Petitioners Brief — Green v. County School Board of New Kent County

Supreme Court brief1968

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In THE

FEB 14 1968

Supreme Court of the Awited tare seen wi

OcToBER TEEM, 1967 ig

Db. 695 a

‘Cuaktes C. GREEN, e¢ al.,

_ Petttioners,

—vV oo

County Scuoot Boarp or New Kent County,

Vincinia, et al.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT pee FOR THE FOURTH CIRCUIT

~ BRIEF FOR THE PETITIONSRS

Of Counsel:

MicHarEL MELTSNER

MicuargL J. Henry

Jack GREENBERG

James M. Nasrit, III

Feankuin E. Waite

10 Columbus Circle

New York, New York 10019.

S. W. Tucker,

Henry L. Marsn, III

214 Hast Clay Street

Richmond, Virginia

Attorneys for Petitioners

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oJ urisdiction Sail

Constitptional Provision In¥olved |

Summary of Argument

_INDEX

Citations to Opinions Below

Question Presented

Statement

I. The Pleadings ,

II. The Plan Adopted by the Board : nil

III. The Evidence

RV. The District Court’s Decision

V. The Court of Appeals} Opinion 8

| ARGUMENT:

I. Introduction

Tl. A Freedom of Choice Plan Is Consiitutionally

Unacceptable Where There Are Other Meth-

eds, No More Difficult to Administer, Which

Would More Speedily Disestabtish the Dual

System

Oo Oo om fF tw W-

A. The Obligation of a School Board Under

PAGE

Brown v. Board of Education Is to ‘Dises- -

tablish the Dual School System: and to

Achieve a Unitary, Non-racial System ......

1. The Fourth Cireuit’s Adherence to

Briggs

2. Brown Contemplated Complete Reor- |

ganization

3. Case and Statutory Law

4. Equitable Analogies

5. Summary

III: The Record Clearly. Shows That a Freedom

of Choice Plan Was Not Likely to Disestab-

lish, and Has Not Disestablished, the Dual |

School System and That a Geographic Zone

Plan or “Consolidation Would Immediately

Have Produced Substantial Desegregation ....

CoNncCLUSION meal itil

TABLE OF CASES

American Enka Corp. v. N..L. R. B3 119 F. 2d 60 (4th

Cir. 1941)

Anderson v. Martin, 375 U. 8. 399

Board of Education of Oklahoma City Public Schools

v. Dowell, 372 F. 2d 158 (10th Cir 1967)

ee v. Sharpe, 347 U.S. 497 ieviles

Borders v. Rippy, 247 F. 2d 268, 271 (5th Cir., 1957) .. 28n

Boson v. Rippy, 285 F. 2d 43, 48 (5th Cir., 1960) —...... - 28n

Bowman v.. County School Board of Charles City

County, Va., 382 F. 2d 326 (4th Cir. 1967) 02. . On

Bradley v. School Board of the City of Richmond, 382.

U. S. 103 - 18n, 27n, 30

Braxton v. Board of Public Instruction . of Duval

County, Florida, No. 4598 (M. D. Fla. ), January 24,

1967 ....: . 49n

Briggs v. Elliot, 132 F. Supp. 776 (E. D. SC. 1955) . .28, 33

Brown v. Board of Education, 347 U.S. 483,349 U.S. +

294 .. 4n, 13, 15n, 21, 30, 31, 47

Burton v. Wilmington aie Authority, 365 U. S:

715 . 42n

Calhoun v. Latimer, 377 U. S. 263 ....2.......2: ee

Carpenter v. Steel Co., 76 NLRB 670 (1948) 002... 39 -

‘Clark v. Board of Education, Little Rock School Dis-

trict, 369-F. 2d 661 (8th Cir. 1966) . ih. 48n

Cooper v. Aaron, 358 U. S. 1 jennie , 30, 31n

Coppedge v. Franklin County Board of Education, .

273 F. Supp. 289 (E. D. N. C. 1967) -...2....22.20......... 23n, 49n

-Corbin v. County School Board of Loudon County,

Virginia, C. ‘A. No. 2737, August 27, 1967. ............. -49n

Dove v. Parham, 282 F. 24 256 (8th Cir. 1960) ............ 15n

Evans v. Ennis, 281 F. 24385 (3rd Cir. re 37°

Farley v. Turner, 281 F. 2d 131 (4th Cir.) 20 16

Franklin v. County School Boatd. of Giles County, |

Va., 242 F. Supp. 371 (W. D. Va. pss) reversed. 7

360 F. 2d 325 (4th Cir. i) -

"PAGE

| Gibson v. Board of Public Instruction of Dade County,

272 F. 2d 763 (Sth Cir. 1959) 2 15n

Gilliam v. School Board of the City of Hopewell, Va. "

345 F. 2d 325 (4th Cir. 1965) remanded 382 U. S.

103 (1965) -17n —

Goss v. Board of Education, 373 U. S. 683 — * i2n, 43n

Green v. County School Board of-the City of Roanoke,

304 F. 2d 118 (4th Cir. 1962) ...... 17

Griffin v. County School Board of Prince Edward

County, 377 U. S. 218 (1964) fe 27n, 30n

Hamm v. isin School Board of Arlington County,

* 264 F. 2d 945 (4th Cir. 1960) ‘ 16n-.

-Harrison-v. Day, 200 Va. 439, 106 S. E. 2d 636 ............ 16n

James v. Almond, 170 F. Supp. 331 (E.D. Va. 1959)... 16n

Jeffers v. Whitley, 309 F. 2d 621 (4th Cir., 1962) <.... 28n

Kelley v. Altheimer Arkansas Public School District,

378 F. 2d 483 (8th Cir., 1967) ... | 36, 46n °

Kelley v. Board of Education of the City of Nashville,

270 F. 2d.209 (6th Cir., 1959) -... .28n, 33n -

Kemp v. Beasley, 352 F. 2d 14 (8th Cir. 1965) ............ 36

Kemp v. Beasley,.— F..2d ——, No. 19017 (8th.

Cir. Jan. 9, 1968) : 37n, —

Lane v. Wilson, 307 U. S. 268 : ta

Louisiana v. United States, 380 U. 8. 145 ...... 38, 47

Manning v. Board of Public Initruction of Hillsboro 7

County, 277 F. 2d 370 (5th Cir., 1960) . 15n

Marsh v. County “School er of pee County,

Va., 305 F. 2d 94 (4th Cir., 1962) 17

‘Meme v. Jessamine County Board of Education, 8

Race Rel. L. Rep. 530 (E. D. Ky. 1963) ~49n

Monroe v. Board of Commissioners of the City of

Jackson, Tenn., 380 F. 2d 955 (6th Cir. 1967) cert.

' granted, No. 740 (O, T. 1967) | wwiscsec S, S3n

Moses .v. Washington Parish School Board, — FF

| Supp. am (2B. D. ke. Oot 10, 1067) 14n, 19, 49n

N. A. A.C. P. v. Patty, 159 F. Supp. 503 16n —

N. L. R. B. v. Newport’ News Shipbuilding and Dry .

Dock Co., 308 U. S. 241 ee 39

Northcross v. Board of Education of the pity of Mem- -

- phis, 302 F. 2d 818 (6th Cir., 1962) , 15n

Norwegian Nitrogen Products Co. v. United States,

288 U. S. 294 32n

;

Pettaway v. County School Board of Surry County,

Va., 230 F. Supp. 480 (E..D. Va. 1964), modified ;

and remanded, 339, F. 2d 486 (4th Cir.) -.... .- 17n.

° Porter v. Warner Holding Co.; 328 U. 8. 395 ......... - 38

Raney v. The Board of Education of the Gould School

District; 381 F. 2d 252 aa Cir. 1967), cert. granted, _—_—_::

No. 805 .......: be .....-13, 36n

_ Reitman v. Mulkey, 18 L. ‘ed. 831 ..... f... : 42n

-- Robinson v. Florida, 378 U. 8. 153 42n

Ragers: v. Paul, 382 U. 8. 198, hvigiesaesilaesncial 30n, 48n

Schine Chain Theatres v. United States, 334 U.S.110 38

School Board of City of Charlottesville v. Allen, 263

F. 2d 295 (4th Cir. 1959) oon xe 16n

eee eet “PAGE

Singleton v. Jackson Municipal Separate School Dis-

trict, 348 F. 2d 729 (5th Cir. 1965) ..... ... 35n

Singleton v. Jackson:Mumeipal Separate School Dis-

trict, 355 F. 2d 865 (5th Cir. 1966) 7 18n, 35n

Skidmore ¥. Swift & Co., 323 U. S. 134 32n

Sperry Gyroscope Co. Inc. v. NLRB, 129 F. - ae

931-932 (2d Cir. 1942) hiss 39

Swann v. Charlotte Mecklenburg Board of Education, . _

369 F. 2d 29 (4th Cir. 1966) ...... ee

‘ |

United States v. siiebvieiie Trucking —-

Inc.,; 310 U. S. 534 ............ 32n

United 2-aaadh v. Crescent Amusement Co., 323 U. S. :

173 - 8.

United States v. ‘County School Board m Prince

George County, Va., 221 F. uae 93, 105 (E. D.

Va. 1963) ... 17n

United States v. Jefferson County Board of Biiee- 7)

tion, 372 F. 2d 836, aff’d with modifications on re-. = >

_ hearing en bane, 380 F. 2d 385, cert. denied sub nom.

Caddo Parish’ School Board v. United States, 389

U. S. 840, 19 L. ed. 103 SED <acionicticsbindl 4n, 9, 18n, 33, 46n

United States v. sannere Oil Co., 221 U. Baton: ae

Vick v. Board es ‘Radecktion of Obion a 205 F. ;

Supp. 436 (W. D. Tenn. 1962) . | sovveceneceecnnvees 28n

Watson v. Memphis, 373 U. S. S86 ----.c---- . 27

—_,

STATUTES

| ; ' | PAGE

Code of Va., 1950 (1964 Replacément Vol.)

§22.232.1 | 6, 16n

§22.232.6: |

, $22.232.20 6

-45 C. F. R. Part 181 --22, 32n

Civil Rights Act of 1964, 78 Stat. 241 7 $)92n

28 U.S. C. §1331 , 3n

28 U. Si C. §1343 - a Li

42 U. S. C. §1981 2... ae 3n

42 U.S. C. §1983 3n

42 U. S. C. §2000-¢ 32n.

42 U.S. C. §2000-d

OTHER AUTHORITIES — >.

* Black, The Supreme Court, 1966 Term—Foreword: 4

“State Action,” Equal Protection and California’s

- Proposition 14, 81 Harv. L. Rev. 69 (1967) ........... — 42n

Campbell, Cunningham and McPhee, The Organiza-

tion and Control of American Schools, 19665 ....... -13n, 14n.

Conant, The American High. School Today (1959) ..

} Dunn, Title VI, The Guidelines ‘and School Desegre-

gation in the South, 53 Va b-Rev: 42 (1967) .......30n, 32n

Equality of Educational Opportunity: -A- Report

the. Office.of Education of the United States Depart-

ment of Health, Education and Welfare

21n

Meador, The coin Cation and the Assignment of *

Pupils to Public Schools, 45 Va. L. Rev. 517 (1959) ° 14

_ Mizell, The. South Has Genuflect ted and Held on to

Tokenism, pounern Education eport, Vol. 3, No.

6 . 7 a + 23n

Note, The Courts, HEW and Southern School Deseg-

regation, 7 Yale L. J. 321 (1967) .... 32n

Racial Isolation in the Publié~Sehools, Volume FF

‘A Report\of the United States Commission on Civil

Rights 1967 ........: 270

Revised Statement of Policies for School Desegrega-

tion Plans Under Title VI of the Civil Rights Act

of 1964 ..... 22

“" Southern a Desegregation, 1966-67, a Report

‘of the U. cs: cae on Civil Rights, July,

-. 1967 .. - : 15n, 24n, 26, 48n

“Survey of School PR in the Southern and —

‘Border States, 19§5-1966, U.S. Commission on Civil

Rights, February, 1966 ..... ...-16n, 18n, 24n

U.S. Bureau of the Census. U. 8. —_— of .Popula.

tion: 1960 General Population Characteristics, Vir-

ginta. Final Report PC Satta | Sn

a Pp

Iw THE

Supieme Cour of the Bnited States

OcToBER TERM, 1967 |

, No. 695 - al

Cuaries C. Green, ef al.,

: Petitioners,

—V.— '

. County Scxoon Boarp or New Kenr Counry,

| Virernqa, et all.

‘ ON WRIT OF CERTIORABI-TO THE UNITED STATES ~

COURT OF APPEALS FOR THE FOURTH CIRCUIT

as _

BRIEF FOR THE PETITIONERS —_-

y . Citations to Opinions Below

“**‘ The District Court filed memoranda opinions on May

17, 1966 and June 28, 1966. Both, unreported; are reprinted

appendix at pp. 47°48a and 53-61a. The June 12, 1967 Court

of Appeals opinions, reprinted appendix. PP. 63-89a, are

| — at 382 F. 24.326 and 338.

Sart. | 2 “Jurisdiciion

The judgment of: the Court of Appeals was entered |

June 12, 1967, appendix p. 90a. Mr. Justice Black, on

: September , 1967, extended time for filing the petition sd

writ of certiorari until October 10, 1967 (91a). The petition |

for certiorari was filed October 9, 1967 and was granted ©

- December 11, 1967 (92a). .The jurisdiction of this Court

is invoked under 28 U..S. C. Section 1254(1).

Question Presented P

Whether—13 years after Brown,v. Board of Education— -

a school board discharges its obligation to.conduct a unitary °

non-racial school system, \by adopting a freedom of choice

desegregation plan, where the evidence shows that such plan

- is not likely to disestablish the dual system and where

_ there are other methods, no more difficult to administer,

which would immediately produce substantial desegrega-

tion. 3 “

; " \ * 4 v ; ;

_ Constitutional Provision Involved AL

This « case ivetiven Section ] of the Fourteenth Amend-

- ment to the Constitution of the United States.

Statement

. Petitioners seek review of the constitutional adequacy

of a freedom of choice-desegregation: plan _ adopted . by

defendant School Board’ and approved by the Court below

en banc, Judges Sobeloff and Wigter disagreeing with the

-majority opinion. *

“i; The Pleadings

Petitioners, Negro parents ‘and children of New Kent

- County, Virginia, filed on March 15, 1965, in the United

- States District Court for the. Eastern District of Virginia,

“4

a class action seeking injunctive relief against the main-

tenance of separate schools for the races. The complaint

named as defendants the County School Board, its indi-

vidual members, and the Superintendent of Sehools.’

The defendants filed, on April 5, 1965, a Motion to Dis-

‘miss the complaint on the sole ground that it failed: to state

a claim upon. which retief could be granted (13a). In. an-

order enteréd on May 5, 1965, the district court ‘deferred

ruling on the motion and directed the defendants to file

an answer by June 1, 1965 (14a). Defendants answered as-

serting that plaintiffs were permitted under existing policy

(the pupil placement law) to attend the school of their ~

choice without regard to race, subject only to limitations:

of space and denied that the court had jurisdiction to grant —

., any of the relief prayed (21-22a).

‘Thereafter, to comply with Title Vi of the Civil Rights

Act of 1964, 78 Stat. 241, and regulations of the United

States Department of Health, Education and Welfare, the’

New Kent County School Board, on August 2, 1965, adopted

a freedom of choice desegregation plan (to be placed into —

effect in the 1966-67 school year) and on May 10, 1966 filed

copies thereof with the District Court.

* The action was filed pursuant to 28 U. S. C, §1331 and §1343,

and 42.U. S. C. §1981 and §1983. The complaint alleged that

(7-8a) : :

Notwithstanding the at and admonitions in Brown v.

* Board of Edeation, 347 U. S. 483 (1954) and 349 U. S. 294

(1955), the defendant school board maintains and operates a -

byracial school system. .

(that the defendants] ha[d] not devoted efforts toward initiat-

ing non-segregation in the publit school system, [and had failed

to make] a reasonable start to effectuate a transition to a

- racially non-discriminatory school system as aed paramount

law it [was] their duty todo. |

Il. The Plan Adopted by the Board

The pian provides essentially for “permissive transfers”

for 10 of the 12 grades. Only students ‘eligible to enter

grades one and eight are required to exercise a choice of

schools. It provides further that “any student in grades —

other than grades one and eight for whom a choice is not ob-

_tained will be assigned to the school he is now attending.” *

It states that no choice will be denied other than for over-

crowding in which case-students living nearest the school

chosen will be given preference, (34-40a).

—-<% By failing to require, at least. in its initial year, that every. stu-

dent make a choice, the plan permits some. students to be assigned

under the former dual assignment system until approximately 1973.

Under the plan students entering other than grades one.or eight

- who do not exercise a choice are assigned to the school they are

then attending. “Thus, a student, who began ‘school in fall, 1965,

-one year, before the plan went into effect and was therefore assigned

to a school previously. maintained for his race would, unless. he

affirmatively exercised-a choice to go elsewhere, be reassigned there

for the remainder of his elementary school years. Similarly, stu-

dents who entered high school prior to 1966-67 under the old dual .

assignment system, would, unless they took affirmative action to

transfer elsewhere, be reassigned : to that school until graduation.

The plan, then, permits some students (those who began at a school

‘before it went into-effect) to be reassigned for as long as up ‘to

seven years (in the case of a first grader) to schools to which‘they _

originally had been assigned on the basis of race. It need hardly

be said that such a plan—one which fails immediately to abolish

continued racial assignments or reassignments—may not stand

under Brown v. Board of Education, 347 U. S.-483 and 349 U. S.

_ 294. The Fifth Circuit has rejected plans having that effect. See .

United States v. Jefferson County Board of Education, 372 F. 2d

836, 890-891, aff'd with modifications on rehearing en. banc, 380 F.

2d 385, cert. ‘denied sub nom. Caddo Parish School Board v. United

States, 385 U. S. 840, 19 L. Ed. 24-103. We point this odt only to

fully describe the workings of the plan. For overturning the deci-

. sion below on this ground would be insufficient to protect petitioners’

rights. As we more fully develop later what is objectionable about

this plan is its.employment of free choice assignment provisions to

‘perpetuate segregation in an area, where, because of the lack of

residential segregation, it could not otherwise result. --

Il. The Evidence — 4,

- New Kent is a rural , RA in Easteri Virginia, east

of the City of Richmond. There is ho. residential segrega-

tion; both races are diffused generally throughout the

county® (cf. PX “A” and “B”; see also the opinion of .

Judge Sobeloff at pp. 72a, 23a).* There are only two public

schools in the county: New Kent, the formerly all-white

combined elementary and high school, and George W.

Watkins, an all-Negro combined elementary. gnd high school.

Students: During the 1964-1965 school year some 1291

students (approximately 739 Negroes, 552 whites). were

enrolled in the school system. There were no attendance

.. zones. Each school served the entire county. Eleven Negro

buses canvassed the entire county tc deliver 710 of the ,

740 Negro. pupils to Watkins, located ‘in the western half *s,

of the county. Ten buses transported almost all of the

- §50 white prvils to New Kent in the eastern half (see PX’

' “A” and “B” and 24a, no. 4). .

- As the following table® tabiseten: the Negré school was

- more overcrowded and had a substantially higher pupil-—

teacher ratio, and larger class sizes than the white school:

= .

_§ The Census reports .show. that the Negro population was sub- -

stantially the same in each of the four magisterial districts in New

Kent- County: Black Creek—479, Cumberland—637, St. Peters— |

633, and Weir Creek—565.: See U. S. Bureau of the Census. U. 8.

Census of Population: 1960 General Population Characteristics,

Virginia, Final Report PC(1)-48B.

* The prefix “PX” -refers to plaintiffs’ exhibits. Exhibits “A” and

“B” show the bus routes for each of the twe county schools. Because

of the difficulty in doing so, they have not beei reproduced. in the

’ appendix. Each exhibit shows the routes travelled by the various

buses. bringing children to that particular school. Each school is

served by buses that traverse all areas of the county. f -

5 The information that follows was obtained from defendants’ an-

_ Swers to plaintiffs’ interrogatories (23-33a).

1-g, and 4.

—

Variance .

| From <

-Pupil- Average Capacity - . Average

, Teacher Class . (Elem." ~ Number Pupils

*‘Name of Schodl Ratio Size Grades Buses Per Bus

New Kent

(white) 1-12... 22 21. + 37 (9%) (10 548

Geotge W. Watkins i :

(Negro) 1-12. 28 26 +118 (28%) ll 645

From 1956 through the 1965-66 school year, cial assign-

ments of New Kent pupils were governed by the Virginia

Pupil Placement Act, §22-232.1 et seg. Code of Virginia,

1950 (1964 Replacement Volume), repealed by \Acts of

Assembly, 1966, c. 590, under which any pupil could request

assignment to any school in the county; children making no

request were ee to the school previously maintained -

for their .race.’. The free choice plan the Board adopted

in August, 1965 was not placed into effect until the 1966-

ce 1967 school year by which time it had been — by the

district cout.

.Despite their rights itt the pupil. silane procedure, :

up to and including the 1964-1965 school. year no Negro

pupil ever sought admission to New Kent and no white.“ ,

° Section, 22-232. 20 provided i in part:

Fos ee child who wishes to attend a school other than the

school which he attended the previous year shall not be eligible

for er in a particular School unless application is a tance

therefor .

Section 99.939. 6 provided:

_ “After December 29, 1956;éach school ebilla whe hes heretafere

attended a public ‘School and who has not moved from the ©

county, city or town in which he resided while attending such:

school shall attend the same school which he last attended until

graduation therefrom unless enrolled -for good cause shown, in

_a different school by the Pupil Placement Board.”

pupil ever sought admission to Watkins (25a, no..7). Al- ‘

though, as the fellowing table shows, some Negro students

«have since chosen to attend New Kent, no white pupil has

ever attended Watkins; Pa

cm hae (SruvENt Boy BY Race*® ;

YEAR ‘ New KENT WarTkINS

_. White’ Negro Other White Negro Other

¥1964-65 552 0 oO 0 739. 0

1965-66 @ 555 35 0 a

1966-67 ___...... 517 111 0 0 628 0

1967-68 ____.__ -o9 115. 16 _ 0. 621 0

eel

. Thus, as late as 13 years after the decision in Brown,

| 85% of Negro students i in the county attend school only ©

with other Negroes.

Faculty: Teachers’ contracts are for one year only. Until

the 1966-67 school year, the Board adhered to a policy: of

assigning only white teachers to New Kent and only Negro

teachers to Watkins. Despite the declarations of the Board,

its policy has remained essentially unchanged as the fol-

lowing table shows: : tae

i :Facuuttry COMPOSITION BY Race®

New KENT ' - WaTKINS

White Negro White Negro

1964-65 —.._... a. 0 " *o- &

1965-66.-_.......... 26 _ 0 27

EE emactates 28.4 4 27

ne, 2

® The record in this case, like the records in all school desegrega-

tion cases, is necessarily stale by the time it reaches this.Court. In

this case the 1964-65 school year was the last year for which the

record supplied desegregation statistics. Information regarding stu-_

dent and faculty desegregation’ during the 1965-66, 1966-67 and —

1967-68 school years was-obtained from official documents, available

for public inspection, maintained by the United States Department

of Health, Education and Welfare. Certified copies thereof and an

accompanying affidavit have been filed with this Court and served

upon Opposing counsel.

* This-i#formation is taken from the HEW documents referred

to in Note 8, supra, and from number 1-f on 24a. Principals, i

brarians and ‘other non-teaching personnel are > not included.

a ad -

is y .

- sum, daring the current year, 1967-68, faculty in-

tegration consists of the assignment of one full-time white

‘(of a total of 30.8 teachers) to Watkins and one part-time

(the equivalent of one day each week) Negro teacher to ©

New Kent. All the full-time teachers at that school are

still white. | a

IV. . The District ‘Court’s Decision

On May 4, 1966, the case was tried before the District

Judge, Hon. John D. Butzner, J¥., who, on May 17, 1966,

entered a ‘memorandum ogtaiais and order: ian decane

defendants” motion to dismiss, and (b) deferring approval

of the plan pending the filing by the-defendants of “an

amendment to the plan [which would provide] for em-

ployment and assignment of staff on a non-racial basis”

- (47A9a). | | |

The Board filed on June 6, 1966, a. ‘supplement to its

plan dealing with school faculties (50a). On June 10, 1966,

plaintiffs filed exceptions to,,the supplement contending

(a) that the supplement failed to provide sufficiently for

faculty and. staff desegregation, and (b) that plaintiffs

would continue to be denied constitutional rights under

the freedom of choice plan and that the defendants should

be required to assign students pursuant to geographic

attendance areas (52a).

‘ On June 28, 1966, the district court entened a memo- .

randum opinion and an order approving the fre reedom of

- choice plan as amended (53-62a), ‘.

-.V. The Court of Appeals’ Opinion

p On appeal to the Court of Appeals for the Fourth Cir- .

cuit petitioners contended that in view of the circum-

stances in the county, the.freedonr of choice plan adopted

by the defendants was the method least likely to accomplish

-desegregation and that the cae court erred in ap-

proving it.

On June 12; 1967, the Court, en banc, eltineed the dis-

trict court’s approval of the freedom of choice assign-

‘ment provisions of .the plan, but remanded the case for

entry of an order. regarding faculty “which is much more

specific and more comprehensive” and which would in-

corporate in addition to a “minimal objective time. table,”

some of the faculty provisions of the decree entered by

the Fifth Circuit in United States v. Jefferson County «

Board of Education, supra (70-71a}.

J udges Subeloft - and Winter concurred utility with

respect. to the remand on the teacher issue but disagreed — |

on other aspects. Said Judge Sobeloff (71- 72a) : 10°

I think that the District Court should be directed not

only to incorporate an objective time table in the’

School Board’s plans for faculty desegregation, but

also to set up procedures for periodically evaluating

the effectiveness of the Boards’ “freedom-of-choice”.

plans in the elimination of other features of a segre-

gated school system. |

7 . * 6

. .-, Sinee the Board’s “Freedom-of-choice” plan has

now been in effect for two years as to grades 1, 2,

8, 9, 10, 11 and 12 and one year as to all other grades, |.

10 This case was decided together with a companion case Bowman —

Xv. County School Board of Charles City County, Vixginia, No.

10793, for which no review is sought. While the opinion discussed

herein was rendered in the Charles City case, it was expressly made

applicable to New Kent (64a) ; similarly J udge Sobeloff stated that

his opinion in Charles City applied to New Kent (p. — The

opinion in.the Charles City tase is . 65-89a.

- clearly this court’s remand should embrace an order

requiring an evaluation of the success of the plan’s

operation over that time span, not only as to faculty

but as to pupil —— as well (73a).

While they did not old, as petitioner’ had nk that the

constitutionally unacceptable as a tool for desegregation

they recognized that it was utilized to maintain segregation

(76-77a) : a he

As it is, the plans manifestly werpebintte Gettin.

tion. In view of the.situation found in .New Kent

County, where there is no residential segregation, the

- elimination of the dual school system and the establish-

ment of a “unitary, non-racial system” could be readily —

achieved ‘with a minimum of administrative difficulty

by means of geographic zoning—siyply by assigning

students living~in the eastern | of the county to

the New Kent School and those living in the western

half of the county to the Watkins School. “Although a

geographical formula is not universally appropriate,

it is evident that here the Board, by. separately busing

Negro children across the entire county to the “Negro”

school, and the white children to the “white” school, is

deliberately maintaining a segregated system which

would vanish with non-racial geographic zoning. The

conditions in this county represent a classical case for

this expedient. ° (Emphasis added.)

While the majority implied that freedom of choice was

acceptable regardless of ea Judges Sobeloff and Winter

stated the test thus io :

“Freedom of choice” is not a sacred talisman; it is only

- @ means to a constitutionally required end—the aboli- .

tion of the system of segregation and its effects. If

the means. prove effective, it is acceptable, but if it

fails to undo .segregation, other means must be used |

to gomhie this. end. .

Sue” — OF ARGUMENT ee

Brown condemne not. only. compulsory racial ‘assign-. |

ments of publie school children, but required “a transitién

_ to a racially non-discriminatory system.” That goal is not

achieved if some schools are still maintained or identifiabl

_ as being far Negroes and others for whites. It cannot be

‘achieved until the racial identification of schools, con-

sciously imposed by the state during the era of enforced

segregation, has been erased. The specific direction in

Brown II and general equitable principles require that

school districts formerly segregated by law, employ af-

firmative action to achieve this end.

| , a;

If the time for deliberate speed has indeed ended, as this

Court /has said: (Note 38, infra), lower. courts must now -

fashion decrees which, consistent with educational and

equitable principles, will speedily and effectively disestab-

lish the dual system thereby achieving the unitary non-

racial system mandated .by the —— That was not °

~ done here. ‘

Freedom of choice Gesnatenntion plans typically leave the

dual system undisturbed. The overwhelming majority of

school districts in Brown-affected states have adopted

such plans (Note 18, infra) and available statistics demon-

strate that they have not disestablished the dual. system

(infra, pp. 26-27). At best, such plans leave one segment, -

the Negro segment, intact (Jbid.). Yet, most, but not all,

lower courts have not responded to the obvious: such plans» a

are not only wasteful and inefficient, but by. nafure are’in-

capable of effectuating that transition.

_ Lengthy related experience under the Virginia Pupil

Placement Law demonstrated that plans under which stu-.

dents assign themselves. were not likely to disestablish the

dual system in New Kent County. Petitioners, moreover,

furnished uncontradicted evidence that’ another method,

more feasible to administer would immediately disestab-

lish the dual system. Nonetheless, the Board failed to offer

any reasons justifying delay in achieving a unitary non-

racial system. There was no suggestion that administra-

tive difficulties would preclude the division of the county

* into two school attendance areas or the assignment. of

elementary school®pupils to one school and high school

students to the other.

_ Where alternative means of immediate accomplish-

_ ment of a unitary non-racial school system are so readily

available, judicial approval of free choice is constitution-

ally impermissible.

—

| -lish the dual systems.

ARGUMENT

Introduction ree

The question here is whether in the late sixties, a full

generation of public school children after Brown v. Board

of Education," school boards may ‘employ so-called free-

dom of choice desegregation plans which perpetuate ra-

. cially identifiable schools, where other methods, equally or

more feasible to administer,” will more speedily disestab-"

‘ adopted, are under review in Monroe v. Board of Com-

missioners. of the Rity of Jackson, Tenn., No. 740, and

_ Raney v. The Board of Education of the Gould School

District, No. 805.** The controversies in all three cases

‘concern the precise point at which a school board has ful-

filled its: obligations under Brown; and all three present

- for determinationgthe question whether school districts for-.

merly segregated by law must employ affirmative action

to erase state-imposed racial identification of their schools.

The most marked and widespread. innovation in school

administration in southern - and border’states in the last.

fifty years has been the change i in pupil assignment method

in the years since Brown,* from geographic. attendance

11 347 U.S. 483 (Brown 1) ; 349 ‘U.S. 294 (Brown II).

"12 All three cases will be argued — See 36 U.S. L. W. 3286

(U.S. Jan. 15, 1968).

13 See generally, Campbell, hai and McPhee, The Or-

ganization and Control of American Schools, 1965. (“As a conse-

‘quence of [Brown v. Board of Education, supra], the question of at-

tendance areas has become one of the mdst significant issues in

American education of this er (at 136).)

sealant landmark decisions construing the Pourteusth

Amendment. Striking down a_ statute. “excluding:

‘Negroes from service on juries, the Court there

observed (100 U.S: at 308) :

The very fact that colored. people | are singled |

out ‘and expressly denied by a statute all right

to participate in the administration of the law, .

' as-jurors, because of their color, though they —

-* are citizens, and may be in other’ respects fully :

qualified, is practically a brand upon them, .

affixed by the law, an assertion of their inferi-

ority, and a stimulant to that race prejudice. _.

. which is an impediment to securing to indi-

-* viduals of the race that equal justice which |

the ‘law aims to secure to dll others.

_ The Brown opinion merely returned to this authentic

| -interpretation-of the Amendment when it noted (ap-

provingly quoting one of the lower courts, 347 U.S. .

at 494) : ‘Segregation of white and colored children

_in. public schools has a detrimental effect upon the

. colored: children. The. impact: is greater when it has

the sanction of the law; for the policy of separating .

_ the races is usually interpreted as denoting the in-

feriority of the negro group. 9, Be p-

The principle is not limited to situations in which

the State teaches a philosophy of racial inferiority by

expressly compelling segregation. The same message

‘ can be conveyed by lesser measures and they aré

equally forbidden. . £.g., Lombard v.. Loutsiana; 373

U.S 267; Robinson v. Florida, 378 U.S. 153. Indeed, in

some contexts, the Equal Protection Clause prohibits

official action which merely facilitates, or gives effect

to, private discrimination on the ground of race. F.9.,

& ye ’ | 15

i. | ‘

Anderson v. Martin, 375 U.S. 399; McCabe v. Atchi- .

son, Topeka & Santa Fe Railway Co., 235 US.151; ~

Shelley v. Kraemer, 334 U.S. J. And see Rettman v.

- Miulkey, 387 U.S. 369. The State cannot gratuitously -

take steps to: make discrimination easy; the Four-

teenth Amendment bars State actién which unnetes-

sarily creates opportunities for the play of private

prejudice. So, here, we submit, the State authorities

overstepped the constitutional line, by adopting stu-—

dent assignment plans which predictably, if not de- .

signedly, ‘eater to the preference of white students to

avoid desegregated schools.

| a

_ +» It remains to suggest the appropriate remedy in

each of the cases before the Court. As we have noted,

the central fact in all three school. districts involved is

that an. “Overwhelming majority of the Negro student,

plans a ow the white students who waa otherwise -.

attend those schools to assign themselves elsewhere. :

. That result condemns the freedom-of-choice assignment

system. in-éach of the cases, in light of The availability

of other more promising alternatives.

We need not particularize the details of an appro-

priate plan for each district. But it is apparent that

_in both New Kent, Virginia (No. 695) and Gould, Ar-

_ kansas*(No. 805), each of which have only two hooks,

a substantial degree of desegregation would be

achieved if geographical zoning were adopted, And, |

of course, full desegregation would result if the two.

eee eee oon Se Rete BN TRG NR) FS BT Net ee

Ps . eS :

= 4 Minéitliisilys niceties:

_ _educationally and nothing in the record suggests that.

either alternative presents — apertal administrative -

- 16

schools in-each district were “paired”, one as the. ele-

mentary school for the entire area, the other as the

secondary school. Either solution is pfesumably sound

problems. , | |

The J ackson, Tennessee, situation (No. 740) is more

"complex, but the availability of alternate solutions is

equally clear. In this district, geographic attendance

zones are already in opération and the obvious first

step therefore seems to be to eliminate the super-

imposed ‘“‘free transfer” provision of the plan which

has worked to preserve as all-Negro each of the for-

merly Negro elementary schools, the formerly Negro

junior high school, and the formerly Negro high —

school. There remains, however, a challenge to the |

three junior high school zones as “gerrymandered.”’ °

On the face of the record, the charge of gerryman-

" dering is well founded, Indeed, it appears that sub-

stantially greater desegregation at the junior high

school level would have resulted if the elementary

zone lines had been followed ‘to create a feeder system.

No explanation was offered for the deviations from

this ‘traditional plan. Moreover, it is demonstrable

disadvantages—can be ‘drawn to achieve still more de-

- segregation in the three schools involved. Quite plainly, —

the school authorities made no effort in this direction.

‘In our view, they should he directed—subject, of

course, to the supervision of -the district court—to

- SA challenge to the elementary school zones was sustained.

by the district court and is not in issue here.

Rete 17

_ redraw the junior high school zones with this ites ah

in view. 4

_-Respettiully submitted.

, RWIN N. GRISWOLD,

‘Solicitor General.

_ STEPHEN J. PoLak,,

| Assistant Attorney General.

Louis F. CLAIBORNE, ,

LaWRENCE G. WALLACE,

Assistants to the Solicitor

3 aa General. . °

Brian K.° LANDSBERG, |

Attorney.

FEBRUARY 1968. bees

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uos. GevERN INTING OFFICE: 1968 -

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