# Brunson v. Board of Trustees of School District No. 1

> Court of Appeals for the Fourth Circuit · June 5, 1970 · 429 F.2d 820

URL: https://www.frixlaw.com/law-library/cases/8883243

## Case

- **Full name:** Bobby BRUNSON, Elizabeth Brunson and Ellis Brunson, by McQueen Brunson, their father and next friend v. BOARD OF TRUSTEES OF SCHOOL DISTRICT NO. 1 OF CLARENDON COUNTY, SOUTH CAROLINA, L. B. McCord, County Superintendent of Education C. E. Buttes, District Superintendent of Education J. W. Sconyers, Chairman Board of Trustees C. N. Plowden, W. A. Brunson, Henry Everett, and L. Richardson, Members of the Board of Trustees, United States of America, Amicus Curiae
- **Court:** Court of Appeals for the Fourth Circuit
- **Decided:** June 5, 1970
- **Citations:** 429 F.2d 820
- **Precedential status:** Published
- **Opinion:** Concurrence by Sobeloff
- **Judges:** Authorizes, Boreman, Bryan, Butzner, Craven, Haynsworth, Sobeloff, That, Winter
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8883243

## Opinion text

Separate concurring opinion of
SOBELOFF, Circuit Judge:
This case is the lineal descendant of Briggs v. Elliot, one of the four cases consolidated in Brown v. Board of Education, 347 U.S. 483 , 74 S.Ct. 686 , 98 L.Ed. 873 (1954). 1 That it is still being litigated at this date, nineteen years since Briggs was initiated and sixteen years after the decision in Brown , is a most sobering thought.
The sole prayer of the Board’s appeal was that it be allowed to retain a freedom of choice plan that never has worked and never will. For many years the fountainhead of freedom of choice was Judge Parker’s famous dictum on the remand of Briggs itself. 2 But the era of freedom of choice as a barrier to integration is over, Green v. Coúnty School Board of New Kent County, 391 U.S. 430 , 88 S.Ct. 1689 , 20 L.Ed.2d 716 (1968), and the Briggs pronouncement is dead. Walker v. County School Board of Brunswick .County, 413 F.2d 53 , 54 n. 2 (4th Cir. 1969). As its appeal shows, the Clarendon County Board, so closely associated with the doctrine from its genesis, is as yet unprepared to recognized its demise.
This appeal was the first to be reached for hearing after our decision in Swann v. Charlotte-Mecklenburg Board of Education, 431 F.2d 138 (4th Cir. 1970). At oral argument counsel urged that to jettison freedom of choice, and force white children to attend schools in which they would be a minority would be “unreasonable” under the standard *824 newly announced in Swann . I ventured in Swann that “[h]anded a new litigable issue — the so-called reasonableness of a proposed plan — school boards can be expected to exploit it to the hilt,” 431 F.2d at 154 . Thus the prediction has already been realized.
Nevertheless, it is not so much what the Board has said but what my dissenting colleagues say that prompts this response. The dissenters agree that the Board’s freedom of choice plan is deficient, but they consider the remedy too strong. As they point out, we are threatened in this case with an exodus of white students that tends to convert the court-ordered integration into an exercise in futility. Understandably my Brethren grope for a practical solution; but this desire has caused them to seize on an idea which, I am convinced, they would on deeper consideration reject. What appears to them in this case as a moderate expedient is, in my opinion, legally unfounded and fraught with injurious consequences.
I.
The linch-pin of the dissent is the notion that, ideally, the goal of desegregation should be to achieve an “optimal mix,” consisting of a white majority. It suggests, as did Dr. Pettigrew in his testimony in Brewer v. School Board of City of Norfolk (4th Cir. 1970), that desegregation should not go so far as to put whites in minority situations. In Brewer we gave short shrift to the Board “principles” fashioned largely from Dr. Pettigrew’s testimony. Summary treatment is all it deserved.
Essentially, the theory postulates that the quality of a school depends largely on its “class climate,” and that middle class schools are better. Therefore it is important to create dominantly middle class school populations. The optimum level, which would include enough middle class students to establish the class character of the school and at the same time include a substantial number of lower class children to benefit from it, would be about 70% middle class and 30% lower class. In general, the theory continues, “white” is synonymous with “middle class,” “black” is the same as “lower class.” Accordingly, the educationally sound objective is to achieve majority white schools (optimally 70-30).
Since the dissent has seen fit in this case to revive the spectre of the Pettigrew thesis, previously cast aside, I cannot let the matter pass without comment. This is no mere issue of expert testimony. It is no mere question of “sociology and educational theory.” There have always been those who believed that segregation of the races in the schools was sound educational policy, but since Brown their reasoning has not been permitted to withstand the constitutional command. When the underpinnings of the white majority proposal are exposed, they seem to constitute a direct attack on the roots of the Brown decision. The minority’s readiness even to entertain the idea reflects, I respectfully submit, a profound misunderstanding of the social and constitutional history of this nation and the Negro people.
It would, I am sure, astonish the Brown court to learn that 16 years later, in a case stemming directly from that decision, it was seriously being contended that desegregation might not be required insofar as it threatened to impair majority white situations. My conviction comes not only from a reading of the Brown opinion itself but from a conspectus of over 100 years of constitutional adjudication.
To begin to assess the magnitude of the Brown declaration, one must understand the significance of Dred Scott v. Sanford, 60 U.S. (19 How.) 393 , 15 L.Ed. 691 (1856), which is at once the low mark and the focal point of the constitutional history of the rights of black Americans. For there, in one gratuitous, sweeping opinion, Chief Justice Taney offered a justification for the slave system and all its incidents. Black people had been given no rights under the Constitution because they were not included as part of the “people of the United States.” They were excluded be *825 cause, in the opinion of the founding fathers, they were
“Beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the Negro might justly and lawfully be reduced to slavery for his benefit.” 60 U.S. at 407 .
The inferiority of the black man was thus the “axiom in morals as well as politics” (Id.) that furnished the justification not only for slavery, but also of the “perpetual and impassable barrier * * * intended to be erected between the white race and the one which they had reduced to slavery” (Id. at 409) in the free as well as slave states. To preserve the separation it had thus been necessary “to stigmatize, and [impress] deep and enduring marks of inferiority and degradation” (Id. at 416) upon the Negro race.
The Thirteenth, Fourteenth and Fifteenth Amendments were the explicit and total repudiation of the Dred Scott teaching. Their adoption signaled a national revulsion against the premises of Dred Scott, a national commitment to eliminate the degradation imposed upon the black man and a national determination to elevate him to equal status. Yet the postReconstruetion Supreme Court failed to acknowledge the far-reaching ramifications of the Wartime Amendments. It found in the Civil Rights Cases, 109 U.S. 3 , 3 S.Ct. 18 , 27 L.Ed. 835 (1883), no affirmative federal power to end discrimination in public accommodations, and in Plessy v. Ferguson, 163 U.S. 537 , 16 S.Ct. 1138 , 41 L.Ed. 256 (1896), no violation of the Constitution in state-enforced “separate but equal” facilities. The Plessy majority thought
the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. 163 U.S. at 551 , 16 S.Ct. at 1143 .
With this facile assertion the Court passed over the obvious truth that “[t]he Black Codes were a substitute for slavery; segregation was substituted for the Black Codes.” Bell v. Maryland, 378 U.S. 226, 247 , 84 S.Ct. 1814, 1826 , 12 L.Ed.2d 822 (1964) (opinion of Douglas, J.) But even more astounding the Court ignored (without even a citation) the explicit justification given to apartheid in Dred Scott a.nd saw fit instead to ascribe the degraded status of the Negro race to its voluntary self-abasement !
. This sophism was well perceived by the first Mr. Justice Harlan, who predicted that Plessy would be “quite as pernicious as the decision made by the tribunal in the Dred Scott Case.” 163 U. S. at 559 , 16 S.Ct. at 1147 . It was the majority’s refusal fully to negate the Dred Scott axiom that prompted Harlan’s famous dissent:
[I]n view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. Id.
The significance of Brown must be appraised against this background. Certainly Brown had to do with the equalization of educational opportunity; but it stands for much more. Brown articulated the truth that Plessy chose to disregard: that relegation of blacks to separate facilities represents a declaration by the state that they are inferior and not to be associated with. By condemning the practice as “inherently unequal,” the Court, at long last, expunged the constitutional principle of black inferiority and white supremacy introduced by Dred Scott, and ordered the dismantling of the “impassible barrier” upheld by that case. As Judge Wisdom said in rejecting the dictum of Briggs v. Elliot, *826 Brown’s bróad meaning, its important meaning, is its revitalization of the national constitutional right the Thirteenth, Fourteenth, and Fifteenth Amendments created in favor of Negroes. This is the right of Negroes to national citizenship, their right as a class to share the privileges and immunities only white citizens had enjoyed as a class. Brown erased Dred Scott, used the Fourteenth Amendment to breathe life into the Thirteenth and wrote the Declaration of Independence into the Constitution. Freedmen are free men. They are created as equal as are all other American citizens and with the same inalienable rights to life, liberty, and the pursuit of happiness. No longer “beings of an inferior race” — the Dred Scott article of faith — Negroes too are part of “the people of the United States.”
United States v. Jefferson County Board of Education, 372 F.2d 836 (5th Cir. 1966), aff’d en banc, 380 F.2d 385 (5th Cir. 1967), cert. denied, Caddo v. Parish School Board v. United States, 389 U.S. 840 , 88 S.Ct. 67 , 19 L.Ed.2d 103 (1967).
The invidious nature of the Pettigrew thesis, advanced by the dissent in the present case, thus emerges. Its central proposition is that the value of a school depends on the characteristics of a majority of its students and superiority is related to whiteness, inferiority to blackness. Although the theory is couched in terms of “socio-economic class” and the necessity for the creation of a “middle-class milieu,” nevertheless, at bottom, it rests on the generalization that, educationally speaking, white pupils are somehow better or more desirable than black pupils. This premise leads to the next proposition, that association with white pupils helps the blacks and so long as whites predominate does not harm the white children. But once the number of whites approaches minority, then association with the inferior black children hurts the whites and, because there are not enough of the superior whites to go around, does not appreciably help the blacks.
This idea, then, is no more than a resurrection of the axiom of black inferiority as justification for separation of the races, and no less than a return to the spirit of Dred Scott. The inventors and proponents of this theory grossly misapprehend the philosophical basis for desegregation. It is not founded upon the concept that white children are a precious resource which should be fairly apportioned. It is not, as Pettigrew suggests, because black children will be improved by association with their betters. Certainly it is hoped that under integration members of each race will benefit from unfettered contact with their peers. But school segregation is forbidden simply because its perpetuation is a living insult to the black children and immeasurably taints the education they receive. This is the precise lesson of Brown . Were a court to adopt the Pettigrew rationale it would do explicitly what compulsory segregation laws did implicitly.
Moreover, even apart from its racial aspect, the Pettigrew plan would be constitutionally illegitimate. To recall the words of Mr. Justice Harlan, “[t]here is no caste here.” The goal of social class segregation is scarcely more defensible than that of racial segregation. The notion that public authorities may use their powers and resources to erect a system of social stratification is not only novel but totally alien to the democratic idea. Viewing the matter on a policy level, a country as sadly riven as ours stands in no need of additional polarizing projects. From a constitutional standpoint, a program of apartheid according to social class is as impermissible as avowed racial separation — and as repugnant to the Equal Protection Clause. Our Constitution does not permit the insulation of whites from blacks, rich from poor, high class from low class.
II.
The dissent’s exposition of the white majority thesis is only in connection with *827 its perception of a serious “white flight” problem. The position of the dissenting Judges is somewhat ambiguous because each of them in Brewer joined in disapproving the Board’s plan based on Pettigrew. 3 Essentially the dissenting opinion, as I read it, does not advocate that white majorities are to be protected generally. However, my Brethren do argue that the predominantly white status should be preserved when not to do so would put the whites in such small minorities that they would predictably flee the public school system.
“White flight” is one expression of resistance to integration, but the Supreme Court has held over and over that courts must not permit community hostility to intrude on the application of constitutional principles. Brown II, 349 U.S. at 300, 75 S.Ct. 753 , 99 L.Ed. 1083 ; Cooper v. Aaron, 358 U.S. 1 , 78 S.Ct. 1401 , 3 L.Ed.2d 5 (1958). The Court has specifically addressed itself to this problem:
We are frankly told in the Brief that without the transfer option it is apprehended that white students will flee the school system altogether. “But it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them.” Brown II, 349 U.S. at 300 , 75 S.Ct. at 756 .
Monroe v. Board of Com’rs of City of Jackson, 391 U.S. 450, 459 , 88 S.Ct. 1700 , 20 L.Ed.2d 733 (1968). The force of the holding is inescapable: dissidents who threaten to leave the system may not be enticed to stay by the promise of an unconstitutional though palatable plan.
I too am dismayed that the remaining white pupils in the Clarendon County schools may well now leave. But the road to integration is served neither by covert capitulation nor by overt compromise, such as adoption of a schedule of “optimal mixing.”
If the sweep of the dissenters’ argument extended no further than to seek a detente in this one school district it would still be erroneous, but I would not feel compelled to voice this, special expression. However, the influence of judicial sanction — in any situation — of the white majority model cannot be so confined. The purported restriction-of the thesis to extreme white minority-white flight situations is really no limitation at all. Rather it offers a premium for community resistance. More to be feared than white flight in Clarendon County would be any judicial countenancing of the suggestion that abandoning or qualifying a desegregation program is a legally acceptable way to discourage flight. For once this tactic were sanctioned in this instance its insidious example would be followed by other school boards hostile to desegregation, with resulting widespread frustration of the unitary school principle.
Circuit Judge WINTER authorizes me to state that he joins in this opinion.
. In 1951 plaintiffs instituted suit against Clarendon County to declare unconstitutional the laws of South Carolina requiring segregation of the races. A three-judge court was convened and relief was denied. Briggs v. Elliot, 98 P.Supp. 529 (D.S.C.1951), vacated, 342 U.S. 350 , 72 S.Ct. 327 , 96 L.Ed. 392 (1952), on remand, 103 P.Supp. 920 (D.S.C.1952). The Supreme Court reversed in Brown I, 347 U.S. 483 , 74 S.Ct. 686 , 98 L.Ed. 873 (1954), and remanded in Brown II, 349 U.S. 294 , 75 S.Ct. 753 , 99 L.Ed. 1083 (1955), to the District Court, 132 P.Supp. 776 (D.S.C.1955).
The Briggs suit was terminated in 1960 and a new suit was commenced before a single district judge. After a further period of protracted litigation the case has reached its present stage. Brunson v. Board of Trustees of School Dist. No. 1 of Clarendon County, 30 F.R.D. 369 (D.S.C.), rev’d, 311 F.2d 107 (4th Cir. 1962), cert. denied, 373 U.S. 933 , 83 S.Ct. 1538 , 10 L.Ed.2d 690 (1963), on remand, 244 P.Supp. 859 (D.S.C.1965) ; 271 P. Supp. 526 (D.S.C.1967).
. “Nothing in the Constitution or in the decision of the Supreme Court takes away from the people freedom to choose the schools they attend. The Constitution, in other words, does not require integration- — it merely forbids discrimination.” 132 P.Supp. 776, 777 (E.D. S.C.1955).
Judge Parker’s aphorism has been the subject of extended discussion by Judge Wisdom in United States v. Jefferson County Board of Educ., 372 F.2d 836, 862 (5th Cir. 1966), aff’d en banc, 380 F.2d 385 (5th Cir. 1967), cert. denied, Caddo Parish School Board v. United States, 389 U.S. 840 , 88 S.Ct. 67 , 19 L.Ed.2d 103 (1967), and by myself in a separate opinion in Bowman v. County School Board of Charles City County, 382 F.2d 326, 336 (4th Cir. 1967), and Creen v. County School Bd. of New Kent County, 382 F.2d 338 (4th Cir. 1967), rev’d, 391 U.S. 430 , 88 S.Ct. 1689 , 20 L.Ed.2d 716 (1968).
. The court held that
Application of the board’s principles of assignment for elementary and junior high schools fails to create a unitary school system in Norfolk. Instead it effectively excludes many black pupils from integrated schools on account of their race, a result which is the antithesis of a racially unitary system.
Judge Bryan concurred specially and said that
Utilization of these concepts, even if assumed to be sound scholastically, and although adopted bona fide by the Board and the Court as innovations to better the offering of public education, cannot stand against the peremptory decrees of Brown and its procreations. No fault can be found in the majority’s reiteration and exposition of the law to this effect, both as to pupils and faculty.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8883243. Public record. Not legal advice.