilization of buses in connection with the Richmond school system. For years school buses have taken students across the James River to classes while the schools were operated in a segregated manner. In the last school year students rode regular V.T.C. service routes across the James River to schools. While the Virginia Transit Company buses all display signs reading ‘Caution — School Children,’ their buses are not the conventional yellow school bus and hence do not meet the required standards of the Virginia State Department of Education in order to be classified as school buses under laws, concerning eligibility for reimbursement for operating costs.

The Commonwealth of Virginia financially assists only county or city operated school bus systems which conform to certain regulations. Briefly, the legislature of Virginia appropriates a lump sum of money. This money is distributed according to a formula that the State Board of Education has adopted and actually amounts to a division of the funds on the basis of 40% for pupils transported in the previous year, 40% for miles the bus has traveled the previous year, and 20% for buses in use during the current year. The appropriations made by the legislature of Virginia for the past school year in assisting localities to defray the cost of transporting students was $9,-140,460.00.

Over 60% of the students attending public schools in Virginia were transported on school buses as defined by the State Board of Education. The operating cost per student in those cities operating school buses throughout the state averaged $23.02 for the year 1968-69. This represented an average of 122 students per each bus operated.

The operating cost per student for counties during that year was $30.61, based on an average of 87 students per bus. The average cost of operating a school bus in Virginia during the school year 1968-69 for cities was $2,814.00, for which the cities were reimbursed by the state sums approximating half of these operative costs.

School boards may, under Virginia law, provide for the transportation of pupils. Over half a million students were transported throughout the state of Virginia during the school year 1968-69. During the school year 1968-69 the average number of pupils transported per bus in the cities of Virginia was 122; the average miles per bus per day was 42 — ranging from 18 to 90 miles. In order to be eligible for state financial assistance, a bus must travel a minimum of 16 miles per school day. Statistics show that children transported on school buses are safer than those who travel on foot.

During the 1968-69 school year approximately I8I/2 million school children were bused to school each day in the United States.

The 63-66 passenger capacity school buses heretofore referred to as having been purchased by the school board for use in transporting children in the newly annexed area were purchased at a cost of $7,500.00 per bus.

Were the system for the operation of schools in the City of Richmond the same this coming year as the year 1969-70, it can readily be seen that it was anticipated that approximately 10,000 students would have been transported either by school board buses or V.T.C. on a daily basis during the school year, as contrasted with plaintiffs’ proposed plan which would require, if implemented, the transportation of approximately 15,000 students; and if all children living more than one mile from the school to which they would be assigned under the school board’s recently submitted plan, hereinafter referred to as the board’s second plan, were transported, transportation facilities would be required to accommodate 15,903 students.

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Assuming further that the school board’s estimate that of those 15,903, approximately one half, so it is anticipated, would provide transportation of their own in one foi*m or another, it still would require transportation of 7,951 students using the facilities of the Virginia Transit Company, plus the 4,991 to be transported under the direct auspices of the school board, for a total of 12,942 students.

The Court finds further that unquestionably, regardless of what plan may ultimately be approved, the children in the newly annexed area of Chesterfield will require transportation by virtue of the physical surroundings, i. e. lack of sidewalks, etc.

Defendant School Board’s Second Plan

At the conclusion of the hearing on June 26, 1970, the Court announced from the bench its inability to accept the H.E.W. plan for the reasons stated in the record of that hearing, and the Court adopts and incorporates herein its findings and conclusions as enunciated from the bench at that time. The Court did, as heretofore set out, grant leave to the school board to submit another plan if they so desired. That plan was filed on July 23, 1970, and a hearing on same was conducted on August 7, 1970.

The plan itself, of necessity, was drafted with a view in mind to utilize transportation where required. The Court finds from the evidence that the Virginia Transit Company can accommodate such additional volume of transportation as may be required to implement this second proposed plan.

While the Court must frankly state that more will have to be done to so conform to the law as interpreted by the Fourth Circuit and the United States Supreme Court, it is obvious that an effort has been made by the defendant school board to improve its former suggested presentation. For example, their plan now provides for majority to minority transfers at the cost of the school board. They have amended their suggested faculty assignments to conform to the requirements of law.

High Schools

Two of the high schools under the proposed plan are readily identifiable — Huguenot’s student population will be 71% White and 29% Black; John F. Kennedy’s student population will be 71% Black and 29% White.

Two other high schools have a disproportionate number of Black to White students. Nevertheless, the progress that has been made is evidenced in the comparison of racial mix so designated in Appendix C.

Middle Schools

At the middle school level, certain of the schools remain identifiable as Black or White.

Elementary Schools

That portion of the proposed plan which the Court finds most difficult to approve has to do with the elementary level, for unfortunately almost 9,000 Black students attending 13 schools will be attending schools the population of which will be 90% or more Black, and 4 schools will remain all White. In addition, other elementary schools are racially identifiable.

The Court, bearing in mind the rationale that a segregated school is inherently unequal and recognizing further that those students who have been and are being subjected to segregated education in the public schools are, regardless of race, having thrust upon them educational infirmities which are constitutionally impermissible, is much disturbed about the racial composition anticipated under the school board’s plan for the eight schools heretofore referred to.

It must be understood that the Court would, in its opinion, be duty bound to reject the school board’s plan under consideration were the plan one which had been submitted for consideration in sufficient time for the board to accomplish

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that which is required by law for the opening of school in September. This plan, which the Court is approving on an interim basis, is being approved by reason of the fact that it is the school board’s plan, that they consider it educationally sound and capable of immediate implementation.” (End of excerpt from

Bradley, supra.)

Joinder of State and County Defendants:

In December 1970, the Court granted leave to have the present State and County officials joined as party defendants. See, Bradley v. School Board of City of Richmond, D.C., 51 F.R.D. 139 .

By April 1971, the Court, after additional hearings wherein the further issues now before the Court in reference to the joined defendants were not raised, approved one of three plans then before the Court for the operation of the schools of the City of Richmond for the year 1971-72. See Bradley v. School Board, 325 F.Supp. 828 (1971). The plan, designated Plan III, is the one under which the city schools are currently operating.

1

The vast amount of evidence taken at the latest hearing, and the seeming complexity of the issues raised, dictate that the Court’s treatment thereof cannot, unfortunately, be adequately set out in summary findings.

The plaintiffs and the School Board of the City of Richmond, moving parties as to the issues under consideration, take slightly variant positions; their differences, however, are not significant for the purposes of this memorandum opinion. Briefly, these parties contend that the public schools of the existing city system, with a majority black population, are racially identifiable as currently administered, when viewed, as they contend it should be, as part of the state-wide educational plant which is dedicated in part to fulfilling the needs of the Richmond metropolitan area, including the city and the two adjoining counties. They allege further that discriminatory acts on the part of the now principal defendants have in the past and still do contribute to produce and maintain what when viewed in the context aforementioned, amounts to dual school systems. In addition, they contend that unless the requested relief is granted, the pupils of the City of Richmond schools, and particularly members of the plaintiff class, will not receive the equality of education to which they are constitutionally entitled.

The proponents of the relief sought contend that a greater degree of desegregation can and should be afforded in what was, and even now is, a dual system. It is their position that the complained of situation has been brought about by, among other things, school division boundaries created and maintained by the cooperative efforts of local and central State officials. The defendants deny the factual allegations and challenge the legal conclusions.

A principal, though not the sole, issue is whether the constitutional duties of appropriate officials, central and local, are of such limited extent as to preclude the granting of the relief called for.

General Findings of Fact and Conclusions of Law

The Court concludes, in the context here presented, that the duty to take whatever steps are necessary to achieve the greatest possible degree of desegregation in formerly dual systems by the elimination of racially identifiable schools is not circumscribed by school division boundaries created and maintained by the cooperative efforts of local

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and central State officials.

2

The Court also concludes that meaningful integration in a bi-racial community, as in the instant case, is essential to equality of education, and the failure to- provide it is violative of the Constitution of the United States.

3

A brief examination of the current data and that of recent years showing pupil assignment patterns in schools of the three political subdivisions of Richmond, Henrico and Chesterfield, shows both great disparities in 1971 racial composition, making both individual facilities and entire systems racially identifiable and also a very recent history of the maintenance of a great number of one-race schools. Some such still exist. The recent statistical history of these school divisions is set forth in accompanying tables. Appendix “A”.

Racial identifiability of schools and school systems is both a legal concept — a conclusion of law, ultimately- — and a fact of major significance to educators and lay persons. For the law’s demands parallel those of educators. Although some school authorities have been slow to accept the fact, it is true that the constitutional wrong condemned in

Brown

imposed, and continues to do so, genuine damage upon children in schools that educators see as racially identifiable. The goals long considered by educators to be necessary and valid purposes of public education cannot be achieved in them. The legal presumption follows close upon these discernible facts:

No

per se

rule can adequately embrace all the difficulties of reconciling the competing interests involved; but in a system with a history of segregation the need for remedial criteria of sufficient specificity to assure a school authority’s compliance with its constitutional duty warrants a presumption against schools that are substantially disproportionate in their racial composition. Swann v. Charlotte-Mecklenburg Board of Education,

supra,

at 26, 91 S.Ct., at 1281.

Of great relevance to educators in evaluating and determining the identifiability — a perception of students, faculty and community perception — is the historical context within which a school of disproportionate composition exists. Where, as in each of the three political subdivisions here under discussion, authorities have maintained segregated systems, it is of little significance that a given facility may have changed from a school attended by whites to one attended by blacks, or may be in transition. In the context of a continuing dual system, such schools do not lose racial identifiability but are perceived by whites and blacks as ones which are “going black” or “black.” To say that such schools are “resegregated” implies not unfairly the continued official involvement in the creation and maintenance of schools identified as intended for one race. The process in the past has taken place by wholesale official reassignment of student bodies and faculties. More recently, under free choice and similar token approaches to desegregation, whereby most schools remain either all black or all white, the changes in school populations have been almost as rapid. Courts recognize that rapid changeovers of this sort also occur in systems under zone assignment plans which preserve the existing patterns to any significant extent. The law therefore dictates that school systems are not effectively desegregated either by piecemeal approaches or compartmentalization, or by separate consideration of par

*81

ticular geographic areas. See, e. g., Davis v. Board of School Commissioners of Mobile, 402 U.S. 33 , 91 S.Ct. 1289 , 28 L.Ed.2d 577 (1971); U. S. v. Board of School Commissioners of Indianapolis (S.D.Ind., Aug. 1971)

4

; Haney v. County Bd. of Ed. of Sevier County, 410 F.2d 920 ; Swann & Charlotte-Mecklenberg Bd. of Ed., 431 F.2d 138 (4th Cir. 1970), rev’d. in part 402 U.S. 1 , 91 S.Ct. 1267 , 28 L.Ed.2d 554 (1971); Yarbrough v. Hulbert-West Memphis School District No. 4, 329 F.Supp. 1059, 1065 (E.D.Ark. 1971). The weakness of such an approach, noted by courts, is that it preserves the racial identifiability of individual facilities. Racial identifiability, therefore, is a function of the composition of the school community and the pupil assignment scheme for the individual schools.

Community Perceptions

Schools the racial composition of which departs significantly from the community parity, educators agree, are perceived by parents, teachers, administrators, public officials, pupils, and the community at large as facilities designed and operated for one race or the other. Generally schools attended under these circumstances by disproportionate numbers of black students are perceived as inferior. Experts generally concur that this has adverse effects not only on black pupils and teachers, but the entire community. This impact affects both the cognitive and affective development of the pupils. Analogous effects impede the development of white students in disproportionately white schools. In the case of the black student, impairment in the affective domain, that of perception of one’s own ability to learn, to function in society, and to control one’s destiny, is coupled with failure to advance m the cognitive sphere. Experts agree that this adverse impact cumulates in effect and is most telling in the earliest years.

The damaging stigma of inferiority carried by the identifiably black school is augmented by the community’s understanding of the official attitude toward the situation. In Virginia the state’s traditional policy of racial separation in all phases of public and private life, the historical policy of educational disparities, beginning with the refusal to afford any education to blacks, proceeding through limited, segregated education (see,

e. g.,

Corbin v. County School Board of Pulaski County, 177 F.2d 924 (4th Cir. 1949)), the systematic obstruction of the rights enunciated in

Brown,

5

and the deliberate policy to perpetuate segregation through numerous techniques of circumvention,

6

has in combination made clear to white and black members of the community the favor and satisfaction with which the state power views the continued segregation of the schools. Attitudes held throughout the citizenry affect the children in school. They are passed on by black parents, themselves most likely victims of discrimination, and by teachers, who are unlikely to associate the endorsement of containment with great academic expectations. These ideas are adopted by pupils, and the more so when they see them put into current effect in such instances as discriminatory treatment of black faculty members. The element of legal compulsion which lies behind state-mandated segregation strongly augments in fact the damage which ensues from racial isolation.

Duty of Court

Upon a finding of a Fourteenth Amendment violation it is the duty of a

*82

district court to intervene to “eliminate from the public schools all vestiges of state-imposed segregation.” Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15 , 91 S.Ct. 1267, 1275 (1971). “The district judge or school authorities should make every effort to achieve the greatest possible degree of actual desegregation and will thus necessarily be concerned with the elimination of one-race schools.”

Id.,

26 , 91 S. Ct. 1281 . In its task the Court’s goal must be dismantling of the dual system and the operation of facilities identifiable not as black schools or white schools but “just schools.” Green v. County School Board of New Kent County,

supra.

Duty of Officials

It is in 1971 accepted law that a school system formerly operated on a basis of compulsory racial segregation will not in every case be found in compliance with the Constitution if an assignment system, perhaps nondiscriminatory when viewed alone or in some other context, is put into use within its jurisdiction. Freedom of choice or residential zone plans will not in every case prove legally acceptable, and in fact they must be abandoned if in practice they fail to dismantle the dual system. Green v. County School Board of New Kent County, 391 U.S. 430 , 88 S.Ct. 1689 , 20 L.Ed. 2d 716 (1968).

The courts have not always so emphatically spelled out the extent of school authorities’ affirmative duty. Only a few years ago purportedly neutrally drawn zone lines or neutrally administered freedom of choice plans were accepted in fulfillment of the duty to desegregate. Gilliam v. School Board of City of Hopewell, 345 F.2d 325 (4th Cir. 1965); Bradley v. School Board of City of Richmond, 345 F.2d 310 (4th Cir.), rev’d. on other grounds, 382 U.S. 103 , 86 S.Ct. 224 , 15 L.Ed.2d 187 (1965). In the light of intervening Supreme Court rulings, such standards no longer apply where the racial identifiability of schools remains intact.

Division Lines

Attendance zone lines formulated by adhering to the most natural bounds of neighborhoods or according to strict proximity of pupils to facilities will not pass muster if the effect is to prolong the existence of a dual system of racially identifiable schools. This is so even though the application of such attendance plans might be more economical in time and transportation cost, might facilitate the operation of more extra-curricular school activities, and might make possible the rather uncertain benefits which some educators attach to the walk-in school. It is not that these may not be valid and rational educational goals; the point is that the end of desegregation may not be subordinated to them.

Henry v. Clarksdale Municipal Separate School District, 409 F.2d 682 (5th Cir. 1969), rejected a zoning plan which, though formulated in good faith, did not work to desegregate the system. Motive was held irrelevant:

It is irrelevant because the ultimate inquiry is not whether the school board has found some rational basis for its action, but whether the board is fulfilling its duty to take

affirmative

steps, spelled out in

Jefferson

and fortified by

Green ,

to find realistic measures that will transform its formerly de jure dual segregated school system into a “unitary, nonracial system of public education.”

Id.,

687.

Clarksdale

is a peculiarly strong case because the “natural” obstacle of a railroad track was deemed insufficient to justify a zone line running along it. The line also coincided with the division between custom-segregated neighborhoods, thus carrying into schools the results of housing segregation. Rationality alone of the zone plan failed to justify this outcome. See also, Board of Public Instruction of Duval County v. Braxton, 402 F. 2d 900 (5th Cir. 1968), where zone lines following the historical bounds of segregated neighborhoods were found invalid.

*83

If further proof were necessary that even physical obstacles of the most natural sort will not be acceptable as zone boundaries when they produce racially identifiable schools, there is United States v. Greenwood Municipal Separate School District, 406 F.2d 1086 (5th Cir. 1969), which held insufficient a white school zone “bounded on the north by the Tallahatchee River and on the south by the Yazoo River,”

Id.,

1092 .

Safety considerations are entitled to weight in the formulation of zone lines, but where the same obstacles which are proffered as assignment barriers for children in a purportedly unitary system which were crossed with regularity under the dual system, the argument will fail. Officials can hardly assert the compelling nature of obstacles which they overcame earlier in order to perpetuate segregation:

The Board’s concern for the safety of children who would have to cross railroad tracks or a bayou in order to attend school is entitled to weight, but we find it unconvincing in the context of developing a desegregation plan appropriate for Indianola. Until 1965, when the school board took its first action to comply with the

Brown

decision of eleven years earlier, students of both races freely crossed these hazards in order to maintain the racial purity of Indianola’s schools. United States v. Indianola Municipal Separate School District, 410 F.2d 626 (5th Cir. 1969).

Davis v. Board of School Commissioners of Mobile County, supra, establishes definitively that existing physical features — there an interstate highway— should not impede efforts “to achieve the greatest possible degree of actual desegregation, taking into account the practicalities of the situation.”

Id.,

402 U.S. 37 , 91 S.Ct. 1292 . If physical demarcations do not limit the duty of the court to use “all available techniques,”

Id.,

37, 91 S.Ct. 1292 , so much the less should political boundaries, when they coincide with no tangible obstacles and are unrelated to any administrative or educational needs.

Prior Practice

The implications of this doctrine for the Richmond metropolitan area are obvious. The school division lines here, and in other parts of the state where similar separate political entities exist, have never been obstacles for the travel of pupils under various schemes, some of them centrally administered, some of them overtly intended to promote the dual system. The Court does not hesitate to advert to the crossing of school division lines in instances outside the Richmond metropolitan area, because the barriers here in existence do not coincide with substantial physical obstacles. They are political demarcations only.

The State Board has never forbidden by regulation the exchange of pupils across political subdivision lines. It has promoted the crossing of lines for purposes of operating regional segregated schools. It has approved the merger of two political subdivisions into a single school division, for the purposes of facilitating the adoption of schemes of joint schools and the provision of education by contract for residents of one political subdivision by the officials of another. It has regulated in detail the operation of joint schools, approved the initiation of joint school operations, and approved contract systems within and between school, divisions. It has disbursed funds for transportation required under such systems and even paid for the shipment of pupils to other states in segregated groups.

Earlier judicial opinions bear witness to Virginia’s policy permitting the transportation of pupils across political subdivision lines for the purposes of maintaining segregation. Buckner v. County School Board of Greene County, 332 F.2d 452 (4th Cir. 1964); School Board of Warren County v. Kilby, 259 F.2d 497 (4th Cir. 1958); Goins v. County School Board of Grayson County, 186 F.Supp. 753 (W.D.Va.1960); Corbin v. County School Board of Pulaski County,

supra.

*84

The State Board has been deeply implicated in the administration of the tuition grant and pupil scholarship programs, which were operated completely independently of the wishes of local school officials and resulted in mass movement of pupils across political boundaries in the Richmond area and throughout the state as well, to the extent that it was necessary to appeal to local school boards to confer in order to coordinate the exchange of pupils. In the Richmond area, notably, when the scholarship program was at its height, support for local school expenditures in the counties was high as well.

7

These instances — and there are others —of the education of pupils of one political subdivision in schools run in whole or in part by officials of another demonstrate as a matter of historical fact the insubstantiality of any argument that strong state concerns support their maintenance as barriers to the achievement of integration. For the State has countenanced much more than the plaintiffs seek here. Standard practice has encompassed schemes under which students are educated in systems financed and operated by local officials wholly irresponsible, in the political sense, to residents of the students’ home area-. Centrally-enforced uniformity in certain educational practices has no doubt helped to make this acceptable. But here the plaintiffs do not demand that desegregation take place by means that render school authorities politically irresponsible to the parents of the children they teach. Means are available, such as the consolidation form presented in Virginia law, by which representatives of each political subdivision will have a role in management of a combined school system. Flexible state law provisions for financing exist as well. The State cannot insist that compliance with its own statutory policy violates some substantial interest. This is so especially in the light of the recurrent successful use of the joint system of school management, which entails the operation of facilities by a committee of control, having representatives from participating school divisions, with financing provided by the political bodies of each.

Segregation Patterns

Not only do the existing barriers have no relation to natural obstacles or substantial governmental interests, but they are related to strict housing segregation patterns, maintained by public and private enforcement and owing their genesis in substantial part to the manner in which the three school divisions have been operated and expanded. Thus by the maintenance of existing school division lines the State advantages itself of private enforcement of discrimination and prolongs the effects of discriminatory acts of its own agents. Brewer v. School Board of City of Norfolk, 397 F. 2d 37 (4th Cir. 1968), holds that zone lines unjustified by the existence of natural impediments to movement across them are usually unacceptable where they result in segregation. Moreover, the Court said in

Brewer ,

they are unacceptable on another ground when they work to assign pupils according to their residence in neighborhoods which are homogeneous by reason of privately enforced housing segregation. The proof here overwhelmingly establishes that the school division lines between Richmond and the counties here coincide with no natural obstacles to speak of and do in fact work to confine blacks on a consistent, wholesale basis within the city, where they reside in segregated neighborhoods.

School authorities may not constitutionally arrange an attendance zone system which serves only to reproduce in school facilities the prevalent pattern of housing segregation, be it publicly or privately enforced. To do so is only to endorse with official approval the product of private racism. It is

*85

tantamount to the reestablishment of the dual system under a new regime and falls well below the affirmative action necessary and required to desegregate a biracial system.

For a School Board to acquiesce in a housing development pattern and then to disclaim liability for the eventual segregated characteristic that such pattern creates in the schools is for the Board to abrogate and ignore all power, control and responsibility. A Board of Education simply cannot permit a segregated situation to come about and then blithely announce that for a Negro student to gain attendance at a given school all he must do is live within the school’s attendance area. To rationalize thusly is to be blinded to the realities of adult life with its prejudices and opposition to integrated housing. Davis v. School District of City of Pontiac, 309 F.Supp. 734, 742 (E.D.Mich.1970), aff’d. 443 F.2d 573 , cert. denied, 404 U.S. 913 , 92 S.Ct. 233 , 30 L.Ed.2d 186 (1971). See also, United States v. Board of Education, Independent School District No. 1, Tulsa County, 429 F.2d 1253, 1256 (10th Cir. 1970); United States v. School District 151 of Cook County, 404 F.2d 1125, 1131 (7th Cir. 1968); Board of Education of Oklahoma City Public Schools v. Dowell, 375 F.2d 158, 165 (10th Cir. 1967); Taylor v. Board of Education of City School District of City of New Rochelle, 294 F.2d 36 (2d Cir. 1961); Bradley v. Milliken, 338 F.Supp. 582 (E.D.Mich., 1971), slip opinion at 10, 12; Johnson v. San Francisco Unified School District, 339 F.Supp. 1315, 1318 (N.D.Cal., 1971).

When school authorities, with knowledge that other available opportunities for pupil assignment will produce less segregation, deliberately select one employing zones drawn in coincidence with housing segregation, their action by inference is discriminatory, and evidence to rebut such a finding must be “clear and convincing,” Brewer v. School Board of City of Norfolk,

supra,

397 F.2d 41 . No such showing has been made in this case, and the conclusion of segregatory intention from this, as well as other evidence, is unavoidable. For the power to temper the marked racial identifiability of the three school systems exists, and it has gone unused.

Educational Deprivations

Housing segregation and resultant educational deprivations are in another sense traceable to discrimination by school authorities. Where, as here, there has been an historical practice of making available to blacks an inferior public education in terms of conventional, tangible measures and also in terms of the intangible benefits resulting from an integrated education, effects of these educational policies remain observable today and have a discernible impact upon the extent of housing employment, and school segregation. To appreciate fully the impact of segregation on the effective and academic sides of an individual, as several educational experts said, it is necessary to study the course of his entire life. Inferior education limits achievement. Employment discrimination aside, it depresses earning power and restricts the choice of employment. This in turn narrows the range of housing options, confining its victims to low-cost central city sites located near public transportation and low-skilled jobs. When the parents’ housing is so fixed, so is the child’s. Inferior education also confers on the parent and the child the burden of low socio-economic status, with consequent demonstrated adverse effects on achievement in school. These are the products of past wrongs by educational authorities of the State.

The duties of current educators are affected by such violations of the Constitution. In Gaston County v. United States, 395 U.S. 285 , 89 S.Ct. 1720 , 23 L.Ed.2d 309 (1969), the Supreme Court affirmed a ruling that an “impartial” literacy test could not be applied as a qualification for voting without the “purpose or . . . effect of denying or abridging the right to vote on account

*86

of race or color,” 42 U.S.C. § 1973 (b), in a county where blacks historically had been provided with a segregated and inferior education. The same “readily inferable” impact on literacy attainment for voting purposes is here shown to affect achievement generally, insofar as it determines job opportunities and social status. When, likewise, the State’s educators impose “impartial” methods of school division organization on the black children of families, heads of which were deprived, as they well knew, by themselves or their official predecessors of an equivalent education to that given whites, they continue knowingly a system which prolongs its own discriminatory and segregatory policies.

In other contexts courts have likewise recognized the enduring effects of educational deprivation upon specific opportunities. In Griggs v. Duke Power Co., 401 U.S. 424 , 91 S.Ct. 849 , 28 L.Ed. 2d 158 (1971), the Supreme Court rejected under the 1964 Civil Rights Act educational attainment and aptitude test qualifications for employment which effectively eliminated from consideration far more blacks than whites and had no relation to job performance. Blacks’ relative difficulty in surmounting the obstacles appeared, the Court said, to be “directly traceable to race. Basic intelligence must have the means of articulation to manifest itself fairly in a testing process. Because they are Negroes, petitioners have long received inferior education in segregated schools and this Court expressly recognized these differences in Gaston County v. United States, supra. [ 395 U.S. 285 , 89 S.Ct. 1720 , 23 L.Ed.2d 309 (1969)] .... The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation [G]ood intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as ‘build-in headwinds’ for minority groups and are unrelated to measuring job capability.”

Id.,

430-432, 91 S.Ct. 853 .

Testing procedures in the school desegregation context have as well been disapproved as components of desegregation plans. See,

e. g.,

United States v. Sunflower County School District, 430 F.2d 839 (5th Cir. 1970); Singleton v. Jackson Municipal Separate School District, 419 F.2d 1211 (5th Cir. 1970), rev’d. in part sub nom. Carter v. West Feliciana Parish School Board, 396 U.S. 290 , 90 S.Ct. 608 , 24 L.Ed.2d 477 (1970).

In the Richmond metropolitan area, assignment under the current school division arrangement creates a “built-in headwind” for the black child seeking a desegregated education. For with his school assignment determined by his residence and with his residence strongly influenced by his parents’ economic attainments (putting aside the question of housing discrimination), deficiencies in the public education given blacks make it highly likely that his home will be in the city, where housing and transportation are relatively inexpensive.

School Construction

School construction policy has contributed substantially to the current segregated conditions. Schools have been built and attendance policies maintained so that, even within existing school divisions and by comparison with the racial ratios prevailing therein, new or expanded facilities were racially identifiable. The evidence shows that this was purposeful, its immediate and intended result was the prolongation and attempted perpetuation of segregation within school divisions.

The longer term impact of the same policy has been the exaggeration of the racial disproportion between the city and the two neighboring counties. This has come about by virtue of the maintenance of school division lines as obstacles to pupil assignment for purposes of desegregation while the area’s housing patterns, when its population grew, became increasingly segregated. The continued operation of the schools of each subdivision as racially identifiable facilities

*87

moreover necessarily caused each new school and old ones as well to take on the label of a black or white school. In consequence of prevailing housing segregation, which by its nature prepetuates itself and expands, increasingly as the population of the area grew larger the facilities, old and new, located within the lines describing the City of Richmond became identifiable as black schools, and those in the two counties were nearly all perceived as white schools. The racial identifiability of the entire systems in issue — those of the three school divisions ■ — became manifest when, very recently, attempts were made to desegregate the schools of each division within its own borders. Currently the Richmond system is identifiable as black, and that of each county is perceivably a white system.

Furthermore, not only has the manner of expansion of the community’s school plant been such as to partake of the discrimination inherent in its housing patterns, but also it has played a substantial part in the development of those patterns. In addition, school officials have been abetted in the perpetuation of housing discrimination by other governmental agencies.

The outcome of these practices — racial identifiability of systems and of individual facilities within each — cannot now be reversed without the implementation of pupil assignment policies which entail the crossing of school division boundaries. This applies both to newly constructed schools and those which long ago served as components of the officially compelled dual system.

In the light of all the evidence the insistence now by school authorities upon a system of separate attendance districts within the enlarged community reflects the desires of the State’s central and local officials, based at least in part on their perceptions of their constituents’ wishes, to maintain as great a degree of segregation as possible.

The Fourth Circuit has recognized the potential that school construction and expansion programs have, coupled with assignment plans geared to residential location in some respect, to create or perpetuate denials of equal educational opportunity in building upon and incorporating into the school system existing housing segregation. Brewer v. School Board of City of Norfolk,

swpra,.

Other circuits have held as well that this is a violation of the Fourteenth Amendment.

8

In Davis v. School District of City of Pontiac, 309 F.Supp. 734 (E.D. Mich., 1970), aff’d. 443 F.2d 573 , cert. denied 404 U.S. 913 , 92 S.Ct. 233 , 30 L. Ed.2d 186 (1971), legal liability for existing segregation was established in part on the ground that the school board had repeatedly advised the- community over a twenty year period that it recognized the adverse effects of school segregation and intended to deal affirmatively with them, but had nonetheless taken no such action. Instead since 1954 it had built ten new elementary schools and altered zone lines twelve times, each time without consideration of the effect of the moves on racial integration. These changes, by a continuing pattern over the years, exaggerated racial imbalance in the system.

When the power to act is available, failure to take the necessary steps so as to negate or alleviate a situation which is harmful is as wrong as is the taking of affirmative steps to advance the situation. Sins of omission can be

*88

as serious as sins of commission. Where a Board of Education has contributed and played a major role in the development and growth of a segregated situation, the Board is guilty of

de jure

segregation .... It would be feigned modesty on the part of any Board of Education to suggest that it is controlled by a situation rather than that it can control.

Id.,

741-742 .

When a school board, having demonstrated concern for problems of segregation, and operating in an area where segregated housing patterns prevail and are continuing, builds its facilities and arranges zones so that school attendance is governed by housing segregation, it is operating in violation of the constitution.

Id.,

742 .

Once it has been demonstrated as it has in this case that attendance lines were consistently drawn in such a fashion so as to discourage achievement of integration when such need not have occurred, the presumption can be made that the results reached were intended.

Id.,

744 .

Intention to Perpetuate

These conclusions apply in a case where no history of other past intentional segregation was relied on in order to establish an affirmative duty to desegregate. In a situation such as the instant one, when officially mandated segregation was enforced by numerous other means, the legal principles are all the more demanding, and the factual inference of intention to perpetuate segregation is the more compelling.

In

Swann

the Supreme Court recognized the effect that such site and capacity selections may have; that of “creating or maintaining a state-segregated school system.” Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1, 21 , 91 S.Ct. 1267, 1278 , 28 L.Ed.2d 554 (1971). The Supreme Court expressly recognized that school segregation owing its origin to discriminatory site and capacity decisions is a cognizable wrong not remedied by the adoption of a nonracial assignment plan:

“Racially neutral” assignment plans may be inadequate; such plans may fail to counteract the continuing effects of past school segregation resulting from discriminatory location of school sites or the distortion of school size in order to achieve or maintain artificial racial separation. When school authorities present a district court with a “loaded game board,” affirmative action in the form of remedial altering of attendance zones is proper to achieve truly nondiscriminatory assignments. Swann v. Charlotte-Mecklenburg Board of Education,

supra,

28, 91 S.Ct. 1282 .

Construction in both counties has tended to correspond with the development of white and black residential areas, and in fact was so intended. Coupled with the hard and fast policy of not transporting pupils across school division lines to promote desegregation and also drawing attendance zones within divisions on a rough proximity basis, county construction policy has given rise to a number of identifiably white schools. Black facilities near the periphery of Richmond —the prime example is Kennedy High School, physically located in Henrico — in the meantime have been built and opened on a segregated basis because Richmond could or would not exchange pupils with the counties in order to desegregate. The counties’ policies of drawing attendance zones roughly on a basis of proximity has been departed from on occasion, but so far as this record shows not in an effort to desegregate. Rather new construction was planned for black schools without regard to the possibility of accommodating an expanding black pupil population in white schools. Passing consideration of the role of any governmental agencies in the creation of segregated housing patterns by other means, the construction policies of the school administrators, in which, of course, the State Board played a very substantial role, both perpetuated and manufactured

*89

anew the constitutional wrong of school segregation.

The construction of new schools and the closing of old ones is one of the most important functions of local school authorities and also one of the most complex. They must decide questions of location and capacity in light of population growth, finances, land values, site availability, through an almost endless list of factors to be considered. The result of this will be a decision which, when combined with one technique or another of student assignment, will determine the racial composition of the student body in each school in the system. Over the long run, the consequences of the choices will be far reaching. People gravitate toward school facilities, just as schools are located in response to the needs of people. The location of schools may thus influence the patterns of residential development of a metropolitan area and have important impact on composition of inner city neighborhoods. Swann v. CharlotteMecklenburg Board of Education,

supra,

20-21, 91 S.Ct. 1278 .

The latter portion of the foregoing quotation from

Swarm

points up another manner in which school construction may and indeed in our instant case has contributed to school segregation. A school facility’s location and its racial composition will affect the desirability of the neighborhood served by it to prospective residents. As the F.H.A. manuals indicate, this sort of desirability is a value which real estate traders will seek to preserve as well. The racial composition of the school serving an area is a significant element in the combination of established factors which govern choice of housing sites for new residents of either race.

The interdependency of housing and school segregation is fully established by the record. Schools were planned with an eye to separate racial occupancy and opened as such, with zone and division lines imposed upon segregated housing patterns. The accommodation of expanding pupil population in new schools paved the way for new urban growth. New residents in turn were governed in their choice of housing by established patterns of residential segregation. They also were attracted to one or another zone by the opportunity to avoid school desegregation. Blacks new to the area and young black adults native to Richmond in the meanwhile were more restricted in choice of housing sites. Overall, the area’s population expanded, and over time black residents, with fewer options so far as housing was concerned, comprised a greater and greater proportion of the city’s residents, while the area’s whites occupied the suburban counties.

This was not beyond the power of school authorities in each of the areas and in the State’s central offices to influence. By maintaining black schools and white schools, perceived as such, to serve particular areas, they turned such force as might have been exerted by school policies to assist in eliminating housing segregation in the opposite direction. Because the area’s overall population was expanding, the consequences of the maintenance of segregated school systems were extreme.

In creating new segregated facilities to accommodate the area’s expanding population, school officials not only built upon the pattern of housing segregation extant in the city and counties, but also encouraged and fostered its extension in a substantial manner. The existence of a number of nearly all white schools, together with a firm policy of refusing to relieve segregation by crossing school division lines, constituted an invitation to white persons seeking new residences in the area to discriminate in their selection according to the racial composition of the school their children would attend. Cf. Reitman v. Mulkey, 387 U.S. 369 , 87 S.Ct. 1627 , 18 L.Ed.2d 830 (1967). As a result the intensity and magnitude of racial separation increased.

*90

Metropolitan Schools

The marked racial disproportion between the city and each of the county systems has progressed rapidly in recent years. In substantial part by reason of the appropriate authorities having deliberately deferred so long, and still so doing, according the plaintiff class their constitutional rights, desegregation of the schools of the city and the counties as well cannot now be achieved within the current school division bounds. Perpetuation of the racial identifiability of particular facilities while each school system expanded, by means of the creation of new schools planned for one race or the other, has greatly assisted in the creation of prevailing housing segregation and thereby entrenched school segregation.

Ever since

Brown I,

population growth in the metropolitan area has consisted mainly of the addition of whites to the neighboring counties and blacks to the city. Many of the whites in particular were new in-migrants from outside the area. In 1955 the city schools were 43.4% black overall; Chesterfield’s were 20.4% black and Henrico’s 10.4% black. Now, in 1972, Richmond schools are about 70% black, and the population of each county system hovers around eight to ten percent black. [The total school population of the three jurisdiction area has expanded from 61,672 to 106,521.]

A school system is rightly termed

de jure

segregated even in those instances when facilities formerly all white under the dual system have become all black and when new racially identifiable schools with “neighborhood” or “free choice” assignment plans have been built and opened. For when individual schools are components in a segregated system, the thrust of the segregatory policy, officially instituted, affects them and the manner in which the community perceives them. It is anticipated that they will be “white schools” or “black schools.” A white school, the student body of which gains a certain proportion of blacks, will be reclassified in the eyes of the community (often with the help of administrators who assigned to it more black faculty members) as black, whites will withdraw in large part, and an instance of resegregation will have occurred. This cannot but occur when systems are maintained on a segregated basis and the total population expands. Instances of transition of this sort are not rare in an expanding segregated school community. In the Richmond metropolitan area the outcome has been that the city’s entire school system is at present identifiably black. This was not always the case, and it is so at present in substantial part because the policy of school segregation, continued to the present, contributed to pervasive housing segregation.

For white resistance to desegregation is undeniable. The State itself has argued in other eases that white opposition will make desegregation substantially more difficult to accomplish when the blacks constitute a large proportion of the school population:

Without community acceptance, public education as we know it now will not survive in those localities.

This brings us to the second major problem in Virginia as a whole. Ratio of population is of great significance in the solution to segregation. The study quoted above is emphatic on this point:

“The ratio of Negro to white population is not a final determinant of racial attitudes, but it is perhaps the most powerful single influence, for the practical results of desegregation depend heavily upon it. This, more than anything else, seems to account for the great variation in the degree of expressed concern in the South over the steadily rising status of the Negro in the last generatiom — which has led finally to the demand for admission to the white schools. The Upland South, for example, found little to alarm it in the Negro’s successful legal battle for the ballot, for there his numbers are not sufficient to give him con

*91

trol of local politics. The whites in the Black Belt, however, have had to face the prospect of becoming members of a political minority and many of them are still resisting, although the only means left to them are extra-legal.”

The question of ratio of population has particular significance in Virginia. The percentage of Negro school children ranges from zero in Buchanan, Craig and Highland Counties to 77.3% in Charles City County. Brief for appellees on further re-argument in Davis v. County School Board of Prince Edward County, November 15, 1954, in the United States Supreme Court, at 14-15.

Demographic Patterns

The departure of whites, as has occurred in the City, in the face of an increasing black component was predictable, but it was only possible — and only had reason to occur — when other facilities, not identifiable as black, existed within what was in practical terms, for the family seeking a new residence, the same community. School authorities cannot but have been aware from their experience of the tendency of individual facilities within each segregated system to take on a label of racial identifiability. Given the shifting demographic patterns, it was fully foreseeable, and was foreseen, that more and more schools in the city, new and old, would become black and in the counties most facilities, including new ones, would be obviously white.

The decisions on school locations in the three metropolitan systems were matters for central as well as local control. Each new facility or addition was approved by the State Superintendent, and each played a role in molding the development of housing patterns in the metropolitan area. The expansion of the school plant, like the development of other public facilities, governs the rate of community development.

9

When they build upon and assist in the spread of segregated housing patterns, as has happened here, the school authorities create new state-enforced school segregation.

The maintenance of segregation in an expanding community therefore creates problems, when a remedy must eventually be found, of a greater magnitude in the present than existed at an earlier date:

The failure of local authorities to meet their constitutional obligations aggravated the massive problem of converting from the state-enforced discrimination of racially separate school systems. This process has been rendered more difficult by changes since 1954 in the structure and patterns of communities, the growth of student population, movement of families, and other changes, some of which had marked impact on school planning, sometimes neutralizing or negating remedial action before it was fully implemented. Swann v. Charlotte-Mecklenburg Board of Education,

supra,

14, 91 S.Ct. 1275 .

Governmental Agencies

In league with the defendant school administrators in perpetuating the dual school system to the extent that entire city and county school divisions have acquired the label of racial identifiability have been governmental agencies controlling the evolution of housing patterns in the area. Segregation in housing patters, once established, perpetuates itself and expands. New residents adhere to established patterns; private realtors adhere to governmentally enforced practices ; and the pattern, once set, acquires an impetus of its own. The public housing policy in the area has, by action and inaction of the governmental bodies involved, contributed to school segregation. County policy has excluded low income

*92

housing entirely; in the city itself such housing has been barred when it might contribute to housing desegregation, and efforts to place it in mainly white areas in the city or the counties have been abandoned.

Federal policy to perpetuate segregated residential development and the use of racially restrictive covenants have also forced the area’s housing into racially defined patterns. It is not decisive that the sources of these forces now no longer promote them; the momentum of discrimination continues.

Resistance to Desegregation

A firm policy of resistance at the state and local levels to consolidation or other methods of cooperative pupil assignment on any significant scale so as to bring about desegregation has been related at each level to racial motives. Witness, for example, the enthusiasm with which the State Department of Education explored consolidation techniques for all educational purposes save that of desegregation, and the alacrity with which the Chesterfield Superintendent invited county residents to return to county schools in the fall of 1970. At each level and in each sphere of school operation the question of desegregation has had a special status apart from other considerations of educational policy. There has been a discernible policy of refraining from taking such steps as would promote desegregation, thereby burdening the plaintiff class in attainment of their rights. Not only has this policy had a substantial impact on school segregation, but on the degree of housing segregation in the area as well. Under Hunter v. Erickson, 393 U.S. 385 , 89 S.Ct. 557 , 21 L.Ed.2d 616 (1969) such a deliberate classification, purposefully disadvantaging blacks, violates the Fourteenth Amendment. See Ely, Legislative and Administrative Motivation in Constitutional Law, Yale Law Journal, 1205, 1299-1302 (1970).

State Central Actions

The educational system of the State of Virginia, like those of most other states, is operated both by officials of the State’s central government, located in Richmond, and by local officials with geographically narrower authority. In numerous respects through the years the central administrators and policymakers have issued recommendations or regulations concerning both major and minor aspects of school operation. In the management of the State system the concept of local autonomy has several times received short shrift, especially in the matter of racial policy.

Earlier cases in this jurisdiction have established the deep involvement of Virginia’s statewide officials in the administration of the State’s public schools. This Court held in Allen v. County School Board of Prince Edward County, 207 F.Supp. 349 (E.D.Va.1962), that the operation of schools was a cooperative venture by local and central officials exercising powers of State law:

[T]he Constitution of Virginia imposes a mandatory duty to establish and maintain an efficient system of public schools throughout the state ....

The Court finds, and so holds, that the public schools of Virginia were established, and are being maintained, supported and administered in accordance with state law. These public schools are primarily administered on a statewide basis. A large percentage of the school operating funds is received from the state. The curriculums, school text books, minimum teachers’ salaries, and many other school procedures are governed by state law ....

Id.,

at 352-354 .

In any event, no amount of delegation of authority pursuant to state law would deprive the system of the character, in the contemplation of courts enforcing the Fourteenth Amendment, of a structure formed, supported, administered, divided, and operated according to policies established and implemented by officials whose source of authority is state law.

*93

The contention that the action and inaction of the foregoing state and county officials resulting in the closing of the Prince Edward County Schools was a local action, beyond the purview of the Fourteenth Amendment, is not well taken. County has been defined “as a body politic, or political subdivision of the state, created by the legislature for administrative and other public purposes.” It is generally regarded as merely an agency or arm of the state government.

The United States Constitution recognizes no governing units except the federal government and the States. A contrary position would allow a state to evade its constitutional responsibilities by carve-outs of small units. At least in the area of constitutional rights, specifically with respect to education, a state can no more delegate to its subdivisions the power to discriminate than it can itself directly establish inequalities.

Id.,

at 352-354 .

As this Court did in

Allen ,

it does here again conclude that the public schools of the State and of the Richmond metropolitan community are administered by the State Board and State Superintendent in conjunction with their local delegates, the division superintendents, and locally chosen school boards. Other central and local officials, furthermore, have authority over certain aspects of school administration; most obvious is the local governing bodies’ budgetary appropriation power.

Prior to the decision in Brown v. Board of Education of Topeka, 347 U.S. 483 , 74 S.Ct. 686 , 98 L.Ed. 873 (1954), the Commonwealth of Virginia maintained a thorough-going policy of segregation by race in the public schools. The doctrine was mandated by its Constitution, by statutory law, and was enforced throughout the state by policymaking authorities. Attorneys for the Virginia defendants, including the State’s Attorney General, so represented in briefs filed seventeen years ago in

Brown :

In general, education in Virginia has operated in the past pursuant to a single plan centrally controlled with regard to the segregation of the races. Brief for appellees, County School Board of Prince Edward County, et al., November 15, 1954, at 15.

In the years since, the powers of the State Board of Education and the State Superintendent of Public Instruction have varied but slightly; what changes in law have been made have principally been to expand its powers. Other State educational agencies have come into existence and disappeared in intervening years as well. For the major part of this seventeen year period the State’s primary and subordinate agencies with authority over educational matters have devoted themselves to the perpetuation of the policy of racial separation. They have been assisted in this effort by new legislation creating such programs as the tuition grant and pupil scholarship systems, the pupil placement procedures, and, by enactment passed while this case was pending, placing new limitations on the power of the State Board to modify school division boundaries. They have employed established techniques and powers as well to perpetuate segregation.

Only very tardily and under the threat of financial coercion has the State Board of Education implicated itself in any respect in the desegregation process. In so doing it has conceived of its affirmative duty very narrowly, confining its efforts to those required by its compliance agreement with the Department of Health, Education and Welfare, and on occasion not even adhering to that.

The State Board, like other state educational authorities, cannot but have been aware of the strength of the State’s policy of segregation and the manifold ways in which it was enforced at the state and local level. In recent years that central board has been kept constantly informed of the status of desegregation efforts in all school divisions. Nonetheless it has scrupulously separated its involvement in the desegregation process from its other extensive activities. It has failed to inject consideration of the contribution that it might make to the

*94

dismantling of segregation into its decision-making processes of policymaking and review. It has instead, through administrators so motivated, intentionally perpetuated segregation, as for instance in the sphere of school construction approval. With knowledge of the impact thereof, it has refrained from taking such actions as were within its power to bring about a greater degree of desegregation. During the most recent era, when the 1964 Civil Rights Act began to force a reversal of the age-old dual system, there was only one man charged with the carrying out of the State’s part of the job of desegregation, and all other functions within the State Department of Education appear to have gone on in disregard of his assignment. In striking contrast are the extensive affirmative efforts to promote segregation.

Purposeful Frustration

Powers enjoyed by the State Board and State Superintendent before and after 1954 have been exercised openly and intentionally to frustrate the desegregation of the three school divisions of the metropolitan area and others throughout the state. The known and foreseeable impact of the manner in which school construction programs were administered, including site selection, choice of school capacity, and quality of facilities, has been to perpetuate the dual system in each school division. The approval process has been buttressed in this by the powers of the purse, liberally used. The foreseen result has been the continuation of separate and racially identifiable schools, administered by members of a single race, staffed by teachers of a single race, housing pupils of a single race.

Separation in faculty was cooperatively bolstered by separate orientation programs on the local level and regular conferences on the statewide level. Black faculty members have been demoted by local administrators from positions of authority to lesser posts in connection with attempts to desegregate schools by the closing of all-black facilities in the jurisdictions here involved. The State Board, of course, was informed of these changes in position. Similar practices have been condemned:

[W]e feel that the Board’s consolidation policy may not be applied to where, as here, a school is closed as a direct consequence of an effort to rectify constitutional defects in the method by which pupils and teachers have previously been assigned, where the effect is to impose, without some concern for qualifications to teach, the heavy burden of unemployment solely upon those whose constitutional rights were violated, and where an additional result may be to impede meaningful realization of the constitutional rights of others, that is, the pupils. Smith v. Board of Education of Morrilton School District No. 32, 365 F.2d 770 , 780 (8th Cir. 1966.) See also, Stell v. Board of Education for City of Savannah, 387 F.2d 486, 497 (5th Cir. 1967); Spangler v. Pasadena City Board of Education, 311 F.Supp. 501, 516, 523 (C.D.Cal.1970).

The obvious and immediate impact, a “foreseeable consequence,”

Id.,

365 F.2d 779 , of the policy is to convert a dual system into at best one run primarily for and by whites. There is no evidence that demotions were ordered after a full review of the qualifications of possible candidates for positions in merged schools. Such a policy as the authorities adopted can only discourage the recruitment of black personnel. In fact the black faculty component in each county system is very small. The result, readily perceived by pupils, contributes to the racial identifiability, in the legal sense, of the county school systems.

The State’s central planning department for educational transportation performed surveys and formulated the most efficient means by which to maintain the white and black school systems. The pupil placement system, administered by a now defunct central state agency, with the aid and cooperation of the State Board, froze segregated attendance patterns for years. The tuition grant and later pupil scholarship programs made

*95

available to any student desiring to escape desegregation in his home school division a ready refuge in a public segregated school system or a private segregated school, and this escape route was beyond the power of the localities to bar.

Transfer patterns and optional zones have been condemned in the past when used as devices to create or maintain segregation. See United States v. Board of Education, Independent School District No. 1, Tulsa County,

supra,

429 F.2d 1260 ; United States v. School District 151 of Cook County,

supra,

404 F.2d 1125, 1131 ; Board of Education of Oklahoma City Public Schools v. Dowell, 375 F.2d 158, 163-164 (10th Cir. 1967); Spangler v. Pasadena City Board of Education,

supra,

311 F.Supp. 508 -509, 512, 520; Bradley v. Milliken,

supra

( 338 F.Supp. at 587 ); Monroe v. Board of Commissioners of the City of Jackson, Tenn., et al, 391 U.S. 450 , 88 S.Ct. 1700 , 20 L.Ed. 2d 733 .

Numerous times the State Department of Public Instruction issued written policy statements concerning the operation of joint educational programs of a general or specialized nature on a regional basis, treating the issue of school consolidation, adverting to the benefits of school division consolidation, discussing the merits of contractual school operation, and regulating the manner in which such administrative changes might be brought about. Many times the Board stated its support for one or another such move. It must not be forgotten that these publications emanated from the agency to whose regulations and directions local school divisions owed a duty of compliance. And, if locally initiated, the organizational changes were nearly all, at one point or another during transition, subject to State Board approval. Policy statements therefore had the effect of encouraging the pursuit of the aims endorsed by an office with special expertise and authority and of guaranteeing in advance its consent. At many times these statements supported the use of these techniques in order to preserve segregation. To this date the State Board has not endorsed them in order to achieve desegregation. Such reticence affirmatively gives rise to an inference of intention, for whatever reason, to preserve such amount of racial segregation as is possible and a rejection of any affirmative obligation to assume the task of desegregation.

As centrally-administered segregatory programs increased, from the days of the school closing activity which occurred in Virginia, through the pupil placement phase, and into the years of the tuition grant — pupil scholarship gambit, the State Board maintained an outstanding record of deference to local wishes to maintain racially separate schools. Central authority at once increased and lay dormant. The State Superintendent’s authority to approve new construction was somehow construed not to apply to site selection despite express regulations to the contrary, although in extreme cases criticism was offered, but never of the creation of segregated facilities. With cautious regard for local autonomy — so flouted by pupil placement and tuition grants — the State Board several times sought the consent of all affected before modifying school division lines, recognizing the effect such actions had on attendance policies. This circumspection betokens, the Court is told, lack of authority. Unquestionably authority would exist in ample measure if only the State Board would promulgate the appropriate regulations authorized by its enabling legislation. The contention of want of authority is self-serving.

The officials of the State Department of Education, the State Board, the State Superintendent, and all officials implicated in the operation of the state educational system, have a duty owed to the individual members of the plaintiff class not to discriminate on the basis of race in the operation of the State’s educational plant. This duty was made crystal clear by the Supreme Court in one of the first

*96

school desegregation matters to come before it after the

Brown

decision:

The controlling legal principles are plain. The command of the Fourteenth Amendment is that no “State” shall deny to any person within its jurisdiction the equal protection of the laws. “A state acts by its legislative, its executive, or its judicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the State, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position under a State government, . . . denies or takes away the equal protection of the laws, violates the constitutional inhibition; and as he acts in the name and for the State, and is clothed with the State’s power, his act is that of the State. This must be so, or the constitutional prohibition has no meaning.” Ex parte Virginia, 100 U.S. 339, 347 [ 25 L.Ed. 676 ]. . . . In short, the constitutional rights of children not to be discriminated against in school admission on grounds of race or color declared by this Court in the

Brown

case can neither be nullified openly and directly by state legislators or state executive or judicial officers, nor nullified indirectly by them through evasive schemes for segregation whether attempted “ingeniously or ingenuously.” Smith v. Texas, 311 U.S. 128, 132 , 61 S.Ct. 164 , 85 L.Ed. 84 ; Cooper v. Aaron, 358 U.S. 1, 16-17 , 78 S.Ct. 1401, 1409 , 3 L.Ed.2d 5 (1958). See also, United States v. Jefferson County Board of Education, 372 F.2d 836, 873 (5th Cir. 1966), aff’d on rehearing en banc, 380 F.2d 385 (5th Cir. 1967).

That duty has here been violated by the State Board’s continued involvement in the perpetuation of segregation by acts having the known or foreseeable effect of perpetuating the dual school system. These began with the announcements after the

Brown

decision that any action to implement its requirements would be postponed. They continued with the support of the school closing policies, in particular by the use of the tuition grant payment and special appropriation powers of the Board. They included the implementation of tuition grant and pupil scholarship legislation by numerous actions. Further, they encompassed the aid given the pupil placement system by promulgation of implementing regulations. They included as well, as the Court has pointed out, the approval of school construction programs deliberately and obviously planned to enlarge and entrench the dual system.

Legal Effect

The legal effect of these actions by the body charged with the duty of supervising the State’s schools, a body the directives of which would be complied with fully by local officials, was to buttress the existing dual system and prevent its dismantling.

The official position taken by the State’s central educational authority communicated to all, black and white, public officials and private individuals, the depth and tenacity of the policy of segregation. This contributed to and compounded the damage itself done by segregated public education and rendered more difficult efforts by blacks to escape segregation by means of individual initiative. See, NAACP v. Patty, D.C., 159 F.Supp. 503 (1958), reversed on other grounds sub nom., Harrison v. NAACP, 360 U.S. 167 , 79 S.Ct. 1025 , 3 L.Ed.2d 1152 (1959).

Federal courts in school desegregation matters may legitimately address their remedial orders to defendants with statewide powers over school operations in order to eliminate the existence of segregation in schools chiefly administered locally by subordinate agencies.

Franklin v. Quitman County Board of Education, 288 F.Supp. 509 (N.D.Miss. 1968) concerned a school construction program, subject to approval for partial funding by the state’s Educational

*97

Finance Commission. That body has power to determine whether a requesting locality has an adequate, efficient, and comprehensive plan for building construction. The court ruled that it had the duty to consider proposals with an eye to their contribution to the disestablishment of the dual system and to assist local boards to that end:

Viewed in any light, the Commission is extensively involved in the business of public school education and is, therefore, not in a position to adopt a “hands-off policy” as regards the disestablishment of state-imposed segregation in a public school system. The affirmative obligation to seek means of disestablishing state-imposed segregation must be shared by all agencies, or agents of the state, including Educational Finance Commission, who are charged by law with, and who exercise, official public school functions. Neutrality must be forsaken for an active, affirmative interest in carrying out constitutional commands.

Id.,

at 519 .

The State Superintendent of Public Instruction has violated this duty.

This is only one of the many respects in which the state educational authorities have abstained from taking measures to desegregate the state school system or have taken steps the obvious and inevitable effect of which was to frustrate that process.

In an analogous case, Lee v. Macon County Board of Education, 267 F.Supp. 458 (M.D.Ala.1967), aff’d. sub nom., Wallace v. United States, 389 U.S. 215 , 88 S.Ct. 415 , 19 L.Ed.2d 422 (1967), the district court was confronted with a state educational authority enjoying broad powers over educational policy, similar to those possessed by the state officials here. Historically, there as here, the state’s schools were segregated by law, and only recently had efforts begun to disestablish that pattern. In

Lee ,

as in the instant case, central state officials, some in the education field and some with general executive authority, had by their various actions prolonged school segregation. “[T]he most significant action by these defendant state officials, designed to maintain the dual public school system based upon race, is found in the day-today performance of their duties in the general supervision and operation of the system.”

Id.,

at 470 . The court reviewed the central authorities’ use of their power over school site selection and construction, their recommendations for and against school consolidation, their control over finances, their indirect influence over faculty assignment in authorizing the creation of new teacher posts in segregated schools and conducting separate statewide conferences, their creation, recommendation, approval, and financing of transportation policies designed to perpetuate uni-racial schools, maintenance of dual systems of higher education, and implementation of a tuition grant system the purpose and effect of which was to frustrate public school desegregation. The court remarked that in each of these areas there was an affirmative constitutional duty upon state officials to seek means to bring about desegregation. Indeed they had á further obligation not to conceal or belittle the duties of local school officials under their jurisdiction.

10

The state officials had violated this obligation to take positive action in each area and instead had exercised state authority to perpetuate segregation. On the basis of these violations, the district court directed the state officials to adopt a uniform statewide plan for school desegregation, applicable to each district in the state not under current court order. This remedy

*98

included provisions among others, governing the assignment of students and faculty. As means of relief from prior violations, these requirements were legally proper, despite that the state authorities may have lacked specific authorization under state law to prescribe attendance rules or assign teachers. Moreover, the defendants there in fact had the necessary power to achieve these ends:

It cannot seriously be contended that the defendants do not have the authority and control necessary to accomplish this result. Certainly the possibility of losing state funds for failure to abide by and implement the minimum constitutional requirements for school desegregation which this opinion and the accompanying decree require will, without any doubt, effect compliance.

Id., 478 .

The Fifth Circuit has recognized implicitly in another case that the central educational authority of the state may be subjected to court orders for purposes of relief, that is to aid in preparing desegregation plans in cooperation with local agencies. United States v. Texas Education Agency, 431 F.2d 1313 (5th Cir. 1970).

Our own Court of Appeals has stated that, upon a proper showing of the existence of continuing

de jure

segregation, statewide educational officials may be directed, if the remedy is deemed appropriate, to withhold state funds from segregated local systems. Smith v. North Carolina State Board of Education, 444 F.2d 6 (4th Cir., 1971). That decision vacated an order, to be sure, directed against state officials, but only in a case where the defendants were not shown to have contributed to any existing segregation nor to have the authority acting alone to remedy it, and where those allegedly responsible for the maintenance of segregation were not parties.

Godwin v. Johnston County Board of Education, 301 F.Supp. 1339 (E.D.N.C. 1969), cited with approval in

Smith,

also supports the principle of the affirmative obligation of central educational administrators to dismantle a dual school system:

These defendants urge that the Court impose a duty upon the local school board, an agency which is furthest removed from the seat of sovereignty and at the same time to insulate the State Board of Education and the State Superintendent of Public Instruction from a similar constitutional duty and obligation. Such a distinction makes no sense in logic, frustrates rather than promotes the Supreme Court’s mandate that the public schools be desegregated “now” and is without support in the law.

Id.,

1341.

The

Godwin

court relied on state statutory authority similar to that conferred by Virginia law to establish the central officials’ power to act. It also took note of a history of unconstitutional centrally administered programs in the state, including relief from compulsory school attendance, tuition grants, and school closing provisions. The court did not deem it dispositive of the central authorities' duty, however, that they might actively have pursued discriminatory policies:

Proof of these allegations, if there be any, might well be relevant as to the kind of relief to be afforded, if any be required. Whether or not the State Board of State Superintendent has actively discriminated does not affect their burden to actively seek the desegregation of the public schools in North Carolina. In this case the burden rests upon these defendants, as well as upon the local school board “to come forward with a plan that promises realistically to work, and promises realistically to work now.” Green v. School Board of New Kent County,

supra

[391 U.S.] at 439, [ 88 S.Ct. 1689 , 20 L.Ed.2d 716 ],

Id.,

1343.

School Divisions

Before determining whether the existing city-county lines now used as school attendance boundaries possess any educational or administrative virtue save that of “natural” coincidence, the Court

*99

deems it appropriate to attempt an analysis of the manner in which the State’s central educational authorities have administered Virginia’s system of school divisions. Governing bodies and school boards of existing school divisions by State law have been empowered to control to a significant extent the attendance areas within which residents of neighboring political subdivisions may be assigned.

Prior to 1971, under State law it was within the power of the school board and governing body of a city or county, along with the State Board of Education, to determine whether a consolidated school division, operating under a single school board, should be established for it and another political subdivision. Va.Code § 22-100.2 (1969 Repl. vol.). Under pri- or law the State Board could create, a combined school division comprising more than one political subdivision without any statutory requirement of local consent. As these general and the more specific findings of fact indicate, in practice single division status centrally decreed has been highly conducive to the initiation of cooperative arrangements authorized under other provisions of State law for the operation of joint schools or education by contract, under which attendance areas are expanded beyond political subdivision lines. State Board policy pronouncements no doubt strongly encouraged the adoption of such forms, but local cooperation seems to have been essential, given the limited amount of pressure that the State Board has usually applied.

Under current law the creation by the State Board of a single school division comprising more than one political subdivision automatically calls for the establishment of a consolidated administrative structure. Va.Code § 22-100.1 (1971 Cum.Supp.). Thus the State Board, empowered to divide the state into school divisions, may determine the bounds of attendance areas. What was given with one hand was taken away and more by the other, however. New Va. Code § 22-30, enacted since the joinder of state and county defendants in this case, bars the State Board of Education from creating school divisions composed of more than a single city or county without the consent of the local school boards and governing bodies.

11

No longer does the State Board possess the authority even to decree single division status for an area under the administration of two school boards. Authority to prescribe the bounds of the unit of school administration within which a child in a neighboring area may be assigned is therefore placed in part in the hands of local officials. Because courts recognize that the power to describe units of administration may well work to retard integration, its use is subject to judicial scrutiny. Wright v. Council of City of Emporia, 4 Cir., 442 F.2d 570, 572 . To the extent that the State has delegated to local officials the power to determine the bounds of administrative units within the state, those local personnel must exercise their powers consistent with the State’s constitutional obligations.

City-County Lines

If the city-county lines as attendance zone lines were drawn today by the State, it is extremely doubtful that they could withstand constitutional challenge. Cf. United States v. Board of Education, Independent School District No. 1, Tulsa County,

supra.

In view of the range of alternatives embraced by Virginia law to the organization of school attendance districts along strict political subdivision lines, in view of the past practices which show them far from inviolate, in view of the governmental acts, including those of state and local school officials, and private segregatory actions which have contained blacks on one side of the city

*100

line, and in view of the drastic effect on racial proportions of such bounds, the lines would fall as racially motivated. Furthermore, the lines in fact are newly drawn. For the State Board, pursuant to § 22-30, in 1971, declared Richmond, Henrico, and Chesterfield to be separate school divisions.

In reality, however, that action was no more than another in a series which perpetuated existing conditions; it illustrates the circumstance that under earlier self-imposed state custom, and now under state statute, relief of segregation in Richmond is dependent upon the compliance of neighboring jurisdictions as well as the State’s central office. There is, by contrast with Wright v. Emporia,

supra,,

no one instance of separation which one can examine to determine its legality. But there is no necessity that there be any one determinable moment when an act was performed which one can call illegal in order for the Court to determine that a merger of, or cooperative assignments between, school divisions is an appropriate and necessary remedy for the maintenance by State officials over generations of a dual school system in each of the areas involved. In the

Haney

and

Texas

cases,

12

similar orders were addressed to officials whose sole defaults were the maintenance of district boundaries which tended to perpetuate the dual system.

When a Board of Education has contributed and played a major role in the development and growth of a segregated situation, the Board is guilty of

de jure

segregation. The fact that such came slowly and surreptitiously rather than by legislative pronouncement makes the situation no less evil. Davis v. School District of City of Pontiac,

supra,

309 F.Supp. at 742 .

Here long years of maintenance of the dual system, many subsequent to formal legal declaration of its invalidity, massive and effective state-managed efforts to oppose desegregation under free choice assignment plans which caused more and more facilities in the area to become segregated by a process of white withdrawal and black occupation, have, together with forces heretofore discussed containing blacks in the city, produced a community school system divided into racially identifiable sectors by political boundaries. The problem has intensified with passing years, but its growth has been foreseeable, and all officials were well advised of its coming. At present the disparities are so great that the only remedy promising of immediate success — -not to speak of stable solutions —involves crossing these lines.

Racial Hostility

Rejection of such a solution by the county and state defendants is explicable principally in terms of racial hostility. Opposition to desegregation in the counties has been the historical pattern to the present date. State officials have been guilty of encouraging or condoning such sentiment. County officials have publicly disclaimed any obligation to play an effective role in the desegregation of schools in the area and declared their opposition to effective desegregation and disapproval of Supreme Court rulings setting forth the law of the land on the subject. Considering the historic flexibility of political subdivisions in the state and in this area in matters of pupil exchange across political boundaries and in the cooperative operation of other public utilities, in view of the several statutory patterns — part of the public policy of the state — under which cooperative ventures can be undertaken, and in view of the fact that school operation in the counties has always entailed transportation times and distances similar to those involved in the suggested metropolitan plan, resistance to the proposal appears clearly to be racially based.

Just as the City’s geographic borders, viewed as limits upon pupil assignment,

*101

do not correspond to any real physical obstacles, so also are they unrelated to any marked practical or administrative necessities of school operation. The boundaries of Richmond are less than eternal monuments to a city planner’s vision. They have changed several times over the years with annexations, the latest as recent as 1970. Indeed historically all of the city has been created from the two counties. These additions have not, however, encompassed sufficient territory so that the racial identifiability of school facilities in the area could be eliminated by desegregation within existing political lines. The growth of the black and white population and their relative movement have advanced far faster than the city proper has expanded. In the meantime segregation has gone unrelieved, and the number of identifiably black schools in the city has increased, as official school segregation and housing segregation fostered each other and caused the areas of black' housing to expand within the city to its borders by a process of accretion.

The Constitution is violated by segregatory acts even though they were taken by officials responding to the wishes of their constituents, as they saw them. Community resistance to change affords no legal basis for the perpetuation of racial segregation. Monroe v. Board of Commissioners, Jackson, Tenn.,

supra

(1968); United States v. School District 151 of Cook County,

supra,

1133; Northcross v. Board of Education of City of Memphis, 333 F.2d 661 (6th Cir. 1964); Bradley v. Milliken,

supra,

338 F.Supp. at 593 ; Johnson v. San Francisco Unified School District,

supra,

339 F.Supp. at 1341 . The consideration by officials of community reaction to desegregation is improper in formulating school zone lines:

Where the Board is under compulsion to desegregate the schools (1st Brown case, Brown v. Board of Education of Topeka, 347 U.S. 483 [ 74 S.Ct. 686 , 98 L.Ed. 873 ] . . .) we do not think that drawing zone lines in such a manner as to disturb the people as little as possible is a proper factor in rezoning the schools. Northcross v. Board of Education of City of Memphis,

supra.

The evidence here indicates that a primary consideration in the refusal of county officials to establish cooperative school operation with Richmond has been their own concurrence with perceived constituents’ opposition to integration efforts, which one county official termed “unamerican.” This is not a legally cognizable objection.

Such an attitude is wholly at odds with considerations of one’s affirmative obligation to exercise state-conferred powers affecting school administration so as to promote that end. The state and county officials equipped to alter the limits of attendance units unquestionably have that duty, their conduct affecting deeply the educational interests of many thousands of our youth and constitutional rights of the plaintiffs. Yet they have refused to act. Such conduct is the more iniquitous when one considers that there is under the law a positive mandate charging the State with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch. Green v. County School Bd. of New Kent County,

supra.

Pursuit of Segregatory Policies

The fostering of segregation consists not solely of an invidious intention or racial hostility, on the part of certain officials, however. It is also inferable from the knowing pursuit of policies which cannot but produce ■ racial separation. Johnson v. San Francisco Unified School District,

supra.

An official preference for a mode of school organization less effective than other choices in eliminating segregation gives rise to an inference of discriminatory intention. Brewer v. School Board of City of Norfolk,

supra.

The adherence to a zone system promoting segregation carries with it a logical presumption of the purpose to segregate. Spangler v.

*102

Pasadena City Board of Education,

supra,

311 F.Supp. 522 . A consistent course of conduct producing segregatory results supports an inference that the outcome was intended. Davis v. School District of Pontiac,

supra,

443 F.2d at 576 : School officials in Virginia cannot plead ignorance of the crucial role race plays in education. When their acts perpetuate segregation or by new devices create it anew, their legality will be gauged by their natural, probable, and foreseeable effect. Bradley v. Milliken,

supra,

338 F.Supp. 582 at 588 .

Among all those in power there has been actual knowledge of the intensifying patterns of segregation in the Richmond area, and officials have been advised by studies and expert recommendations of the need to take steps to forestall its adverse impact.

13

This Court is not alone in inferring discriminatory intention from rejection of the advice of internal and external studies. Bradley v. Milliken,

supra,

338 F.Supp. 582 at 589 ; Johnson v. San Francisco Unified School District,

supra,

339 F.Supp. at 1318 (1971); Spangler v. Pasadena City Board of Education,

supra,

311 F.Supp. 510 -511; Davis v. School District of City of Pontiac,

supra,

309 F.Supp. at 737 .

Norris v. State Council of Higher Education, 327 F.Supp. 1368 (E.D. Va. 1971), aff’d Board of Visitors of College of William and Mary v. Norris, 404 U.S. 907 , 92 S.Ct. 227 , 30 L.Ed.2d 180 (1971), squarely supports the duty of one state institution to act so as not to obstruct the efforts of another to fulfill its constitutional duty to desegregate. There this Court enjoined the enlargement of a predominantly white junior college to four-year status when, were it expanded, it would compete for white students with a nearby black institution, thereby perpetuating segregation.

The State cannot escape its constitutional obligations by relinquishing or delegating to local officials the authority to discriminate, nor can it escape such obligations by dividing such power between them and others of statewide authority. It is axiomatic that if the power to violate constitutional rights cannot be conferred on a faceless electoral majority,

14

it cannot with impunity be placed upon local elective or appointive bodies.

Nor can local option enabling statutes be used as vehicles for the infringement of constitutional rights. Griffin v. County School Board of Prince Edward County, 377 U.S. 218 , 84 S.Ct. 1226 , 12 L.Ed.2d 256 (1964); Hall v. St. Helena Parish School Board, 197 F.Supp. 649 (E.D.La.1961), aff’d 5 Cir., 287 F.2d 376 and 368 U.S. 515 , 82 S.Ct. 529 , 7 L. Ed.2d 521 .

The power conferred by state law on central and local officials to determine the shape of school attendance units cannot be employed, as it has been here, for the purpose and with the effect of sealing off white enclaves of a racial composition more appealing to the local electorate and obstructing the desegre

*103

gation of schools. The equal protection clause has required far greater inroads on local government structure than the relief sought here, which is attainable without deviating from state statutory forms. Compare Reynolds v. Sims, 377 U.S. 533 , 84 S.Ct. 1362 , 12 L.Ed.2d 506 (1964); Gomillion v. Lightfoot, 364 U.S. 339 , 81 S.Ct. 125 , 5 L.Ed.2d 110 (1960); Serrano v. Priest, 96 Cal.Rptr. 601 , 487 P.2d 1241 (1971).

In any case, if political boundaries amount to insuperable obstacles to desegregation because of structural reasons, such obstacles are self-imposed. Political subdivision lines are creations of the state itself, after all.

[T]hey have been traditionally regarded as subordinate governmental instrumentalities created by the State to assist in the carrying out of state governmental functions. As stated by the Court in Hunter v. City of Pittsburgh, 207 U.S. 161, 178 [ 28 S. Ct. 40 , 52 L.Ed. 151 ], these governmental units are “created as convenient agencies for exercising such of the governmental powers of the state as may be entrusted to them,” and the “number, nature, and duration of the powers conferred upon [them] . and the territory over which they shall be exercised rests in the absolute discretion of the State.” Reynolds v. Sims,

supra,

at 575 , 84 S.Ct. at 1388.

Reynolds

and its companion cases establish that denials of equal protection may not be justified by reference to the needs of a system of subordinate political entities, themselves the products of state action. A later case concerning local government apportionment demonstrates that some minor deviations from the strict standard of equal voting power is permissible when a state’s representation system is dependent upon political subdivisions over which legislators exercise independent administrative functions. Abate v. Mundt, 403 U.S. 182 , 91 S.Ct. 1904 , 29 L.Ed.2d 399 (1971). The instant case, however, involves a much more aggravated denial of equal protection if political subdivision lines are deemed sacrosanct. More important, in contrast to the history thought relevant in

Abate ,

past events in the metropolitan area and in Virginia betoken a willingness — indeed an enthusiasm — to disregard political boundaries when needful to serve state educational policies, among them racial segregation.

Effects of Segregation

The findings of fact herein and in the Court’s earlier opinions concerning the conduct of the School Board of the City of Richmond amply demonstrate the defendants’ resistance to the mandate of

Brown .

Each move in the agonizingly slow process of desegregation has been taken unwillingly and under coercion. The evidence indicates as well the manifold respects in which the dual school system affects the lives of persons educated therein and the development of the society in which it exists. Some such effects will endure long after the dual system may have been abandoned. Attitudes of whites and blacks, employment, income levels, housing segregation, and the direction of urban growth are all permanently shaped by school segregation. To the extent that segregation endured past 1954, it fostered these effects by reason of the defendants’ defiance of the announced constitutional mandate. The task of disestablishing the dual system may therefore be much more difficult in 1971. The defendants ought not to benefit from such self-imposed hardships.

Against this background the “desegregation” of schools within the city and the counties separately is pathetically incomplete. Not only is the elimination of racially identifiable facilities impossible of attainment, but the partial efforts taken contain the seeds of their own frustration. As before, and as courts have seen happen elsewhere and sought to prevent, racially identifiable black schools soon became almost all black; Richmond has lost about 39% of its white students in the past two years. Time and again courts have re

*104

jected half-measures as insufficient to fulfill school authorities’ affirmative duty, well aware that otherwise the achievement will be only temporary. That school authorities may even in good faith have pursued policies leading to some desegregation and may in fact have achieved some results does not relieve them of the remainder of their affirmative obligation. Clark v. Board of Education of Little Rock School District, 426 F.2d 1035 (8th Cir. 1970). If the existing assignment program, be it by freedom of choice, a pupil placement system, residential zoning, or some combination thereof, does not, upon consideration of alternative means, work effectively to abolish the dual system, it is legally defective. Green v. County School Board of New Kent County,

supra;

Davis v. School District of City of Pontiac,

supra,

443 F.2d at 576-577 (6th Cir.), cert. denied, 404 U.S. 913 , 92 S.Ct. 233 , 30 L.Ed.2d 186 (1971); Bradley v. Milliken,

supra,

338 F.Supp. 585 (at 591).

The institution within the three existing school districts of something which might in some other context pass for desegregation of schools is a phenomenon dating at best from the opening of the 1971-72 school year, which took place during the trial of this case. Prior thereto each system was in some respect nonunitary, and the Court is not fully advised as to the current status of the county system. Even were each existing system, considered in a vacuum, as it were, to be legally now unitary within itself, the question still remains whether a state policy having the effect of preventing further desegregation and foreseeably frustrating that which has been accomplished to date may be imposed upon a very recently achieved desegregated situation. Momentary unitary status — assuming it existed here, which has not been shown — will not insulate a school division from judicial supervision to prevent the frustration of the accomplishment. Courts require school boards to take action to prevent resegregation by various means. Lemon v. Bossier Parish School Board, 446 F.2d 911 (5th Cir., June 17, 1971). See also, Louisiana v. United States, 380 U.S. 145, 156 , 85 S.Ct. 817, 823 , 13 L.Ed.2d 709 , where the Supreme Court in a Fourteenth and Fifteenth Amendment case concerning voting rights speaks of a “need to eradicate past evil effects and to prevent the continuation or repetition in the future of the discriminatory practices. ...”

It should be borne in mind that at the very least a fair interpretation of the burden placed by law upon those who by official action have created segregated schools is to utilize official action to desegregate them, as Mr. Justice Douglas has stated, at least until the force of the early segregation policy has dissipated.

15

As the Court has already stated, school district lines within a state are matters of political convenience. The claim that the defendant counties have a right to keep their separate systems to be utilized solely by residents of the respective counties has little merit in the face of past discriminatory practices on the part of all of the defendants. Such a contention buttressed by the historical facts of gross discrimination against the blacks in almost all aspects of life, which have in the instant case proximately resulted in the white islands surrounding the City of Richmond, simply points up the immediate need for the relief sought. “Even historically separate school districts, where shown to be created as part of a state-wide dual school system or to have cooperated together in the maintenance of such a system, have been treated as one for purposes of desegregation.” Lee v. Macon County Board of Education, 448 F.2d 746, at 752 (5 Cir. 1971). The Chief Justice, speaking for the Court in

Swann, supra,

points out the need for judicial action where state

*105

agencies have deliberately fixed or altered demographic patterns. Such patterns as shown by the racial composition of the respective political subdivisions in this ease are an inevitable result of state action.

The consolidation of the respective school systems is a first, reasonable and feasible step toward the eradication of the effects of the past unlawful discrimination. All that is required of the defendants is that they take affirmative action to maximize integration in all feasible ways to the end that there will be the immediate establishment of a unitary school system resulting, as the Court finds from the expert testimony adduced, in the opportunity for the plaintiff class to secure that to which they are constitutionally entitled — equality of education.

The Court’s specific findings of fact, based almost entirely on uncontradicted evidence, amply support the relief prayed for. In the solution of the problem of school segregation, federal courts have not treated as immune from intervention the administrative structure of a state’s educational system, to the extent that it affects the capacity to desegregate. Geographically or administratively independent units have been compelled to merge or to initiate or continue cooperative operation as a single system for school desegregation purposes.

Although under governing precedents special deference is due a state’s decision to adopt a particular organizational structure in pursuit of quality education, where adherence to any such plan is chiefly motivated by a preference for separation of the races, courts intervene to forestall any segregatory effect. Where the effect of maintaining a given organizational structure is to prevent the achievement of a substantially greater degree of actual desegregation otherwise attainable, school administrators must justify their decision by reference to predominantly nonracial educational motives. Cases outside this circuit have addressed themselves primarily to the issue of the racial effect alone, without regard to subjective intention, of creation or maintenance of separate school systems. However, in each such case where a search for invidious motive was undertaken, it was found.

The rearrangement of district boundaries where it will cause less than complete segregation has been enjoined where it would impede or frustrate the achievement of desegregation and no substantial state interest, save the desire to continue segregation, supported the change.

In Burleson v. County Board of Election Commissioners, 308 F.Supp. 352 (E. D.Ark.) aff’d. 432 F.2d 1356 (8th Cir. 1970), the nearly all white Hardin area sought to secede from the Dollarway school district; it had been made part of that district in an earlier consolidation move prior to

Brown .

The separation attempt followed desegregation decrees addressed to the entire area, but sentiment had been building for it beforehand. The trial court found that the effect on racial proportions in the district would not be insubstantial; the black percentage would go from 55% to 57% immediately, and further white flight could be expected. The court refused to permit the division in circumstances where it was readily inferable that the process of desegregating would be made substantially more difficult by the withdrawal of the Hardin area, and the change was at least partially motivated by a desire to escape integration. Motivation, however, was not the key to the

Burleson

court’s decision; the crucial factor was the impact upon an area in the process of creating a unitary school system.

In Aytch v. Mitchell, 320 F.Supp. 1372 (E.D.Ark.1971), an effort was made to divide by

referendum

a school district in the process of desegregation; if successful, the resulting independent districts would be nearly all black and all white. As in

Burleson ,

secession sentiment had existed before a desegregation decree was filed, but came near fruition thereafter. The court determined that

*106

the division of the district was racially-motivated and, regardless of motive, would almost completely impede segregation. Because of the impact of the separation on the local authorities’ duty to desegregate the schools, the change was enjoined.

Id.,

1377.

The city of Oxford, Alabama, had had an independent school system until 1932, when its schools became part of the Calhoun County system. During the 1969-70 school year, when Calhoun County schools came under orders to develop a desegregation plan, Oxford established its own school system. Its new board of education consented to a county board proposal which entailed the receipt of blacks in its schools, raising their student bodies to about 20% black in population. The city was about 5% black. The plaintiffs suggested an alternative, involving sending some Oxford residents to formerly black schools rather than closing them. The district court ordered a zoning plan covering county and city systems, the substance of which is not here relevant.

The Fifth Circuit rejected Oxford’s contention that its separate status entitled it to keep its students within city boundaries and upheld the district court’s decision to treat the city and county as a single unit.

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 separate city school system. 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 unitary school system. The city cannot secede from the county where the effect — to say nothing of the purpose — of the secession has a substantial adverse effect on desegregation of the county school district. If this were legally permissible, there could be incorporated towns for every white neighborhood in every city. . Even historically separate school districts, where shown to be created as part of a state-wide dual school system or to have cooperated together in the maintenance of such a system, have been treated as one for purposes of desegregation ....

School district lines within a state are matters of political convenience. It is unnecessary to decide whether long-established and racially untainted boundaries 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 ségregation ....

Oxford in the past sent its black students to County Training. It cannot by drawing new boundaries disassociate 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 purposes of this case as part of the Calhoun County school system. Lee v. Macon County Board of Education,

supra,

448 F.2d 746 (5th Cir. 1971).

Soon thereafter another panel of the same court rejected the attempt of another Alabama city, Pleasant Grove, to create a “splinter” school district, physically within but administratively separate from Jefferson County, with the effect of thwarting the operation of a unitary school system. As in the Oxford case, no study of the motivations lying behind the separation was made; it was deemed irrelevant. Any limitation, the court said, citing North Carolina Board of Education v. Swann, 402 U.S. 43 , 91 S.Ct. 1284 , 28 L.Ed.2d 586 (1971), on a school authority’s discretion which worked to prevent its fulfillment of the affirmative obligation to operate a unitary system could not receive judicial recognition. Stout v. United

*107

States, 448 F.2d 403 (5th Cir. July 1971).

One further decision by a state court established the duty of the state’s Commissioner of Education to prevent nearly all white Morris Township from withdrawing its students from the secondary school in Morristown, which it surrounded and which had a substantially greater proportion of black students. The two legal entities, the New Jersey Supreme Court said, realistically constituted a single community in fact, divided by arbitrary political boundaries. Jenkins v. Township of Morris School District, 58 N.J. 483 , 279 A.2d 619 (June 25, 1971). They were interdependent in most municipal services. Black residences, however, were located mainly in the town, where housing costs were lower. The town’s school population was 39% black, whereas that of the township was 5% black. Nearby schools of the two jurisdictions had disparate racial enrollments, readily perceived by the community. Township students attended the high school in the town, about 14% black. If they withdrew as planned the black ratio would double immediately and continue to rise. A township referendum had supported separation rather than merger of school systems, and plans were set in motion to create a separate township high school.

The commissioner foresaw the creation of segregated school systems, but thought that he lacked the power to prevent it. The state supreme court emphasized by contrast the broad authority given the commissioner over the state’s school system and the firm statutory policy against segregation. In addition the court reviewed analogous cases, such as

Haney, supra,

and Reynolds v. Sims,

supra,

rejecting as barriers to the implementation of the equal protection guarantee existing political subdivision lines:

This does not entail any general departure from the historic home rule principles and practices in our State in the field of education or elsewhere; but it does entail suitable measures of power in our State authorities for fulfillment of the educational and racial policies embodied in our State Constitution and in its enabling legislation. Surely if those policies and the views firmly expressed by this Court in Booker v. Board of Ed. of City of Plainfield Union County ( 45 N.J. 161 , 212 A.2d 1 ) and now reaffirmed are to be at all meaningful, the State Commissioner must have power to cross district lines to avoid “segregation in fact” (Booker, 45 N.J. at 168 , 212 A.2d 1 ), at least where, as here, there are no impraeticalities and the concern is not with multiple communities but with a single community without visible or factually significant internal boundary separations.

Id.,

279 A.2d at 629 .

The court adverted to a state-authorized program under which students might cross such lines for valid educational purposes and noted that the districts in question had used such a system. Administrative constructions by the state’s central educational authorities of this pupil-exchange statute, which narrowed its application in favor of increased local power to terminate the program, were rejected, as had been earlier self-limiting constructions by the state officials. The New Jersey court concluded that the state commissioner in law possessed the power to prevent a termination of the exchange relationship whereby township residents were educated by the town. Furthermore, in the context of a single community divided into separate school districts, he was found to have the authority, in the power to withhold state funds, to direct a merger of the existing districts into one.

Courts have in other instances as well not merely forestalled the creation of new administrative units designed to enhance segregation, but have directed the reconstitution of existing districts so as to facilitate school desegregation.

In Haney v. County Board of Education of Sevier County,

supra,

an all black and an all white school district were ordered merged. Each separate district had its genesis in consolidations occur

*108

ring during the

pre-Brown

era of compulsory segregation. The bounds of each were very irregular; indeed one was composed of noncontiguous sections. No explanation for the shape of the districts came to mind save one; their bounds followed patterns of residential segregation:

It is readily apparent that the Sevier County Board of Education approved reorganization of districts along district lines which facilitated the segregated system of public education then required by Arkansas law.

Id.,

410 F.2d 924 .

The evidence showed also that after the creation of the larger, segregated districts the few blacks resident in the white district were transported into the black district for their education.

Because the districts were formed under the dual system and in order to accommodate its operations, their continuation after

Brown

carried forward the effect of that policy and could only have the effect of perpetuating segregation. The

Haney

court relied in formulating relief on the statement in

Brown, II

recognizing that the process of desegregation might well entail the modification of “school districts and attendance areas,” Brown v. Board of Education of Topeka, 349 U.S. 294, 300 , 75 S.Ct. 753 , 99 L.Ed. 1083 , (1955). The force of the mandate to desegregate requires sometimes the sacrifice of a degree of local autonomy in the formation and operation of governmental units; otherwise a state would be enabled to “evade its constitutional responsibility by carve-outs of small units,” Hall v. St. Helena Parish School Board,

supra,

aff’d 287 F.2d 376 (5th Cir. 1961).

The court directed that the districts on remand be consolidated. On a later appeal from the decree, the court of appeals held that the manner in which merger was effected would not be restricted to those mechanisms of consolidation provided under state law.

Appellees’ assertion that the District Court for the District of Arkansas is bound to adhere to Arkansas law, unless the state law violates some provision of the Constitution, is not constitutionally sound where the operation of the state law in question fails to provide the constitutional guarantee of a non-racial unitary school system. The remedial power of the federal courts under the Fourteenth Amendment is not limited by state law. Haney v. County Board of Education of Sevier County, 429 F.2d 364, 368 (8th Cir. 1970).

Thus the administrative arrangement for a combined district was ordered altered from that fixed by Arkansas law, in order to provide for equal representation from the residents of merged segments.

In United States v. Texas, 321 F.Supp. 1043 (E.D.Tex.1970), aff’d. 447 F.2d 441 (5th Cir. 1971), plaintiffs relied on the action and inaction of defendant state and local educational officials in permitting to continue intact a number of all black school districts, survivals of the era of segregation. Those officials sued were empowered to bring about consolidation of the districts in question or were engaged in supervising and supporting them from the state level by the disbursement of state and federal assistance payments.

The administrators of the black districts had

arranged for, approved or acquiesced in an assortment of detachments and annexations, of territory and student transfer and transportation arrangements which have had the effect of transferring students between administrative units so as to create and perpetuate all-black districts.

Id.,

1048.

The state’s central officials had approved these exchanges of students and financed them without giving consideration to constitutional requirements. By annexation or detachment white and black districts were kept separate. Transfer and transportation policies worked to the same end.

*109

The court held that “separate neighboring or overlapping school districts, one black and the other white, are unconstitutional when created and maintained to perpetuate a dual school system.”

Id.,

1050. Part of the

de jure

segregation found was traceable directly to the operation of the dual system. But the court deemed equally unlawful those segregated districts which resulted when “[b]y isolating racially homogeneous residential areas into formal political enclaves, district lines drawn prior to 1954 have entrenched segregation . .”

Id.,

1050-1051.

Liability in officials with statewide authority was found where they “participated in the continued support of administrative units which were created under color of a State law requiring separate educational facilities or, at the least, were formed without regard to Constitutional standards of equality.”

Id.,

1052. Fulfillment of their affirmative duty and that of local personnel to take such action as is necessary to eliminate the dual system could not be reconciled with continued operation of district lines which resulted in continued segregation. The court so held in the context of available state-law mechanisms for the elimination by merger of the offending districts.

State officials were required by the court to reorganize the districts with an eye to considerations of equal educational opportunity, to cease permitting local officials to carry on policies which tended to foster segregation, and to enforce these new policies with the affirmative mandate of sanctions. After later hearings on the central authority’s proposed plans, they were ordered to prevent transfers of students, changes in district lines, and decisions concerning transportation, extracurricular activities, faculty assignments, student assignments, or curriculum from promoting segregation and to back their policies with denials of accreditation and of state educational funds.

In other circumstances existing racially separate administrative units have been compelled to cooperate with others of overlapping jurisdiction or with districts located nearby for the purposes of achieving faculty and student desegregation, while continuing to exist as separate units for purposes of curriculum, administration and some financing. Consideration was given solely to the effect such a system would have as part of the effort to achieve desegregation. In United States v. Crockett County Board of Education, No. 1663—Civil, mem. decís. (W.D.Tenn. May 15, 1967), seven independent school systems were directed to collaborate in order to implement a free choice plan and to desegregate faculties. In Taylor v. Coahoma County School District, 330 F.Supp. 174 (N.D.Miss. Feb. 12, 1971), separate state agencies operating racially identifiable high schools were ordered to act jointly as one board to desegregate the faculties of each by reassignment between the two facilities and to accept students from within the county on the basis of geographic zones. The existence of separate legal entities for administration was held legally insufficient to frustrate required desegregation of the facilities.

In Robinson v. Shelby County Board of Education, 330 F.Supp. 837 (W.D. Tenn.1971), the district court ordered the joinder as defendant of the Memphis City School Board in order to desegregate county schools by pairing with a facility in the city system.

Further support for a court order directing the elimination of racially identifiable schools by means of cooperation between or consolidation of formerly separate divisions of a state’s school system within a metropolitan area is given by United States v. Board of School Commissioners of the City of Indianapolis,

swpra.

As in other jurisdictions the public schools in Indiana constituted a centrally operated state system. Moreover, several state agencies had historically pursued policies of repression toward blacks. Housing segregation enforced by private practices and state agencies was common through the years; as a result black housing reflected a pattern of

*110

containment. Schools, too, had historically been segregated, although a 1949 statute had apparently ordered the gradual abandonment of that policy. The Indianapolis board, however, by construction and assignment policies deliberately preserved racial separation. Zone lines were imposed on known segregated neighborhoods. In 1954 and in 1968 the outlines of the dual system of 1949 were still clearly visible, maintained by a great variety of manipulative techniques. As a result in 1968 a great number of identifiably black schools existed, and in a system with a 36% black student body, 88.2% of black elementary students were in majority black schools.

From 1954 through 1970 the black proportion of the district’s population had expanded rapidly, whereas the expansion of white population took place primarily in Marion County outside the district. New areas of black housing grew primarily contiguously to existing black housing in the city’s core. Changes in housing racial composition of various areas were rapidly followed by dramatic changes in the composition of local schools. In some instances the changes in housing patterns could be traced directly to the location of public housing projects.

Furthermore, the state legislature had by special enactment frozen the size for practical purposes of the Indianapolis school district, while permitting the city to expand for other purposes. Recently the government of the city and Marion County had been merged for all purposes except school operation. Left separate from the Indianapolis school system were ten school units within Marion County, which units collectively had a school population of 73,205, 2.62% black.

The court therefore foresaw a process of accelerating advance of identifiably black schools, as resegregation took place in schools on the fringe of expanding black neighborhoods.

[And] the entire central core of the involved city develops into a virtually all-Negro city within a city when, as in Indianapolis, the Negro residential area is largely confined to a portion of the central city in the first place. Id., 332 F.Supp. at 676.

Given the ability and inclination of whites to depart the jurisdiction of the defendants, and the likelihood that attempts to eliminate existing segregation within that restricted area would succeed only briefly, to be followed by resegregation, the court determined to consider exercising its broad equity powers to find a more lasting remedy. Nearby municipal and school corporations were joined as defendants in order to litigate the legality of their exclusion from the city system by special legislation and the necessity in any case of creating a metropolitan school district in order to relieve

de jure

segregation in the city.

Other courts have indicated that a modification of school district lines, including a consolidation of existing units, might be appropriate purely as a matter of relief from state-imposed school desegregation. In Calhoun v. Cook, 332 F.Supp. 804 (N.D.Ga., July 28, 1971), the district court discussed at length the history of efforts to achieve the final desegregation of the dual system in Atlanta. During the pendency of the lawsuit the city’s school racial proportions had shifted from 70% white to 70% black and the system’s enrollment fell from 115,000 to 100,000 pupils. In 1970 the system lost 7,000 white pupils and gained 1,000 blacks. Areas of black housing shifted outward from the center over the years, thirty-four schools, some built since 1961, located along the line dividing zones of white and black residency in an effort to foster integration, rapidly converted to all black occupancy. Twenty-nine schools built to serve federally funded housing were by 1971 mainly black.

The court attributed the failure to achieve lasting integration to housing segregation, but, in the absence of evidence to the contrary, determined that this was beyond official control.

In the absence of adequate facilities to implement a large-scale transportation plan, the court placed its hopes on a ma

*111

jority-minority transfer plan. Desegregation of each facility through transportation, the court feared, would only result in an accelerated departure of whites and the creation of an all-black school system; the very result

Brown

condemned. The court declined to order substantial further relief. As a result, of 152 schools, only 38 were left with student bodies made up of less than 90% of one race or another.

However, in a final section styled “Comment” the court noted that no serious attention had been given to the possibility of consolidating the city system with the independent one of Fulton County, in which Atlanta lies in part:

In terms of efficiency, taxes, and quality education, such consolidations normally produce long-range improvements. In terms of the current problem, such consolidation might produce partial, even though not perfect, solutions. Certainly for many reasons connected with this case, this one aspect ought to be studied without delay.

Id.,

332 F.Supp. 809 .

The Court of Appeals for the Fifth Circuit reversed, directing the lower court to consider the merits of a desegregation plan being prepared by the plaintiffs. It further directed the district court to enter supplementary findings of fact and conclusions of law on the proposal to consolidate the city and county systems outlined in the lower court’s “comment.” Calhoun v. Cook, 451 F.2d 583 (5th Cir., 1971).

In Bradley v. Milliken,

supra,

the district court determined that state-imposed segregation existed in the Detroit schools. Public and private racial discrimination had created a pattern of complete racial segregation in housing throughout the city. On this matrix the school authorities had superimposed an attendance zone system managed in several respects in order to promote racial separation. The state’s central school administrators, further, had withheld funds which might have been used to break up the patterns of racial separation, and the state legislature had attempted to block a voluntary city desegregation plan.

In its legal conclusions the district court stressed that the obligations imposed by the Fourteenth Amendment fall upon the state and observed that Michigan’s central educational administrators have extensive powers over the state’s educational system, including that of school district reorganization, and that state law provided mechanisms for annexation and consolidation of school districts. The court did not direct the joinder of further school districts as parties, however, pending submission of proposed desegregation plans by local and state officials.

Thus in the Oxford and Pleasant Grove cases, in

Jenkins ,

and in

Crockett County,

the achievement of desegregation and the prevention

of

resegregation were found to override state policies which might embody a preference for school attendance within the district of residence. At the same time courts did not consider the policy of parental control over their children’s schooling of such telling importance as to require, necessarily, the abandonment of separate districts as financing and administrative units; that question might be resolved as the state officials and their constituents might wish. In

Haney, Texas,

and

Burleson ,

however, consolidation or maintenance of unified status was considered the appropriate

remedy.

Our Court of Appeals recently decided three “splinter” district cases: Wright v. Council of the City of Emporia,

supra;

United States v. Scotland Neck City Board of Education, 442 F.2d 575 (4th Cir. 1971); and Turner v. Littleton-Lake Gaston School District, 442 F.2d 584 (4th Cir. 1971). In two of the three cases the court upheld the creation of a new, smaller district of higher white percentage than the area from which it was taken.

The rule which the Court adopted and by which the Court is presently bound, requires a two-level analysis. If the new area’s population is sufficiently different in composition from that of

*112

the parent district to support an inference of an aim to perpetuate segregation, the change should be enjoined. If no such drastic change takes place, the Court must fully analyze the circumstances to determine whether the paramount motive for the realignment is to preserve segregation, or is related to valid non-racial educational goals.

16

In each instance of the three the new, small district had a student body about half black and half white. In

Emporia

the larger district changed from 66% to 72% black; in

Scotland Neck

from 77% to 80% black; in

Littleton-Lake Gaston

from 67% black to 72.5% black. In each case the change was assertedly made for the sake of providing better financing for the education of pupils in the withdrawn area. However, in

Littleton-Lake Gaston

the tidal court found no such purpose in fact. Furthermore, in that case, the school district boundaries followed no pre-existing political boundaries which might have been deemed “natural” and free from segregatory intention. Finally, the legislative history of the bill creating the

LittletonLake Gaston

district betrayed such a discriminatory purpose. The last secession therefore was enjoined.

In both

Emporia

and

Scotland Neck

the Fourth Circuit relied in particular upon the innocent nature of pre-existing city boundaries as barriers which might legitimately be defended as the limits of assignment zones for small areas for which the state concededly had not yet succeeded in operating unitary school systems. The finding of nonracial purpose in creating and maintaining such zones appears greatly to have hinged upon this factor, which entails a number of unstated assumptions.

Before exploring those points, however, the Court reverts to the first stage of analysis: Does the effect alone of the lines’ maintenance as assignment barriers support an inference of racial motivation ? In the metropolitan area of Richmond the impact of the maintenance of school division lines is much greater than in the three earlier cases. The city system’s racial compo

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