# Petition for a Writ of Certiorari — United States v. Scotland Neck City Bd. of Ed. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0052%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for a Writ of Certiorari - **Published:** January 1, 1972 - **Citation:** 407 U.S. 484 ## Text ‘2 Opinions below_____________!_____--___-_---- . Jurisdiction. ______________.-_.-_-_-_-_-_-_--- Question presented____________1________-____-- ; Constitutional and statutory provisions involved __| Statement________-_____.___ 2 et ee Reasons for granting the writ_______- Seelecoche Conclusion_________1_________1-_--2_---_-_--- Appendix A_____________________- eee Appendix B_.._~ 2. -------2--4+ sepa ee eee se Appendix C.___."_-_-___- eee eee eee ee Appendix D_____--______-__________- eee Appendix E______-_________- pe oe ee Appendix F________.________- ee Veedeutocu ce : Appendix G____-___-__-___- bee eae Appendix Ble eae aaa a CITATIONS | Cases: A — v. County Board of Education, 396 UB. 19. ee Aytch and United States v. Mitchell, C.A. ‘No. , PB 70-C-127, E.D. Ark., decided January UD LO Eo ee ee Brown v. Board of Education, 347 U.S. 433__ Brown v. Board of Education, 349 U.S. 294. - Buchanan v. Warley, 245 U.S. 60. ___-_-_-_- Burleson v. County Board of Election Com- missioners of Jefferson County, 308 F. Supp. — _ 352, affirmed 432 F. 2d 1356___._-_______- Cooper v. Aaron, 358 U.S. 1____- es — Green v. School Board of Ni ew Kent County, 391 US. 480.__----------2---1------------ Hawkins v. Town of Shae, No. 29013; C. A. 5,: decided January 28, 1971___________-___- Heart of Atlanta Motel v. United States, 379 aa Cais Orntned- > , '. Hunter v. Erickson, 393 US. 385____- a Jackson v. Godwin, 400 F. 2d 529______-_ lee Kennedy Park Homes Association, Inc. and United States v. City of Lackawanna, 436 F. 2d 108, certiorari denied April 5, 1971, No. - 4819, Oct. kas ae (| epee - ? Loving v. Virginia, 388 U.S. 1... ae os ' - McLaughlin v: Florida, 579 US. 18¢_ (2-2-2 Smith v. Texas, 311 U. $128... Swann v. Board of Education, No. 281, Oct. Term, 1970, decided April 20, 1971 __------- | Turner'v. Warren County Board of Education, C.A. No. 1482, E.D. N.C., affirmed sub nom.’ . Turner v. Littleton-Lake Gaston School Dis- ° trict, No. 14,990 C. A. 4, ‘decided March 23, VOT. oni cence edeeeenncesenltl._. United States v. State of Texas; 321 F, Supp. 1043, appeal pending, C.A. 5, No. 71-1061. - Wright.v. Council of the City of Emporia, No. id, 552, C.A. 4, decided March 23, 1971__- Wright v. City of Brighton,. Alabama, No. » 29,262, C.A. 5,- decided March 16, 1971__- Constitution and statutes: | United States” . Constitution, Fourteenth — Civil Rights Act of 1964, Section 407, 42 -28- U.S.C. 2000c-6__-_____-- eliotn 2, 3, 5, 99 5 , 28 U.S.C. 1845________________.___--_---- 1969 Session Laws of North Carolina, Chapter | a cs 2, 3, 4, 5, 6, 101 ai he Saye Court of the Binited Sites _ OcToser TERM, ‘1972 i, ; . N o—— UNITED STATES OF AMERICA, PETITIONER ScorLanp Neck City Boarp oF EDUCATION, ET AL. 9 PETITION FOR A WRIT OF CERTIORARI TO THE UNITED _ STATES COURT OF APPEALS FOR THB FOURTH CIROUIT The - Solicitor. General, on behalf -of the United States, petitions for a writ of certiorari to review the , judgment of the United States Court of Appeals for . - the Fourth Circuit in this case. | . | _ OPINIONS BELOW © . The opinion of the court of appeals’ sitting en banc | (App. A, infra, pp. 1a-18a) and the dissenting opin- ~~ ions (App. B, infra, pp. 27a-43a and pp. oe are ~ not yet reported. The opinion and order of the district court entered on motion for preliminary injunction (App. C, infra, pp. 56a-61a) are not reported ; the opinion and order on permanent injunction (App. D, infra, Pp. = are a at 314 F. Supp. 65 | _ JURISDICTION. The. judgment of ‘the court of appeals (App. EK, | infra, P. 9la) was entered on March 23, 1971. The “q) Co 2 jurisdiction of this Court is invoked ‘indies 28 U. S. C. 1254(1). . | QUESTION PRESENTED | Whether the court of appeals erred in holding that a State may split desegregating school districts into . - multiple districts, even if the. establishment of a unitary system is thereby impaired, unless the “pri- mary purpose’’ of the split is to retain as much sepa- ’ ration of the TACes as possible. | CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED = | Section 1 of the Fourteenth Amendment to the Con- stitution of the United States provides as follows: | | All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the’ United States and of the State wherein they reside. No State shall make . or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within . its jurisdiction “the equal protection of the laws, _ - Section 407 of the Civil Rights Act of 1964, 42 U.S.C. 2000c-6, is set out in a G, infra, p " Chapter 31 of ‘the 1969 Session Laws. of N orth | Carolina, is set.out in. Appendix H, infra, p. _ . STATEMENT Scotlapd | Neck, North Carolina, is a town with a population of approximately 3000 located in the. southeastern portion of Halifax County. The schools 3 in Scotland Neck have been’ operated as part of the Halifax. County Administrative Unit since 1936. _ Halifax County ran -a completely segregated dual - school systeyn until 1965, when it, adopted a freedom- | of-choice desegregation plan (App. A 8a).. Little -in- _ tegration followed (tbid.). After this Court’s decision ‘in 1968 in. Green v. School Board of New Kent County, 391 U.S. 430, the Department of J ‘ustice, pur-— suant to 42 U.S.C. 2000c-6, informed the Halifax County Board that the operation of its schools did not comply with constitutional requirements. Negotia-_ tions with the Board resulted in a plan to disestablish the county’s dual school system by the beginning of - the 1969-70’ school year. Interim steps ‘were to be _ taken in 1968-69.” (App. A 9a.) The plan and interim | steps were given wide local publicity (App. D 67a). Asa result of renewed efforts by citizens of Scot- |. land Neck a number of months after the Green ~ decision, a local law, Chapter 31, 1969 Session Laws of North Carolina’ (App. H 101a). was enacted by ‘the North Carolina General Assembly on March 3, _ 1969.’ Chapter 31 provided for a new school district ~ bounded. by the city limits of Scotland Neck, and for. a supplémental tax. assessment upon approval by a majority of the city’s voters. ‘The voters registered , One an step was the Sonbining of the 7th and 8th grades of the previously all-black Brawley school, located near the’ city limits of Scotland Neck, with the all-white junior high school in the city (App. D 67a-68a). - 2 ¥arlier unsuccessful attempts had been madé by the citizens - of Scotland Neck to have a law similar to Chapter 31 passed. a App. D-69a). Pa ° 4 . their ice in a anal election on ee 8 1969, and some preliminary steps were taken so that the - newly-created school district—Scotland Neck City Administrative Unit—could start operation at the beginning of the 1969-70 school year (App. D 72a, 73a). | Shortly thereafter, the Halifax County Board de- . eided. not to carry out the previously adopted Seneater _ gation plan (App. A 9a). ‘Chapter 31’s implementation would have eaaihed 3 in. earving out of the Halifax County system, which had a- student population of 10, 655, a smaller school district ‘of 695 students. The predominantly black county. . system consisted of 22 percent white students, 77 per- cent black, and 1 percent Indian; by coraparison, the new, smaller district would have consisted of 57.4 percent white students and 42.6 percent black. (App. D 14a-15a). By the. removal of Scotland Neck from the larger rural area its ‘schools had traditionally served, the number of white children in schools in that area would have been reduced by almost one half (from — 804 to 405) and the number of black children would ‘have ‘changed from 3,095 to 2, 799. The County system _.as a whole would then have had 9,960 students, 19 percent of whom would have been white, 80 percent. ~ black and 1 percent Indian. (App ‘A 14a). Since the planned Scotland Neck schools. could - accommodate 1 000 students,’ but would have had 695 . *The schools in Scotland. N ele were ingdeijlat to accom- - modate even the original 695. students; the City .therefore — purchased from the County a junior high school hocatail outside the City’s boundaries (App. B52a). 3 pupils when Chapter 31, was implemented, the’ City _and the County agreed to a plan allowing County students to. transfer into the Scotland Neck* system - for a fee (App. D 74a)..By August 25, 1969, 350 white and 10 black students had applied to transfer into . Scotlarid Neck, and -44 black: students had: applied to — \ _ transfer out. The combined effect 6f Chapter 31.and =. the transfer plan would have been a.Scotland Neck : system of 1,011 students, 74 percent white and 26 percent black, a Halifax: County system of 9,644 - students, .17 percent’ white, 82 percent black and 1 percent Indidn, and. virtually all- black ‘enrollment in the. ruralarea immediately mene Scotland Neck? \ 1. The decisions of the district court. ‘The govern: ment’s complaint i in this action, filed on J une 16, 1969, \ ° . .under Seetion 407 of the Civil Rights Act of 1964; 42 U.S.C. 2000c-6, and 28 U.S.C. 1345, sought an - order to desegregate the Halifax County school sys- tem. and:an injunction against the implementation of Chapter 31: After a hearing on the government’s motion for a preliminary. injunction, the district court, on August 25, 1969, enjoined the Scotland Neck City © - - Board of Education from carrying out Chapter 31. pending a hearing on the merits (App C568): ia —_—— _ ‘In its. amended answer to the governrient’s complaint, the. - School Board ‘withdrew the transfer plan and informed the district court that it intended to allow only such transfers as — “may be in conformity to the law and/or Court order: or orders applicable to Defendant, and in conformity to ‘a plan of limitation of transfers to be prepared by Defendant and _ submitted to this Court.” (App. A n. 4, p. 182.) See, also, App. B52a (Winter, J., dissenting). aS ESAT SN 9 SN PNT TE TSAR ERIN WAC as fe \ On, Deciguber WW and ‘48, 4969, there was-a con- | ‘solidated trial on the. inerits ef the instant case and °: Rec ve Warren County Board of Education (C.A. Na. 1482, ED. N.€.);° which, presented similar. ques- : tions.° The district court: entered its judgment on May . 26, 1970, finding that yy signific ant factor. in the 7 énactment. of Chapter 31. was a desire to preserve a ratio” of ‘black to: white stidents 1 that w ould ‘be accept-. ° | ~ able. to ‘white parents and thereby encourage them ys “not Sto take their. children. out of the publié school 3 _ system, (App: D 62a.) Fusther, the district court’ - found that the effect of Chapter 31 was to create a’ : refuge: for: white Studenits . in- Halifax: County that , - interfere with’ the’ ‘desegregation. of ‘Halifax. County wee Schools and prevented the County Board.of Education ie from complying With court orders. (App. D 89a). The. \* cor rt also found that Chapter 31 served no state mter-; 7 a st! and, therefore, concluded. that the. Act ‘was un-... eon ‘titutional. at its oper ation! show be enjoined | (id. at 90a). : “it The ddbisien or the court. of oppeaie On appeal ~ Aye Scotland Neck City Board of Education and The “The Turner case. involved the carv ing out of two Sepi arate city administrative units from a-county system; the order and’ Opinion enjoining such action was affiymed sub nom. Turner. vy. - . ». Littleton-Lake Gaston School District, CA: 4, decided March 23," 1971 (App. F 92a). . | ee _> *Fhe district. court’ permitted intervention by.. the. Attorney . _ General of. North Carolina, certain: Haliwa ‘Indians, and certain | _ _ ~ black teacher’ inthe Halifax County system (App. D68an.1). aes “Two other - significant factors found by the court «were ‘a — . _ desire for more lacal ‘control and: a desire to increase the 7 Se oe for the. Scotland Neck schools. aCe re Ae ; g :S SN: : . aa te : the Attorney General of N orth .Carolina, the court of appeals sitting. en banc* reversed (App. A la), with Judges Sobeloff and Winter dissenting (App. ' B 27a, 44a). The court held that Chapter 31 did not _ interfere with the desegregation, of the Halifax County schoals, that it did, not create a ‘white refuge, and, following the rule formulated. in Wright v. Council of the City of Emporia (No. 14,552), decided by the court on the same day,’ that-two non-racial justifica- tions’ adequately explain the splitting-off of Seotlarid — Neck, even ‘assuming that a more even racial balance “would be more effective in creating a unitary system in Halifax County (App. A 17a). The proposed trans- fer plan .was “enjoined, however, on the ground that © it would tend to 1 resegregate the school - systems we ~~" ‘ REASONS FOR GRANTTNe THE WRIT . / As the court of appeals hasrved 3 in Emporia, supra, “There is serious danger that the creation of: new school distriéts may prove to be yet another method to. S After argument on September 16, 1970, wee a sai of three judges, the case was reargued before the court en banc on December 7, 1970, along with the appeal in Littleton- Lake * Gaston, supra. °Three cases, Scotland Neck, ‘Ee mporia, and Littleton-Lake Gaston,. involving basically the same issues, were decided by _ the ‘court of appeals on the same-date. The rule of law formu- Inted by the majority is. most fully set out in Emporia, and the dissents in the present case’ are appended to that opinion. The decisions in Emporia and in Littleton-Lake Gaston are contained, respectively, in Appendices B and F, infra. © A motion by the United States for a stay of the court of appeals’. mandate in the present . case pending application for ‘certiorari is pending i in the court of Ba reas : lls a SRS EP mee ee . . : ° APS PEPPER RE PER SW C7 RR Rep tem tt of pera ote e . ’ | 8 obstruct the transition from racially separated ‘school systems to school systems in which no child is denied the right to attend a school on the basis of ra¢e” (App. B 2la. Cf. Swann v. Board of Education, No. 281, . this Term, decided April 20, 1971, slip op. at 9. This “ease raises significant questions with respect to seced- | ing school districts and the requirements of the Four- teenth Amendment. The court of appeals here applied the test it formu- lated i in the Emporia case (App..B 21a): If the creation of a new school district is de- signed to. further the aim of providing qiMlity education and is attended secondarily by a modi- ‘fication of the racial balance, short of resegre- - gation, the federal courts should not interfere. If, however, the primary purpose for creating. a new ‘school district is to retain as much of _ separation of the races as possible, the state has violated: its affirmative constitutional ary to end state supported aseregn This ‘‘primary purpose’’ test is, we submit, seri- ously inadéquate for fulfillment of the mandate of the. Fourteenth Amendment and at variance with the de-: . cisions of this Court. It encourages whites in sthool districts having a substantial black student popula- tion to carve out as independent districts areas that - are predominantly white and, in so doing, to mask the true purpose by devising other justifications. Compare * Cooper v. Aaron, 358 U.S. 1, 17. The dissenting judges in the court of appeals covrectiy observed that under - the majérity’s test the constitutional mandate will be _ easily avoided (App. B 30a, 45a—46a).. | « 9 In holding that “[s]eparate educational facilities are ‘inherently unequal,’ Brown v. Board of Education, _ 347 U.S. 483,.495, this Court did not distinguish be- tween racial segregation with a 40 percent racial pur- pose and racial segregation with a 60 percent racial purpose. Indeed, however innocent its motives, a state may not simply ignore the racial consequences of its _ actions, for it has long been settled that “[w]hat the Fourteenth Amendment prohibits is racial dis- crimination * * * whether accomplished ingeniously — or ingenuously * * *”. Smith v. Teras, 311 US. 128, _ 132. See Cooper v. Aaron, 358 U.S. 1, 17. Accordingly, when the state’ s action produces racial segregation in the public schools, the ‘courts must consider its constitutionality in light of . the set- ting of the Act (for example, whether it took place in _ the ‘historical setting of state-imposed segregation), the available alternatives (whether the Act’s legiti- mate objectives could be accomplished by means hav- ing a less adverse racial impact), and the magnitude of the state’s interest in pursuing the particular. course of action. See, e.g., Green v. School Board of N ew Kent County, 391 U.S. 430; compare McLaughlin v. Florida, 379 U.S. 184; Loving v. Virginia, 388 U.S. 1. When, as here, a dual school system is created by the “simple expedient of labeling the two sets of _ schools as separate districts’’*"—one with a 57:43 _ white to black ratio, the other with a 19: 80 ratio—that . is, when the state’s action impedes full realization of "41, Judge Sobeloff, dissenting (App. B 36a). | ~y 11. Indeed, the court below has adopted a metliod of. - analysis of secessions from desegregating school sys-— tems which’ is at variance with the decision ‘of the Eighth Circuit in the Burleson case, supra. In that case, the district court had enjoined the secession of _ the Hardin area (predominantly white) from the Dollarway School District in -Arkansas. (55 percent white and 45 percent black) because it would inter- fere with. implementation of the approved desegre- gation plan-for Dollarway. The Eighth Circuit af- County: (including Oxford). firmed per curiam based on the ppmaion of the district court.’*. | ‘The standard saaptet by. the court. below also de- ~ parts from the test. applied by both the Second and 13 Several cases. ‘pending. in other courts of appeals also pre- sent quite similar issues. In United States v. Jefferson County | Board of Education (No. 30,387, C.A. 5, docketed August 21, 1970), the issue is whether the city of Pleasant Grove, Ala- bama, can séparate itself from the Jefferson County school sys- tem where the separation.would adversely affect iniplementa- tion of a previously approved desegregation plan for Jefferson County. In Aytch ‘and Uviited. States v. Mitchell, et al. (C.A. No. PB 70-C-127, E.D. Ark., decided January 15, 1971), the - district court enjoined the holding of an election to divide the Watson Chapel School District: The defendants filed a notice — of appeal on February 19, 1971. Likewise, in United States v. State of Texas, 321 F. Supp. 1043. (E.D. Tex. 1970), ‘appeal pending (No. 71-1061, C.A. 5, docketed January 12, 1971), the district court found racial discrimination. in the transfer of white ‘residential areas from a predominantly. black to a predominantly white school. system. In Lee and United States, et al. ¥. Calhoun*County Board of -Education, et al.. (No. .30,154, C.A. 5, docketed July 1970), the district court treated the Calhoun County schoo] system-and the newly formed Oxford City school system as one for purposes of rul- ing on the sufficiency of a desegregation .plan for Calhoun —, Bea RPE Y an EET ETRE NS aot RI OS Ratey PE 8 i is 5 ’ ® * AOR ny kee PNT ese EMR p eer _ 12 the Fifth Circuits in cases involving racially discrim- inatory state action in other areas: In those cases the courts properly held that where action by a state -agency has a racially discriminatory effect the action - can be justified only by a “compelling state interest.” Kennedy Park Homes Association, Inc. and Umted | - States v. City of Lackawanna, 436: F. 2d 108 (C.A. 2), certiorari denied April 5, 1971, No. 1319, this Term; Jackson v. Godwin, 400 F. 2d 529 (C.A. Dd); Hawkins v. . Town of Shaw, No. 29,013, C-A. 5, decided January 28, 1971) ; : Wright v. The City of Brighton, Alabama, No. ‘29,262, C.A. 5, decided March 16, 1971. - Here both courts below agreed that. at least one purpose for the realignment of the school districts was racial and the undeniable effect would be to create a “more white” school or schools from which: the vast | majority of black students in the Halifax County sys- tem would be effectively excluded. In these. cirecum- _ stances, the State’s showing of additional, non-racial purposes fell far short of the requisite compelling © : justification for such a result, and the judgment of the | _ district court enjoining the realignment should have — been affirmed. . 2B ‘CONCLUSION For the foregoing reasons, the petition for a writ | of certiorari should be granted. aoe, submitted. , Hawi N. GRISWOLD, a : -. Solicitor General. - JERRIS LEONARD, : (8 & Assistant ‘Attorney General. LAWRENCE G. WALLACE, _ | - Deputy Solicitor General. ° A. RAYMOND RANDOLPH, Jr., Assistant to the Solicitor General. Brian ‘K. LANDSBERG, - THomas M. KEELING, 2 2 = So Attorneys. Aprit 1971. APPENDIX A eeren STATES CouRT OF korea FOR THE, Fourt : Circuit No. 14929 -UNITED STaTEs OF AMERICA, “AND Parrie Bec Cor- TON, Epwarp M. Francis, PvBiic ScHooL, ‘TEACHERS | OF Hawirax CouNTY, ET AL., APPELLEES = / VEFSUS — o:. ScorLaNnpD Neck City Boarp or EpucaTIon, A Bopy. CorPORATE, APPELLANT | No, 14930 UNITED Seats OF “AMERICA, AND Patter Buack Cor- . TON, Epwarp M. FRANCIS, "Pusu ScHOOL TEACHERS OF HAirax County, AND OTHERS, APPELLEES : versus - RoBert MORGAN, ATTORNEY GENERAL OF N ORTH CARO- “LINA, THE State Boarp or Epucation or NortH NortH Carotina, AND Dr. A. Craig PHILLIPS, NortH CarRoLina STATE SUPERINTENDENT OF PUBLIC. INSTRUCTION, APPELLANTS Appeal from the United States District Court for the ' Eastern District of North Carolina, at W ilson _ ALGERNON i. Butter, District J udge, and JOHN D. LARKINS, ‘WJr., District J udge | . (1a) a oe 422-400—71-—. 2 2a ~ ” Argued September 16, 1970 Before BoREMAN, Bryan and CRAVEN, Cireiit J udges Reargued December 7, 1970—Decided March 23, 1971 ' Before HAYNswortH,.- Chief Judge, SoBELOFF, Bore- . MAN, Bryan, WINTER, CRAVEN and Buraier, Circiiit J udges sitting en bane, on resubmission William T. Joyner and C. Kitchin Josey y (Joyner & Howison and: Robert Morgan, Attorney. General of. North Carolina, on brief) for Appellants; and Brian K, Landsberg, Attorney, Department of Justice (Jer- ris. Leonard, Assistant Attorney General, David L. Norman, Deputy’ Assistant Attorney General, and - Franas.H. Kennedy, Jr., Attorney, Department of Justice, and Warren H. Coolidge, United States At- torney, on brief) for Appellee United States of . Amsrics: and James R. Walker, Jr.; (Samuel S.— rf Mitchel oi brief) for Appellees Pattie Black Cotton, ~ et al. ob gs S CravEN, Circuit Judge: ‘ _. The Scotland Neck City Board of Education ‘and | the State of North Carolina have appealed from an * - order of the United States District Court ‘for the ~~ Eastern District of North Carolina entered ‘May 23, 7 1970, déclaring Chapter 31 of the 1969 Session Laws - | . of North Carolina unconstitutional and permanently "enjoining any further implementation of the statute. We reverse. : ’ This, is one of three cases now before the Court involving the “carving out” of part of a larger school district. The others are Alvin Turner v. Littleton-Lake Gaston School. District, —. - “F. 24 — (No. 14,990) and Wright v. Couneil of City of Em- » poria, — F. dia (No. 14,552). ; . 3a \ pter 31 of the 1969 Session Laws of North Caro- Cee tenite by the North Carolina General Assembly on nig ee 3, 1969, provided for a new school. district botinded by the city limits of i Neck en the 2 : Chapter 31 is entitled and reads as a dies “AN ACT to improve and provide public schools of a higher standard .for the residents of Scotland Neck in. Halifax County, to establish the Scotland Neck. City Administrative Unit, to provide for the administration of the public schools in said administrative unit, to leyy a special tax ‘for the public schools of said administrative unit, all of ‘Which shall be subject to the approval of the voters in a referendum or special election : . °° Section 1.,There is jeeey classified and established. pub-. . lie school edninistrativg unit to be known and designated as the Scotland Neck City Administrative Unit which shall consist - of the territory or area lying and being within the boundaries or corporate limits of the Town of Scotland Neck in Halifax . County, and the boundaries of said. Scotland Neck City Ad-: ministrative Vnit shall be coterminous with the present cor- . porate limits. or boundaries of the Town of Scotland Neck. The © governing board of said Scotland Neck City Administrative Unit shall be known and designated as the Scotland . Neck _ City Board of Education, and said Scotland Neck City Board of Education (hereinafter referred to as: Board) shall have and exercise all of the powers, duties, ‘privileges and authority granted and applicable to city administrative units and city - boards of education as set forth 1 in Chapter 115 of the Genera] Statutes, as amended. “Section 2.” The Board shall consist of five members ap- pointed by the governing authority of the Town of Scotland Neck, and said five members shall hold office until the next regular - municipal election of the Town of Scotland Neck to be held in May, 1971. At the regular election for Mayor and Com- missioners of the Town of Scotland Neck. to be held in May, © 1971, there shall) be elected five. members of the Board, and three persons so elected who receive’the highest number of votes - shall hold office for ‘four .years and the two persons elected who receive the hext highest number of votes shall hold office © | - ; | 7 \: wee pproval.of a majority of the voters of Scotland Neck - ina refe endum:, ‘The new school district vas approved . -. by the voters~ | Seotland Neck on April 8, 1969, by - a vote of 813'to § of @total of 1,305 registered _ for ‘two years, and thereafter all mem of: Ge Sail. so elected, as successors, shall hold office for four years..All mem- -. bets of the Board shall hold their offices until their successors. «| -(sic): are elected and qualified. All members of the Board shall _ be eligible to ‘hold’ public office ‘as required by the Const, tution and laws of the State. oo _ “Srorton 3. All members of the Board ‘shall be elected by ; the qualified voters of the Town of~Scotland Neck:and said election’ shall be held and conducted by: the governing author- © itycof the Town of Scotland Weck and by its election officials _ and ‘pursuant to the same laws, rules and regulations as are, ~~. applicable to the eleetion.of the municipal officials of the Town ‘of Septland Neck, and the results shall ‘be certified i in the same manner. The election of members of the Board shall be held > at the same time and place as applicable to the election of the = Mayor and Board of Commissioners of-the Town of Scotland ESNeck. and in aceérdance with the expiration of ‘terms of office ' of members of the Board. The members of the Board so elected shall be inducted. into office on the first Monday following the . date of election, and the expense of the election of the mein- * ‘ ‘bers of the Board shall be paid by the Board. _ -“Secrion 4. At.the first meeting of the Board appointed ‘as above set forth and of a new Board elécted as herein provided, the Board: shall. organize by electing ‘ene of its. . members .as chairman for a périod_of ne’ year, or until hig successor is elected and, qualified. The -chaiyman. shall pre- - “side at* the meetings of. tle Board,,and in the event of his ‘absence or sickness, the Board may appoint one of its members ma as temporary, chairman. ‘The Scotland Neck. City Superin- tendent ‘of Schools shall be ex officig secretary to his Board . and shall keep the minutes of the Board but shall have no © vote. If there exists a vacancy in the office of Superintendent, er 3 then the Board may appoint one of its members to serve tem- '. ‘porarily as secretary to the Board. All vacancies in the mem- bership. of the Board by death, pees, Temov al, change _ em \ voters. Prior ‘to. this date, Scotland Neck was part | . of the Halifax County school distriet. In July 1969, the, United States Justice Department filed the com- plaint in this action against the Halifax County Board - . + of residente or otherwise shall-be filled by appointment by -the governing authority of the Town of Scotland Neck of a per-_ son to serve for the unexpired term and until the next regular election for members of the Board when a successor shall be elected: > a a ee eo, 4 * | . _ “Seerton 5. All public school property, both real and per-- Sonal, and_ all buildings, facilities, and equipment used for: - public school purposes, located within the corporate limits of _ Scotland Neck and -within the boundaries set forth in Section. .- 1 of this Act, and all records, books, moneys budgeted:for said — - facilities, accounts, papers, documents and property of any - ‘description shall, become the property. of Scotland Neck City Administrative Unit or the Board; all real estate belonging to the -public schools located. within the above-described bound- aries is hereby granted, made over to, and automatically by force ef this Act. conveyed: to the Board from the County . ‘public school authorities. The Board of Education of Halifax * County is authorized and directed to execute any and all deeds, - bills ofysale, assignments -or other documents that may be - necessary’ to completely vest title to all such property to.the - Board. :; 4 | ) “Section 6. Subject to the approval of the voters residing ~ within the boundaries set forth in Section 1 of this’ Act, or within the corporate limits of the Town of Scotland. Neck, .as hereinafter provided, the governinj authority of the Town of - Scotland Neck; -in addition to all other taxes, is authorized and directed to levy annually a supplemental tax not to exceed Fifty Cents (50c) on each One Hundred ($100.00). Dollars of the assessed value of the real and personal property taxable in said Town of Scotland Neck. The amount or ‘rate of said tax ‘shall be determined by the Board and: said tax shall be and paid to the Treasurer of the Board. The Board may use _ the ‘proceeds of the tax sé: collected to supplement any object — or item in the school budget as fixed by law or to supplement . _ collected by the Tax Collector ‘of the Town of Scotland Neck of Education’ seeking’ the disestablishment of a dual. ~ sehool system operated’ by the Board and seeking a declaration: of invalidity and an. injunction against’ ; the implementation of. Chapter 31. ‘Scotland N eck any abject” or item in the Current Expense Fund or Capital . Outlay Fiind as fixed by law. '- . “Secrron 7. Within ten days from the date of the ratification _of this Act it shall be the duty of the governing authority of — .the Town of Scotland Neck: to call a referendum or special — election upon the question of ‘whether or not said Scotland Neck City Administrative Unit and its administrative board shall be established and whether ‘or not the , special | tax herein: provided’ shall be levied and collected for the purposes herein provided. The. notice of the special election shall be’ published — once a week for two successive weeks im some newspaper pub- { lished im ‘the Town of Scotland Neck. The notice.shall contain. a brief statement of the purpose of the special. election, the aréa in which it shall. be held, and that a vote by a majority of those voting in. favor of this Act will establish the Scotland Neck City Administrative Unit and its Administrative Board as herein set forth,.and that an annyal tax not to exceed Fifty rod ~~€ents_(50c) on the assessed. yalugtion of real and personal - 7 property, acéording | to* ea¢ One Hundred Dollars ($100. 00) valuation, the rate to be fixed by the Board, willbe levied as a — snpplementsi” tax inthe Town of Scotland Neck, for the pur-. pose of supplementing any lawful public school ‘budgetary’ item: _ A new régistration of voters shall not be required and in all ; respects : the laws and regulations under which the municipal elections 6f the Town of Scotland Neck are held shall apply to said special election. The governing authority of the Town _ of Scotland Neck shall have the authority to enact reasonable . rules and regulations for the necessary election books, records . - and other documents for such. special election and to fix the necessary details of said special election. aaa “Secrion 8. In said. referendum or special election TY ballot ‘in form substantially as follows ‘shall be used’: VOTE FOR ONE: _“( ) FOR creating and establishing Scotland Neck City Administrative Unit with administrative Board to operate pub- "4 | : 7a - 3 City Board of Education was added as a. defendant in August 1969, and the Attorney General of North Carolina. was. added as a defendant in November 1969. -On August 25, 1969, the District Court issued ‘a 'tem- porary injunction restraining’ the implementation of .. ‘Chapter 31, and thereafter on May 23, 1970, made ~ the injuniction permanent.. The District Court rea- soned that Chapter 31 was unconstitutional because it would create a refuge for white students arid would interfere ‘with « the desegregation of the Halifax Courity school system. | lic, schools of said Unit and for supplemental tax’ not to exceed Fifty’ Cents . (50c) on the assessed valuation of real and per- sonal property according to each One Hundred Dollars a ($100.00) ‘valuation for objects of school budget. : “(.) AGAINST creating and establishing Scotland Neck. City Administrative Unit with administrative Board to oper- . ate ‘public schools of said Unit and against supplemental tax not to exceed Fifty Cents (50c) onthe assessed valuation of real and. personal property according to each One Hundred Dollars ($100.00) valuation for objects of school budget. . “If a majority of the qualified voters voting at ‘such refer- endum or special election vote in favor of establishing Scotland Neck City Administrative, Unit, for creation of administrative — Board. to operate public schools of said Unit and for special — supplemental tax as herein set forth, then this Act shall be- come effective and operative as to its provisions upon the . . date said’ special élection results are ‘canvassed and the result . judicially determined, otherwise to be jiull and_ void. The ex- / pense of ran ferendum or special el paid by | the governing onirnngpe nice ery whewiiod but if, said Unit and Board are established, then said Town of Scot- _ land Neck shal¥ be reimbursed by the Board for said expense as soon as possible. “Section 9. All laws and clauses o gfaws in conflict ™ this Act are hereby repealed. “Section 10. This Act shall be in full force and effect atcord- ing to its provisions from and after its ratification.” ; 8a ye eg It is clear that Chapter 31 is nok cnectaiintinnt on its face. But a facially constitutional statute may - in the context of ‘a given fact situation be applied unfairly or for a discriminatory- purpose in violation of thegequal protection. clause of the Fourteenth - '. Amendment. Yick Wo v. Hopkins, 118. U.S. 356) i = (1886). Ww nnot judge the validity of the statute in vacuo but. ust. examine it in relation to the prob-,’ lem it was meant to solve. Poindexter v. Louisiana: © = Financial ioe Commanmon, 275 F. Supp. 833°. | (E.D.-La. 1967)." a ore , | »° J -* | , THE HISTORY OF SCHOOL es Tae, IN HALIPAx - COUNTY AND THE. ATTEMPTS TO SECURE A SEPARATE — SCHOOL ‘DISTRICT FOR THE CITY OF. SCOTLAND NECK For many years until 1936, the City of - Scotland Neck was a wholly separate school district operating _independently of the Halifax County school system _ into which it was then merged. Both the elementary : § and the high school buildings presently i in use in Seot-, . 4. land Neck were constructed. prior to 1936 and were __ .’ financed by city funds. Halifax County operated’ a completely segregated, ~~ . dual school system from 1936 to 1965. In 1965, Hali- 7 - fax County adopted’ a freédom-of-choice plan. Little . Integration resulted during the next three years. ; Shortly after: the Supreme Court decision in Green” 3. v. County School Board of New Kent County, 391 © U.S. 430, in May of 1968, the Halifax County Beard ——_ : __-of Edueation-requested-the North Carolina Depart- ' ment of. Public Instruction’ to stirvey their schools and to make recommendations regarding, desegre- P, gation of the school h ayaiete. ; — __ “_ % ae In J nly 1968, the Justice Scone ict a . “notion e ~ letter’’ to the Halifax County: Board notifying them - that they: had not disestablished a dual.school sys- . tem and that further steps would be necessary to ~~ eompty with Green. After negotiations with the Jus- tice Department, the Halifax County Board ‘agreed informally to disestablish their dual-school system ‘ by the. beginning of the 1969-70 school year, with a. _- number. of interim steps to: be taken in the 1968-69 school year. As part of the interim steps, the seventh and eighth grades were transferred from the Brawley _ | School, an all-black school located just outside the ~~ eity. limits of Scotland. ‘N eck,.-to: the Scotland. Neck: _ School; previously ail white. The results. of the N orth Carolina Department: of } Public Instruction survey were published in Decem- ber of 1968. It recommended an interim plan and. a a long range plan. The interim. plan proposed the crea- tion of a ‘unitary: school system through a combination. of geographic attendance zones and-pairing of previ-" | ously _all-white~ schools with - previously’ all-black , ‘schools.. Seotland Neck School’ was to be paired with. Brawley School, grades 1-4 and 8-9 to attend. Braw- ° ley and grades 5-6" and 10-12 to attend -Seotland- - Neck. The long range plan called for the building of — - two new consolidated high schools, each to serve half of the geographic area composing the Hahfax County _ - school districtThe-Halifax County: Board of Educa- - lon declined to implement the plan proposed by the ~ Department of Public Instruction and the J ustice Department filed suit in July 1969. Paralleling this history .of\school segregation. i in the Halifax County. school system is a history of attempts _ on the — of the. residents of Scotland Neck to ob-' ¥ . 10a “ ‘tain a ae school. district. The ptohénsinth of a. separate schoel district began to formulate their plans in 1963, five years prior to. the Green decision and: © _ two yeats prior fo the institution of freedom-of-choice §_ . by the Halifax ¢ County Board. They were unable to-: present their plan in the form of a bill prior to the expiration of the 1963 session of the N orth Carolina — | Legislature, but a bill was introduced in.the 1965 — session which would have created a separate school. - ... district composed of Scotland Neck and the four sur- | “rounding townships, funded partially through local supplemental property taxes. The bil] did. not-pas and it -was the opinion of many _of-the™ Scotland Neck - residents that its defeat was the result of opposition | of individuals living outside the city hist of ‘esl - - “Jand Neck.. ~ At the instigation of the couty’ Halifax Suanky ‘Board of Education member who was a resident of —— a delegation from the Halifax County ools attempted in 1966 to get, approval for the ‘construction of a a new high school facility in Scotland Neck to be operated on a completely integrated’ basis. _ The proposal was not approved by the State _—— of School Planning. \. After visititig the SMallest school district. in ‘the | _ State té determine the economic feasibility of creating a separate unit for the City of Scotland Neck alone; the proponents of a separate school district again '. sponsored a bill in the Legislature. It was this bill which was everitually passed on March 31, 1969; as. ‘Chapter 31 of the Resston Laws of 1969. =~ - La : vue “THE THREE. PURPOSES OF CHAPTER 3 31 geen ; The District Court found thatthe proponents. of a special school district had three purposes in mind. in ~ ~ sponsoring Chapter 31 and the record supports these - findings. . First, they wanted more local con 1b overs” their schools. Second, -they wanted to ine the eo expenditures fon, their schools through local supple- mentary pro taxes: Third, they wanted to pre- vent anticipated white fleeing of ‘the public schools. _- Loeal control and increased taxation were thought - " necessary to increase the quality af education in their schools. Previous efforts to upgrade Scotland Neck . ~ -Schools had been frustrated. Always it seemed the ~ needs of the County came. before ‘Seotland Neck. The . -. only edunty-wi bond issue passed in Halifax since 1936 was passed in 1957. Two local school _ ‘triets ing in Halifax County received a - of $1 ,020,000 from the bond issue and the Halifax ‘County system received $1,980,000. None of the money ‘received * by Halifax . County was -spent © on schools ca within the city limits of Scotland Neck. If Scotland. ‘Neck had been a separate school district at the time, it would havé received $190,000 as its proportionate - shate of the bond issue.. The Halifax County system. also received $960,000 in 1963 as-its proportionate . share of the latest statewide bond issue> None of this money: was spent or committed to any of the sehools _ within the city limits of Scotland Neck. Halifax County has. reduced its annual capital outlay tax from _63 cents per $100. valuation in 1957 to 27.5 cents per ~ $100 valuation ‘in the latest fiseal year. In order for ‘the referendum to pass. under the terms’ of Chapter _ 31, the voters of. — Neck had to approve not on EOS | + only the creation of a\separate school ‘district but in ' addition had - to authorize a local supplementary - property tax not to exceéd 50 cents per $100 Valua-- tion per year. Despite such a political albatross the - referendum was favorable, and moreover, the sup- plementary tax: was levied ‘by the Scotland Neck . Board at the full 50'cent rate. : a ae = [ ‘ i : Tir 7 | . WHITR, FLEEING—*THE QUESTION ABLE THIRD PURPOSE. ~ _- But it is: not the. permissable first-purpose or the , ~ clearly commendable second purpose which caused the. ' District Court to question the. constitutionality. of © . Chapter 31. It is rather the third. purpose, a desire - on the part of the proponents of Chapter 31 to pre- - Vent, or at least diminish, the flight of white students « . from the public. schools, that concerned the District ‘ Court, The population of Halifax County.is pre- ~- dominantly black: The population of Scotland Neck — is appfoximately 50 percent black’-and’ 50. percent '_, white, and the District Court found that the pupil _ Tatio by race in the schools. would haye been 57.3 © pertent white to 42.7 percent black. ” a A number of decisions have mentioned the problem of white flight following the integration of school “ systems- which have'a heavy majority of -black stu- dents..Monroe v. Board of Commissioners of the City - of Jackson; 391 U.S. 450, 459 (1968); Brunson v. Board of Trustees of School District No. 1 of Claren- / don County, — F. 24 — (4th Cir. 1970); Walker v. County School Board of Brunswick County, 413 F. 2d 53 (4th Cir. 1969) ; Anthony yv. Marshall County Board of Education, 409 F. 2d 1287 . (5th Cir. 1969). All of these cases hold that the threat of white flight - : will not justify the continuing operation of a/dual - a 4 ie oN leg Se ae pee : eel on Iii tlic gta nana’ : that_a. school board-(or a state), may. pot constitu-_ tionally. consider and adopt measures forthe purpose ‘of curbing or diminishing white flight from 4 unitary school system. Indeed it seems obvious that such a purpose is‘ entirely consistent with and may help — ‘ \implement. the Brown principle. It is not the purpose of preventing ‘white flight which is the subject of. judicial concern’ but rather the price of achievement. ‘If the effect of Chapter 31 is to continue a dual school _ system in Halifax County, or establish one in Scot- — “land ‘Neck, the laudable. desire to stem an. impending . - flow of white students from the ptiblic schools will’ — not save it from constitutional infirmity. But if Chapter 31 does not have that effect, the desire -of its proponents to halt white flight will not make. an other- wise. constitutional statute unconstitutional., es - In considering the effect of Chapter 31. on | school | an it is important to distinguish the effect of Chapter 31 from the effect of a transfer plan adopted by the Seotland Neck Board of Education: The effect of the : . transfer plan was. to substantially increase the per- _ eentage of white students in the Scotland Neck’ schools. But the transfer plan is solely the product of the Scotland Neck. Board of Education‘ and ‘not _ Chapter 31. Therefore the effect of the transfer plan . _ has no relevance tothe question of the constitutional-. . ity. of Chapter + le : + Aeiatlines akann. tad: the coviiiin ol thn: teat: don is - evidence that the intended effect of Chapter 31 was to preserve ao previnns secte metyam of he. actinnd Heck, schools. Wo . disagree. J: . “We are concerned here with the intent of the North‘ Carolina : Legislature and not the intent of the Scotland Neck Board. In . +, determining - — intent of an act pseacia sac 31, 14a ~ 0” The: District Court held that the creation of a sep- " - arate*Scotland Neck School district would uneonstitu- ’ ' tionally interfete. with the: i nplementation of a plan __ » to desegregate the’ Halifax County schools adopted by _ + the “Halifax County Board of Education: We. hold | . , that theeffect of the separation of the Scotland Neck. ++ sehoolsYand students én the desegregation of the re- '. . Mainder of the Halifax County system is minimal and. oo insufficient to invalidate Chapter ‘31. During the 1968- - 69: school year, there were 10,655 students in the Hali- | __ fax County Schools, 8,196 (77%) were black, 2,357” "(22% ) were white, and.102 (1%) were’Indian. Of this total; 605 childréh of school age, 399 white and 296 black, lived within the: city limits of Scotland: Neck. Removing the Scotland Neck students from the Halifax County system would have left 7,900 (80%) _ black students, 1,958 (19%): white students, and 102 ' (1%) Indian studénts. This is a shift in the ratio of substantial change. Whether the Scotland Neck stu- | dents -remain within the Halifax County system or _- County schools wild have a substantial majority of _black students. Nor would there be a per pupil ‘de- it is, appropriate to consider the reason that ‘the’ proponents of the act desired’its passage if it can be inferred that those rea- . sons were made known ta the Legislature. There is evidence in the record to show that the thrée purposes that the: District Court found were intended by the proponents of Chapter 31 were presented tp the Legislature. However, there. is nothing - the Scotland Neck Board would adopt a transfer plan after the enactment: of -Chapter 31 which would, have the effect of ‘in- creaSing the percentage of white students. ; | . _- We will discuss the transfer plan‘ later in a separate part of 9 the opinion. . - #e eo ‘black to white students of only 3 percent, hardly # a attend ‘separate schools of .their own, the: Halifax — | in the record to suggest that the Legislature had any idea that ~ SS ba crease in: the proceeds from: the. saiieniila property . ~ taxes. available in the remaining Halifax County sys- - tem. The county tax is levied . on_all. property in the ee and distributed ‘among the various school - districts in the county on a per pupil basis. In addi- 2 —™—. tion, the Superintendent of Schools for the Halifax County ‘system testified that-there would be no de- ..erease in teachfer-pupil ratio in the remaining Halifax County. system and in fact that in a few special areas, . Such as -speech therapy, the teacher-pupil . ratio may actually. increase. , : oS _ Nor can -we agr ee with. the District ‘Court that a Chapter 31 creates a refuge for the white students of the Halifax County system. Although there are mo re k, White students than black students in Scotland Nec the white majority is ‘not large, 57.3 percent white and _ 42.6 percent black. Since. all students in, the. same. grade would attend. the same school, the.system would be integrated throughout. There is no indication that - _ the geographic boundaries were drawn to include white students and exclude black students as there has been in other cases where. the courts have ordered ~ aap ainaning across school district boundaries. Haney - v. County Board,of Education. of Sevier County, 410°. F 2d 920 (8th Cir. 1969). The city limits provide a natyral geographic boundary. There is nothing in the ‘record to suggest that the. greater percentage of white students in Scotland Neck is a product of residential - segr egation resulting. in part from state action. See pad v. School Board of the wha d of Norfolk, 897. F. 2d 37 (4th Cir. 1968). . From the history surrounding. the enactmenit of - Chapter 31 and. from the effect of Chapter 31 on "school desegregation in Halifax County, we cénelude - that the purpose of eee 31, was not to. invidiously ~- 16a discriminate against b black students i in ’ Halifax County , and that Chapter 31 does not violate the equal protée: | tion clause df the Fourteenth Amendment. ° 3 ” Appellees urge in their brief that conceptually the - way to analyze this case is to ‘‘view -the results of severance as if it were part of a desegregation plan gee: for the original. system.’’ We do not agree. The*sever- ance ‘was not part of°a desegregation. plan proposed . by the ‘school board but: was instead an action by the eas Legislature redefining the boundaries of local govern-. mental units. If the effect of this act was the con- tinuanee of a dual school system in Halifax County or the establishment of a dual system in Scotland . Neck it would not withstand challenge under the eqiial. * protection clause, but we have concluded that it does ° not have that effect. a _ But assuming for the ‘sake of argument that the appellees’ method of analysis is correct, we conclude that the severance of Scotland Neck students would. _ still withstand constitutional challenge. Although it is “not entirely clear from their brief, appellants’ apparent contention is that the variance in the ratio of black to white students in Scotland. Neck from the ratio in the ‘Halifax County system as a whole is so substantial that if Scotland Neck was proposed, as a geographic zone’ in a desegregation plan, the plan — ‘would have to be disapproved. The question of - ‘whether, as a constitutional matter, any particular racial balance must be achieved in the schools’’ has’ ‘yet to be decided by the courts. Northeross v. Board - of Education of Memphis, —U.S.—, 90,’S. Ct. 891, 893 (1970) (Burger, C. J., coneurring). In its first ; —— of remedies for school: segregation, Brown Board of Education of Topeka, 349 U.S. 294 (1955) (Brown IT),. the Supreme Court spoke in terms of ‘‘practical flexibility”’ and “‘reconciling pub- — Ay 17a ° lie and private ‘needs.’? 349 U.S. at 300. In Green v: «County School Board of. New Kent County, 391 U. S. _ 480 (1968), the’court made it clear that the school | - board has the burden of explaining its: preference for a method of desegregation which is less effective in disestablishing a dual school system than another ’ more promising method. _Even if we assume that a more even racial balance - ‘throughout the schools of Halifax County would be more- effective in creating. a unitary school system, we. conclude that the deyia- tion is adequately explained by the inability of peo- ple of Scotland Neck to be able to increase the level of furiding of the schools attended by their children’ .* when the geographic -area served by those: schools ; extended beyond the city limits of Scotland Neck... - Our conclusion that Chaptér 31 is not. unconsti- tutional leaves for consideration the transfer ‘plan adopted by the Scotland Neck School Board. The transfer plan adopted by the Board- provided for - the transfer of’ students from the remaining Halifax » County. system into the Scotland Neck system and *from the Scotland "Neck ‘system into-‘the Halifax _ County system. Transfers into the Scotland Neck _ system were to pay $100 for the first child in a fam- ily, $25 for the next two children in a family, and mo fee for the rest of the children in a family. As. a result of this transfer. plan, 350 white students and — 10 black students applied for transfer into the Scot- land Neck system, and 44 black students applied for: transfer out of the system. The net result of. these transfers would have been to have 74 percent white students and 26 percent black studenfs in the Scot- - land Neck system. We conclude that these transfers — would have tended toward establishment of a resegre- gated system and that’ the transfer plan violates the - ‘equal protection clause of the. Fourteenth . Amend- a53-400—7 1——8 18a. ment.* See Monroe v. Board of Commissioners of the - City of: Jackson, 391 U.S. 450. (1968). We reverse the judgment of the District Court holding Chapter 31 unconstitutional, afd remand to ‘the District Court ’with instructions to dissolve its injunction. The District Court will‘ retain ‘jurisdic- tion’ to consider plans of integration proposed by Halifax’ County Board of Education and by Sateen Neck Board of Education. — | “Perhaps - it should be. ited that in the school board’s amended answer filed on September’ 3, 1969, it withdrew the original transfer plan and represented to the District Court that it intended to allow only such transfers as “may be in conformity to the law and/or Court order or orders applicable to Defendant, and in “ conformity to a plan of . limitation of transfers to be prepared: by Refendant _and submitted ‘to this. Court.” j | "APPENDIX B. United States Court of ‘Appeals for the Fourth ot | -No. 14552 . | Prcota ANNETTE WRIGHT; ET AL., APPELLEES ~~ . 4 , . Vv. ; 7 | CoUNCIL OF THE City oF EMPOgIA AND THE MEMBERS _ _ "THEREOF, AND SCHOOL Boarp OF THE CITY oF EMPORIA ; AND THE MEMBERS THEREOF, APPELLANTS Appeal from the United States District Court for the.. Eastern District of Virginia, at Richmond Rozert R. Meruicr, Jr, District Judge Argued October 8, 1970—Decided March 23, 1971 Before HaynswortH, Chief Judge, Boresian, Bryay, | - - Winter, and Craven, — Judges sitting en . _ © bane* . John F. Kay, Jr., and D. Dortch. Warriner (War- riner, Outten, Slagle & Barrett; and Mays, Valentine, Davenport & Moore on brief) for Appellants, and S. W. Tucker (Henry L. Marsh, HI, and Hill,- Tucker -& Marsh; and Jack Greenberg, James M. Nabrit, III, . and Norman Chachkin on brief) for Appellees. CRAVEN, Circuit Judge: In this case and - two. Py others now under submission en bane we must deter- mine the extent_of the power of state government to * Fudge Sobeloff did not Darkici pats, J doe Butzner disqualified himself because he participated as & oa judge | in an. earlier , Stage of this case. . ~ (19a) ‘ redesign the geographic boundaries of school dis- tricts.* Ordinarily, it would seem to be plenary but in school districts. with a history of racial segregation — enforced through state action, close scrutiny is required | to assure there has not been gerrymandering for the purpose of perpetuating invidious discrimination. _ - Each of these cases involve a county school district in which there is a substantial majority of black students out of which was carved a new school district comprised of a city er a city plus an area surrounding the city. In | each case, the resident students of the new city unit are’ approximately 50 percent black and 50 percent white. ‘ In each ease, the district court enjoined ‘the establish- ment of the new school district. In this case, wareverse. - i. -If legislation creating a new school district produces | - a shift in the racial balance which is great enowgh to support an inference that the purpose of the legisla- tion is to perpetuate segregation, and the district judge draws the inference, the enactment falls under _ the Fourteenth Amendment and the establishment of ' such ‘a new school: district must be enjoined. See Gomillion v. Lightfoot, 364:U.S. 399 (1960).. Cf. Haney v. Goudy County, 410 F. 920 (8th Cir. 1969); Burleson v. County Board of Election Commissioners of Jefferson County, 308 F. Supp. 352 (E.D. Ark.) aff’d — F. 2d —, Board. of Education of Sevier No. 20228 (8th Cir. Nov. 18, 1970). But where the ~ shift is merely a modification of the racial ratio rather than effective resegregation the problem becomes more difficult. The ier two cases are United States v. Scotland Neck City Board of Education, — F. 24 —, Nos. 14929 and 14930 (4th Cir. —, 1971) and Turner v. Littleton- Lake Gaston School Dis- trict, — F. 2d —, No. 14990 (4th Cir. —, 1971). Qa | ye? The ofenkion of new school districts may . ia desir- _ able and/or necessary to promote the legitimate state interest of providing quality education for thé state’s. children. The refusal to allow the creation of any new school districts where there is any change i in the raeial makeup of the school’ districts ‘could seriously impair the state’s ability to achieve this geal. At, the same time, the history of school integration is replete with : numerous examples of actions by state officials.to-im- — — pede the mandate ‘of Brown v. Board of Education, .349 U.S. 294 (1955) (Brown II). There is serious iger. that-the creation of new school districts may ' prove to be yet another method to obstruct the transi- _-tion from racially separated school systems to school systems in.which no child is denied the right to attend “a school on the basis of race. Determining into which | of these two categories.a particular case fits requires a careful analysis of the facts of each case to discern the | dominant purpose of boundary realignment. If the cre- . ation of a new school district is designed to. further _ the aim of -:providing quality education and is attended - secondarily by a modification of the racial balance, _. short of resegregation, the federal courts. should not interfere. If, however, the primary purpose for creat- __ ing a new schogl district is to retain as much of sepa- ration of the races as possible, thé state has violated its affirmative constitutional: duty to end state sup- ported school segregation. ‘The test is much easier to . state than it isto apply. “ay Emporia became a city of the so-called second class on July 31, 1967, pursuant to a statutory procedure ' established ‘at least as early as 1892. See 3 Va. Code » § 15.1-978 to -998 (1950) ; Acts df the Assembly 1891- 92, ch. 595. Prior to that time it was.an incorporated town and as such was part of Greensville.County. At the time city status was attained Greensville County. - was operating public schools’ under a freedom. of choice plan approved by the district court; and Green. Vv. County School Board of New Kent County, 391 - U.S. 430 (1968), invalidating freedom of choice unless it ‘‘worked,”’ could not. have béen anticipated by Em- ° _ poria, and indeed, was not envisioned by: this court. | Bowman v. County School Board of Charles City County, 382 F. 24-326 (4th Cir. 1967). The record does not suggest that Emporia chose to become a‘city in _ order to prevent. or diminish integration. Instead, the motivation: appears to have been an unfair allocation - of tax revenues by county officials. -_ One of the duties imposed on Emporia by the Vir- . Sinia statutes as a eity of the second*class was to establish a school board to supervise the public educa- tion of the city’s children. Under the Virginia statutes, _ Emporia had the’ option of operating its own school . system or to work out one of a number of alternatives’ | under which its children would continue to attend school jointly with the county children. Emporia con- © sidered operating a separate.sehool system but decided it would not be practical’ to do so immediately at the time of its independence. There was an effort to work out some form of joint operation with the Greensville - County schools in which decision making power would ' be shared. The county refused. Emporia finally signed _ 4 contract with the county on April 10, 1968, under _ which the city school children. would attend schools | _ operated by the Greensville County School Board in '_ exchange for a percentage of the school system’s oper- -- ating: cost. Emporia agreed to this form of operation — only when given an ultimatum by the county in March , 1968 that it would stop educating the city children a 2 Wien unless some agreement was reached.: - 234 At the same time that-the county. was engaged in its. _ yj controversy with Emporia about the means of educat- SO _ ing the city children, the- county was also engaged in Nt ee: controvetsy over the elimination of racial segrega- tion in the county schools. Until. sometime in 1968, Greensville .County operated under a freedom of choiee plan. At that time the plaintiffs in this action successfully urged ‘upon the district court that the freedom of choice plan did not operate to disestablish _* the previously existing dual. school system and thus | _ Was inadequate under Green v. County School Board of New Kent County, supra. After considering various _alternatives, the district court, in an order dated June . 25, 1969, paired all the schools in Greensville County. “Also in June 1969; Emporia was. notified for the . first time by counsel that in all probability its contract _ with the county for the education of' the city children - _ was void under state law. The city then filed an action in the state courts to have the contract declared void and notified the county that it was ending its con- - traetual. relationship forthwith. Parents of city school. children were notified that their children would at- — tend a city school system. On August ‘1, 1969, the | Pisintiffs filed a supplemental: complaint seeking an | ‘injunction against the City Council and the City School Board to prevent the establishment of a sepa- rate school district. A preliminary injunction against the operation of a separate system was issued on Au- | gust 8, 1969. The temporary injunetion was - made permanent on March 3, 1969” The Emporia city unit would not be a white island in an otherwise heavily black county. In fact, even in - 2 The decision of the court below is ‘reported as Wright ve County School Board of Greensville aa y, 309 E. Supp. 671 (E.D. Va. 1970). , | | i \ . \ . \ za | Emporia, there will bea majority of black’ students in the public ‘schools, 52 percént black to 48°percent © _ white. Under the plan ‘presented by Emporia to the | | _ district court, all of the students living within the city . _ boundaries would attend a single high-school and a single grade school. At the high. school there would’ be a slight white majority, 48 percent black and 52 - percent white, while in the grade school there would be a slight black majority, 54 percent black and 46 pereent white. The city limits of Emporia provide a natural geographic boundary for a schoel district. The student population of the Greensville County. School District without the separation of the city unit. is 66 percent black and 34. percent. white. The -stu- dents remaining,in. the geographic jurisdiction of the county unit after the separation would be 72 percent ' -blaek and 28 percent white. Thus, the separation.of | z the Emporia’ students would create a shift of the racial balance in the remaining county unit of 6 per-— cent. Regardless of whether the city students’ attend a separate school system, there will be a substantial majority of black students in the county system. ~ Not only does the effect of the separation not de- ' monstrate that the primary purpose of the separation — was to perpetuate segregation, but there ‘is strong evi- dence to the contrary. Indeed, the district court found’ that -Emporia officials had other. purposes in mind. Emporia hired Dr. Neil H.. Tracey, a professor of __ education at the University of North Carélina, to -evaluate the plan adopted by the district court for « ‘Greensville County and compare it with Emporia’s . proposal for its.own school, system. Dr. Tracey said his studies were made with the understanding that it ‘ ‘was not the intent of: the city to resegregate. He testi- fied that the plan adopted for. Greensville County would: require. additional expenditures for transpor- tices and that an examination ‘of the ‘nalts budget . . ? a . Seat Rlinaie St Eos . ? , 7 7 P * / a . ’ _ to inflation. Emporia on the other hand proposed in- creased revenues to increase the quality of education ‘. for its students and in Dr. Tracey’s opinion the pro- © _ posed Emporia system would be educationally su- . perior to the Greensville system. Emporia proposed’ | , lower stiident teacher ratios, increased’ per pupil ex- - penditures, health: services, adult. education, and the | addition of a kindergarten program. ‘ In sum, Emporia’s position, referred to by the dis: - triet. court as “uncontradicted, ” was that effective _ integration of the ‘schools in the whole colinty. would _ requife increased expenditures iy order to’ preserve | * . . edueation quality, thatthe county officials were un- —willing to provide’ the necessary funds, and‘ that therefore the city would accept the burden of educat- Ine the city children. In this context, it is important "to note the unusual nature of the organization of city -_-and county governments in Virginia. Cities and coun- 4 .- ° ties are completely independent, kpth politically and _. geographically. See ,City of Richmond v. County - ' Board, 199 Va. 679, 684 (1958) ; Murra y V. Roanoke, 192 Va. 321; 324 ¢1951). ‘When Emporia was.a.town, it was politically: part of. the county and the people of Kmporia were able: to elect representatives. to the | county board of supervisors: When Emporia became a — ‘ city, it was completely separated from the county and _ _ In order for Emporia to achieyé an increase in school . expenditures for city schools it would’ have to obtain - the ‘approval ‘of the Greensville County Board of. N\ _ No longer has any representation on the county board. -- for the Greensville County. Schools indicated, that not. . only would the’ additional expenditures not be forth- — coming but that the budget increase over the previous. ~ - ' year would not even ‘keep up with increased costs due © _™ “er 26a i Supervisors whose constituents do not: include city - residents + : | Determining what is desirable or necessary in terms of funding for quality education is the responsibility of state and school district officers and is not for our determination. The question that the federal courts must decide is, rather, what is the primary purpose of the proposed action of the state.officials. See Devel- — opments in the Law—Equal Protection, 82 Harv. L. Rev. 1065 (1969). Is the primary purpose a benign - one or is the claimed benign purpose merely a cover- up for racial discrimination? The district eourt must, of course, consider ‘evidence about the need’ for-and efficacy of the proposed action .to determine the good faith of the state officials’. claim of benign purpose. In this case, the court did so and found explicitly that “[t]he city clearly .contemplates .a superior. quality education program. It is anticipated that the cost will bé,such as to require higher tax payments by city resi- dents.”” 309 F. Supp. at 674. Notably, there was no ' finding of discriminatory purpose, and instead the © ‘court noted its: satisfaction that the city would, if per- | mitted, operate its own system on a unitary basis. We think the district court’s injunction against .the _ operation of a separate ‘school district for the City of _. Emporia was improvidently entered and unnecessarily sacrifices legitimate and benign educational improve-_ ment. In his commendable concern to prevent resegre-_ gation—under whatever .guise—the district judge momentarily overlooked, we think; his broad discretion .«~ in approving equitable remedies and the practical flex- 2 ibility recommended by Brown II in reconciling public and private needs. We reverse the judgment of the district court and-remand with instructions to dis- - solve the injunetion. . : ; . > | : f+: 7 se . —_ =, 27a Beéause of the possibility that Emporia might insti- — tute a plan for transferring students into the city sys- _ tem from the county system resulting in Tesegregation,* or that the hiring of teachers to serve the Emporia . School system might result in segregated faculties, the district court is directed to retain jurisdiction. - . ; | ‘Reversed and remanded. _ _SOBELOFF, Senior Circuit Judge, with whom . WINTER, Circuit Judge, joins, dissenting and con- curring specially: In respect to. Nos. 14929 and 14930, . United States v. ‘Scotland Neck City Board of Educa- ‘tion, — F. 2d — (4th Cir. 1971), and No. 14990, Turner v. Littléton-Lake Gaston SchSol ‘District, — | F. 2d — (4th Cir. 1971), the two cases in which I par- _ ticipated, I dissent from the court’s reversal in Scot- _. land Neck and concur in. its affirmance in Littleton-. _. Lake Gaston. I would affirm the District Court in each of these cases. I join in Judge Winter’s opinion, and since he has treated the facts analytically and in detail, I find it unnecessary to repeat them except as required in the course of discussion. Not having partic- ipated in No. 14552, Wright v. Council of City of - Emporia, — F, 2d — (4th Cir. 1971), I do not. vote _on. that appeal, although the views set forth below — necessarily reflect on that decision as well, since the principles enunciated by the majority in that case are held to govern the legal issue common ‘to all three of these school cases. . | | pea *A notice of August 31, 1969, invited applications from the ’ ugust county. Subsequently, the city assured the district court it . would not entertain such applications without court permission. 28a ; I The history of the evasive tactics pur suéd by. white communities | to avoid the mandate of Brown v. Board of Ed ucation, 349 U.S. 294 (1955), is well.documented. These have -ranged from outr ight nullification by means of massive resistance laws ' and opeh and oc- casionally violent defiance,” through discretionary pupil assignment laws* and publie tuition - ‘grants in support of private segregated schools,’ to token in- tegrafion plans parading under the banner “freedom- .- Nee Duckworth v. James. 267 F 2 2d 224 (4th Cir. 1959) ; Bush v. Orleans Parish School Bd., 188 F. Supp. 916 (E.D. La. (1960), affd per curiam, 365 U.S. 569 (1961): Bush. v. Orleans Parish School Bd:, 187 F. Supp. 42 (E.D. La. 1960), affd Per curiam, 365 U.S. 569 (1961); Aaron v. McKinley, 173 F. Supp. 944 (E.D. Ark. 1959); affd sub nom., Faubus .v. Aaron, 361 U.S: 197 (1959): James v. Almond, 170 F. Supp. 33h (E.D. Va. 1959),’app. dis., 359 U.S. 1006 (1959) ; Harrison v. Day, 200 Va. 439, 106 S.E. 2d 636 (1959) (decided the same day as James y. Almond, supra).. _ ? See Cooper v. Aaron, 358 U.S.-1 (1958) ; Arwateons v.. Baard of Education of City 6f- Birmingham, Ala., 323 F. 2d 94 (5th Cir. 1963), cert. denied sub nom., Gibson v. "Harris, 376 U.S. 908 (1964): Brewer v. Howie School District No. 46, 2°: *¥. 2d 91 (8th Cir. 1956)-; Holmes v. ‘Danner, 191 F. Supp. 39 Lege Ga. 1961), stay denied, 364 U.S. 939 (1961). 3 See Northeross v. Board of Education of City of Memphis, 302 F. 2d, 818 (6th Cir. 1962); Manning v. Board of Public | Instruction, 277 F. 2d 370 (Sth Cir. 1960); Gibson v. Board of Public Instruction, Dade County, Fla., 272 F. 2d 763 (5th Cir. 1959) ; Orleans Parish School Board v., Bush, 242 F. 2d : 156 “Tdsth Cir. 1957) ; United States Commission on Civil . Rights, Civil Rights USA—Public. Schools, Southern States, 2-17 (1962). . ‘*See Griffin v. County School Board of Prince Edward | “County, 377 U.S. 218° (1964) ; Hall v. St. Helena Parish School Board. 197 F, Supp. 649 (ED. La. 1961, affd, 368 U.S. 515 ave). | —_ * 29a of-choice.” * One by one these devices have din con- demned by the Supreme Court: [T]he constitutional rights of children net 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 in- directly by them through. evasive ‘Schemes for - segregation whether attempted ‘ ee or ingenuously.’’ Cooper v. Aaron, 358 U.S. 1, 17 (1958). : - Neither these: agencies, nor school: ee nor loca, communities have the right to put roadblocks in the way of effective integration. The Court has declared that. “the obligation of every school ‘district is to ter- minate dual school systems at once and to. operate now and hereafter only unitary schools.” Alexander v. Holmes County Board of Education, 396 (US. 19, 20 — (1969). Today, I fear, we behold the emergence of a further stratagem—the carving out of new school -districts in - order to achieve racial compositions more acceptable to the white community, The majority frankly ac- knowledges the “serious danger that the creation of new school districts may prove to be yet another method to obstruct the transition from racially sepa- rate school systerns to school systems in which no child is denied the right to attend a school on the basis of race,? Emporia, supra at 4. However, the court ; fadiona: a new and entirely inappropriate’ doctrine to avert that danger. It directs District Courts to weigh - and assess the various purposes that may have moved 5 See Green v. County School Board, 391 U.S. 430 (1968); Raney v. Board of Education, 391 U.S. 443 (1968); Monroe v. Board of .Commassioners, 391 US. 450 (1968). | . 30a ‘ the proponents ofthe new school district, with the ob: jective. of determining which purpose is dominant. District Courts are told-to intercede only if they find that racial considerations were the primary purpose in the creation of the new school units.° I find no pre- cedent for this test and it is neither broad enough nor rigorous enough to fulfill the Constitution’s mandate. Moreover, it cannot succeed in attaining even its in-. tended reach, since resistant white enclaves. will quickly learn how to structure a proper record—shrill with protestations of good intent, all consideration of racial factors muted beyond the range of the court’s ears.” | =, | | If challenged state action has a racially discrimina- tory effect, it violates the equal protection clause un- less a compelling and overriding legitimate state in- terest is demonstrated. This test’ is more easily ap- : plied,: more: fully implements the prohibition of the Fourteenth Amendment and has already gained firm root in the law. The Supreme Court has explicitly ap- _ plied this test to state criminal statutes which on their. face establish racial classifications. In 1964, striking - down a Florida criminal statute which forbade a man and woman of different races to. “habitually live in and occupy in the nighttime the same room,” the - Court stated in an opinion written by Justice White: _*The majority's test as stated in Emporia, supra, is as fol- - ; lows: “Is the primary purpose a benign one or is the claimed benign purpose merely a cover-up for racial discrimination?” | "The impracticability of the majority’s test is highlighted by the dilemma in which the District J udges found themselves in Scotland Neck: “In ascertaining such 4 subjective factor as motivation and intent, it is of course impossible for this Court to accurately state what proportion each of the above reasons played in the minds of the proponents of the bill, the legisla- tors or the voters of Scotland Neck * * *. United States v. Halifax County Board of Education, 314 F. Supp. 65, 72. (E.DN.C. 1970). _ re ee a eee 7 ~ . . 3la- _ Normally, the widest discretion is allowed the legislative judgment * * *; and normally that judgment is given the benefit of evéry conceiv- . able circumstance which might suffice to char- acterize the classification as reasonable rather than arbitrary and invidious. [Citations] But we deal here with a classification based upon the race of the participants, which must be viewed in light of the historical fact that the was to eliminate racial discrimination emanat- ing from official sources in the States. This strong policy renders racial classifications “con- stitutionally suspect,” Bolling v. Sharpe, 347 U.S. 497, 499; and subject to the most “rigid scrutiny,” Korematsu v. United States, 323 U.S. 214, 216; and ‘‘in most circumstances irrel- _ _ evant’’ to any constitutionally acceptable legis- lative purpose, Hirabayashi v. United States, | 320 U.S. 810, 100. ; McLaughlin v. Florida, 379 U.S. 184, 191-92 (1964). . Thus, the Court held that the proper test to apply in that case was “whether there clearly appears in the relevant’ materials some overriding statutory purpose requiring the proscription of the specified conduct when engaged in by a white and a Negro, but not otherwise.” Id. at 192 [emphasis added]. To the fur- ther argument that the Florida statute should be up- held because ancillary to and serving ‘the-same pur- — pose -as an anti-miscegenation statute presumed valid — for the purpose of the case, the Court replied: There is involved here an exercise of the state policé power which trenches upon the censtitu- _tionally protected freedom from invidious offi- cial discrimination ‘based on race. Such a law, even though enacted pursuant to a. valid state _, Interest, bears a heavy burden of. justification, . _ as we have said, and will be upheld only if it is \. _ central purpose of the Fourteenth Amendment: —-—~ ern 32a necessary, and.not merely rationally related, to . the accomplishment of a permissible state pol- — icy. Id. at 196 [emphasis added]. : There were no dissents in the MeLaughtin case. The _ two concurring opinions serve to underline and but- tress fiié test applied by the r majority. Justice ‘Harlan, Joining the Court’s opinion, added ; ‘I agree with the Court * * * that necessity, 7 not mere reasonable relationship, is the proper test, see ante, pp. 195-196. NAACP v. Alabama, 377 U.S. 288, 307-308; Saia v. New York, 334 U.S: 558, 562; Martin v. Struthers, 319 US. 141, 147; "Thornhill v. Alabama, 310 U.S. 88, 96; Schneider v. State, 308 U.S. 147, 161, 162, 164: | see McGowan v. Maryland, 366 US. 420, 466- . 467 (Frankfurter, J., concurring). The fact -that these cases arose under the principles of the First Amendment does not ' make them inapplicable here. Principles of free _ speech are carried to the States only through - the Fourteenth Amendment. The necessity test which developed to protect free speech against _ state infringement should be equally applicable . In a case involving state racial discrimination— prohibition of which lies at the very heart o the ~ _Fourteerith. Amendment. Td. at 197. Justice Stewart, speaking for himself and Justice Douglas, expressed: the view that the major- . ‘ity,’s test did not go far enough as applied to a crimi-_ nal statute because no overricme state purpose could exist. * * * T cannot conceive of a valid legislative . purpose under our Constitution for a state law which makes the color of a person’s skin the test of Whether his conduct is a criminal of- fense. * * * I think it is.simply not possible for a state law to be valid under our Constitu- _tion which makes the criminality of an act de- Pend upon _ race of the: ‘actor. Id. at 198. 33a Three years later the Court dealt with a Virginia statute prohibiting interracial marriages. The statute was determined to be unconstitutional under the Mc- ; Laughlin test, expressed here in these terms: “nm At the very least, the Equal Protection Clause demands ‘that racial classifications, especially — Suspect in criminal statutes, be subjected to the “most rigid serutiny,’’ Korematsu v. United States, 323 U.S. 214, 216 (1944), and, if they - are ever to be upheld, they must be shown to be . necessary to the accomplishment of some per- -missible state objective, independent of the ra- - eial discrimination which it was the object of: _ the Fourteenth Amendment to eliminate. * * * _. There is patently no legitimate overriding purpose independent of invidious racial dis- crimination which justifies this classification. Loving v. Virginia, 388 U.S. 1, 11 (1967) [emphasis - added]. Justice Stewart filed a separate concurring ~ _ opinion—reiterating his belief that’there could: never be a sufficiently compelling state purpose to justify a ' criminal statute based ‘on racial classification. Id. at 13. _ | | ) Although McLaughlin and Loving dealt with crirm- - inal statutes and express racial classifications; numer-_ ous lower court decisions apply the strict “‘compelling”’ or “overriding’’ purpose standard in the civil area as well as the criminal, and extend its application to facially neutral state action which, in reality, is racially discriminatory in its effect. The definitive case is Jackson v. Godwin, 400 F. 2d 529 (5th Cir. 1968), in which Judge Tuttle meticulously and exhaustively examines the lower court cases, including those “which _ have struck down rules and regulations which on their » face appear.to be non-discriminatory but which in practice and effect, if not purposeful design, impose 2 > 422-400—71—_4 _ 34a: . heavy burden on Negroes and not on whites, and oper- ate in a racially discriminatory manner.” Id. at 538—. 39 [emphasis added]. He concludes his analysis with this formulation of the constitutional standard: __ _ In both the areas of racial classification and discrimination and First Amendment freedoms, - we have pointed out that stringent standards — are to be applied to governmental restrictions in these areas, and rigid scrutiny must be | + brought to bedr on the justifications for en- “~~ eroachments on such rights. The State must _ strongly show some,substantial and controlling. - interest which requires the subordination or limitation of these important. constitutional rights, and which justifies their infringement, - [citations]; and in the absence of such compel- ling justification the state restrictions. are impermissible infringements of these funda- mental and preferred rights. Id. at 541. - The most recent application of the ‘‘compelling and overriding state interest’’ test is to be found in the Fifth.Circuit’s decision.in Hawkins v. Town of Shaw, FF. 2d (5th Cir. 1971). The plaintiffs, Negro resi- dents of Shaw, Mississippi, alleged racial discrim- ination by. town officials in the provision of various municipal services. The District. Court dismissed the complaint, applying a test akin. to that used by the ‘majority in this case: ‘If actions of public officials are shown to have rested upon rational considerations, irrespective of race or poverty, they are not within the -- eondemnation of the Fourteenth Amendment, and _ may not be properly condemned upon judicial review.” Hawkins v. Town of Shaw, 303 F . ‘ a” 455 ®, / 0a “2 ak . /. i thes’. consequences, coupled with’ the existence of the - ; racial motive, more. than offset the arguments ad- ‘vanced by, the residents of Emporia. The separation, _. with its. negative effects on the implementation of the’ eee Brinetyse of caches should be enjoined. — “ut SCOTLAND NECK SCHOOL .DISTRICT As the majority’s opinion Feeites, the history ‘of resistance to school desegregation in the Halifax , County schoal system parallels the history of the at- tempts on, the part of the residents of Scotland Neck ‘te obtain’ a. separate school: district. The. significant fact. is that in spite of otherwise apparently cogent arguments to ‘justify a separate system, the separate _ system goal was not realized until, as the result. of — pressure from the United States De ‘partment of Jais- tice, the Hatifax County, Board. agreed-to transfer the seventh and eighth grade black stude nts from the pre- _ viously all-black: Brawley School, outside the city limits of Seotland Neck; to the Scotland. Neé¢k School, previously all- white, Chapter 31° - followed ‘thereafter | as soon as the North Carolina. legislature met.-Ft is | significant also that the Halifax County Board re-. “neged on its: agreement with the Department of Jus- - There is apparent error in the computations “made by the district court in this regard. The district court found that the ‘net effect of the transfer plan would be to add 350 white stu- dents to. the city System. Added to the resident white students (399), the total is 749, not 759 as indicated in the opinion of the district. court. The district court’s figure. of 262 black ' students in the city under the transfer plan (a net loss of 34) appears correct. But when these two totals are subtracted from ° the figures given for the’ existing county system in. 1968-1969 (2,357 white, 8,196 black“and 102 PUMISE 52 the effects on the county are as shown above. : 03a” tors runs contrary to the creation of a small, separate school district for Scotland Neck. A study by the State of North Carolina indicates that a minimally acceptable district has 3,004,000 pupils. - On the facts I cannot find the citizens of Scotland Neck motivated by the benign purpose of providing ~ additional funds for their schools; patently they seek to blunt the mandate of Brown. Even if additional. financial support for schools was a substantial motive, the short answer is that a community should not be- permitted to buy its. way out of Brown. .Here again, the “heavy burden” imposed by Green has not been sustained. | | | | | IV LITTLETON-LAKE GASTON SCHOOL DISTRICT The majority’s opinion correctly and ‘adequately discloses the legislative response to ¢ourt-ordered compliance with Brown and its progeny, That re- sponse was the creation of the Warrenton City School District and the Littleon-Lake Gaston School District. ‘The overall effect of the creation of the Littleton- Lake Gaston district, the proposed tuition transfer plan, andXhe creation of the Warrenton City district (an act enjoined by the district court and not hefore us) would be to permit more than 4 out of 5 white _ Students to escape the heavily biack schools of Warren County. Even without. the transfer plan, the racial balance in the Littleton-Lake Gaston ‘district would show nearly 20% more white students than in the existing Warren Connty unit. To permit the subdi- | vision would be to, condone a devastating blow to the progress of school integration in this area. Despite the assertion of. the benign motives ‘of remedying long-standing financial inequities and the. HARD whee Yas Oey SPUR Steir egy Soha CAR Rs: . STARS oper: « o4a preservation. - of local schools, I agree with the ma- jority that the ‘primary’ purpose and effect of the legislation creating the Littheton-Lake Gastan school district was to carve out a refuge for white students and to preserve to the fullest possible extent segre- gated schools. Aside from questions: of motivation, the record shows that the new district was established to accommodate a. total of only 659 students, despite state policy to the contrary and expert opinion that its small size rendered it educationally not feasible. “And, as the majority \indicates, there ‘is no evidence that the residents of the Littleton area have been deprived of, their proportionate voice in the operation of the schools of Warren County. In short, there isa complete absence of persuasive argumenf in favor of the creation of the new district. . While I agree that the injunction ‘should stand, I ‘disagree that injunctive relief should be granted ‘only when racial motivation was the “primary” motive for the creation of the new district. Consistent with Green, we should adopt: the test urged by the govern- ment in Scotland Neck, i.e., to view the results of the severalice as if it were a part of a desegregation plan for the original system—that is, to de ‘termine whether the establishment of a new district would, in .some way, have an adverse impact on the desegregation of the ov erall system. By this test the injunction ST ae stand in the Littleton-Lake Gaston case, as well : in each of the two other cases, because in each of the three there is at least some racial motivation for. the _ separation and some. not ‘insubstantial alteration: of racial ratios, some . inherent del ay in achieving an immediate unitary system in all of the component parts, and an absence of compelling justific ation for: what is sought to be accomplished. 50a BUTZNER, Circuit Judge: This appeal involves the same case in which I decided questions concern- ‘ing the school board’s compliance with the Fourteenth Amendment when I served on the district court:* While the details. differ, the same basic issues re-. main—the validity of measures taken to disestablish a dual school system, to create a unitary system, and to assign pupils and faculty to achieve these ends. Title 28 U.S.C. § 47 provides: ‘‘No judge shall hear or determine an appeal from the decision ' of a case or issue-tried by him.” | Recently, Judge Craven carefully examined ‘this statute and the cases and authorities which cast light on it. He concluded that he should not sit on an appeal of a case in which he had participated as a district judge when the ultimate questions were the same: ‘‘what may a school board be ¢ elled to do to dis- mantle a dual system and’ imflement a unitary one, or how much school board action is enough?’’ See Swann v. Charlotte-Mecklenburg ‘Bd.: of Ed., 431 F. 2d 135, (4th Cir. 1970). Following the sound precédent established: by Judge Craven, I believe that I must ~ disqualify myself from participating in this appeal. “*See Wright v. County School Bd. of Greensville County, Vu.. 252 F. Supp. 378 (E.D. Va. 1966). Two other opinions were not published. : san STRIATE A COA MERE UT EEE Rake waerrwerg? Wr ahs SRY Meer OM Amg ES dreson me . DSS IYT reg aut RE Lye ASR OPUT ET Prone TNT et EDI q ‘ aT EME, SoM et: -APPENDI x C [Filed August 25, 1969, Samuel A. Howard, Clerk, US. District: Court, E. Dist. No. Car] In the’ United States District Court for the Eastern District of North Carolina, Wilson Division ~ No. 1128—Civil Unitep States OF AMERICA, PLAINTIFF Hauirax County Boarp or EpvcaTion, 4 -BODY COR- PORATE; ‘ERD I,. HARRISON, AS MAYOR OF THE TOWN OF Scor.aND Neck; J. A. ANDREWS, F. G. SHEARIN, ano J. I. Watston, D. E. Josey, IR, AS MEMBERS OF THE Board OF CoMMISSIONERS OF THE TOWN OF - Scortanp Neck; THE Town oF Scorianp NECK, ‘A’ _.,BODY- CORPORATE; AND THE ScoTnanp NEcK CITY Boarp oF EpvcaTIOX, A BODY CORPORATE, DEFENDANTS © ~ ee as _ ORDER | * LARKINS, District. Judge: This cause coming on to be heard before the Court on a motion for a pre- liminary injunction filed by the plaintiff pursuant to | | the provisions of Sections 407 (a) and (b) of the. Civil Rights Act of 1964,‘as codified, 42 U.S.C.A. ‘§ 2000c-6 (a) and (h). seeking to restrain the defend- ants from giving any force or effect to the provisions | of Chapter 31 of the North Carolina Session Laws of . 1969, an Act to establish a separate administrative unit for the. operation of the publie schools of the . " Fown of Scotland Neck, North Carolina: and due (56a) 57a notice having been given to the defendants: and: the - Court having considered the evidence and the argu- ' ment of counsel and being fully advised ‘in the prem- ises and it appearing to the Court that effectuation of the terms of the Act will result in the operation of the schools of Scotland Neck, North Carolina, and Halifax County, North Carolina, a racially discriminatory | basis to the irreparable damage of the U nited States . and the Negro pupils of Halifax County; and it fur- ther appearing to-the Court that no injunctive relief _as to ‘effectuation of the provisions of ‘Chapter 31 is - _ being sought .against the defendant Halifax County: Board of Education; and that the defendants Ferd L. i Harrison, as Mayor of*the Town of Scotland N eck, J. A. Andrews, F. G. Shearin, J. I. Walston, D. E. Josey, Jr., as members of the Board of Commissioners - of the Town. of Scotland Neck, and the Town of Seot- land Neck, a body corporate, are not proper parties to this action; It is, therfore, Orperep, ApsjupGED and DECREED: | 0 THat the motion to dismiss filed on belialf of. the -_ defendants Ferd L. Harrison, as Mayor of. the Town '. of:-Seotland Neck, J. A. Andrews, F. G. Shearin, J. I. Walston, D. E. Josey, Ji., as members of ‘the Board of Commissioners of the Town of Scotland Neck, and the Town of Scotland Neck, a body corporate, be, and . the same hereby. is allowed: and THAT the defendant Scotland Neck City Board of | - Education and its. officers, agents, employees and suc- cesSors are hereby enjoined from giving any force or - effect to the provisions of Chapter 31 and from taking any action pufsuant to the provisions of Chapter 31 pending a final determination on. the merits of the _ issues raised’ in the present action; and > THAT pursuant to the provisions of Rule 65(¢) of. the Federal Rules of Civil Procedure, no security shall - 58a . be required of the plaintiff, United States of America; and ~ THat this ORDER shall become effective as of 1: 00° Noon on Monday, August 25, 1969; and - THAT a Memorandum Opinion subsequently will he filed in this action; and | . THat the Clerk shall serve copies of this ORDER upon all counsel of record, and the defendants. . Let this ORDER be entered forthwith. - | JouHn. D. LaRKINS, JR., United States District Judge, ALGERNON L. BUTLER, United States District Judge. Ra LEIGH, NortH Caroiina, August 25, 1969. [Filed, August 25, 1969, Samuel A. Howard, Clerk, US. District Court, E. Dist. No. Car.] Tn the United States District Court for the Eastern . District of North-Carolina, Wilson. Division | ' No. 1128—Civ il Unitep States OF AMERICA, PLAINTIFF - . ° uv. . . ° - Hairax County Boarp or. Eptcation, 4 Bopy Cor- PORATE, AND THE SCOTLAND NECK Crry Boarp OF Epvcatios, A Bovy. CoRPORATE, DEFENDANTS . MEMORANDUM OPINION LARKINS, District Judge: This Court entered its - ORDER on August 25, 1969, effective at 12:00 noon. The Clerk served ‘ copies. of said ORDER upon. all defendants and counsel of f record. . ° 7 £ 39a . Pursuant to said Orprr this MEMoranptMm Oprxion _ sis filed in support of Said OrDER and is included. | therein by reference, a : | - This cause coming on to be heard before the United States District Judges for the Eastern District: of North Carolina, and being heard upom the motions - | of plaintiffs and additional plaintiffs for a prelimi-. " nary injunction and ‘for a declaratory judgment; and due notice having been given to all defendants ; and the: Court having considered the evidence, the stipulations, _ ‘the briefs and arguments of counsel, and’ being fulty - advised in the premises, makes the following:” . FINDINGS OF FACT 1. On March 3, 1969, the General Assembly of North Carolina ratified a measnre designated Chapter 31, Session Laws of North: Carolina 1969, e¢reating * the Scotland Neck City Administrative Unit in. Hali- 7 fax County to operate the public schools im said unit; providing that all public school property located within. the- unit’ should’ become the. property. of the unit; providing for a supplemental tax levy, and di- * recting a special election’ to authorize the establish- ment of said unit and the levying of said tax. The Voters approved said proposals. oO ; 2: The Board of Education of the Scotlald Neck City unit permits transfers of students‘ in and out. of said units. Seotland Neck City has established a tuition charge of $100.00 a year for the first child. —~ in a family, $25.00 for the second child, $25.00 for the third child, and each subsequent child per family free, for ll. students .transferring into said unit. 3. During the school year 1968-69, all the. publie schools of Halifax County Were “operated by the Halifax County: Board of ‘Edueation. There was a. 60a total of 10,655 students. The racial composition of | the county school system as approximately as fol- lows: White 2,357 (22% : Negro, 8,196 (787%), and \ * Indian, 102. 4. The Scotland Neck City unit has approximately — \ 695 resident students: White, 399 (57.4%) ; Negro, 296 (42.6%). The schog}p facilities within the Wit will accommodate approximately 1,000 students. Since the creation of the City unit under the 1969 Act, 350. - Whites, and 10 Negroes have transferred from. the county schools into the City unit; 44 Negroes in ~ the eleventh and twelfth grades have transferred from _ . the city to the’ ‘Brawley High School in the county system. The net effect on the City unit for. the school year 1969-70 is as follows: White, i (74%); Negro, 262 (26%). | 5. The racial composition of the soanky échool-sys- ' temas a result of, the creation of. the administrative - unit, and taking | into consideration the net effect of the transfers in and out of the systems, igs as follows: White, 1,598 (17%) ; ———. 8,186 (83%) ; Indian, 102. - CONCLUSIONS OF LAW 1. This Court has jurisdiction of ike parties and of the subject matter of this proceeding. | 2. Without determining the constitutionality of _ Chapter 31’ of the 1969 Session. Laws of North Caro- _ lina, the Act in its application cfeates a refuge for white students, and promotes segregated schools in _ Halifax. County. |. - 3. The Act impedes and defeats the Halifax — Béard of Education from. implementing its plan to completely desegregate all of\the publie ‘schools in Halifax. County by the opening of the school year _ 1969-70. " - i 6la | 4. Unless the‘ defendants are enjoined, the plaintiffs . Will suffer immediate and irreparable injury by the x / depriyation of their constitutional rights.. . a 2 ae — . John D. Larkins, Jr., \ a JOHN D. Larxiys, Jr, ~ | tO nited States District Judge. \ _ Raveien, Norrit Carorina, August 25,1969. L ( eT: i os | | . ° te KN . Md e )\ . 8 ra eas District of soon ‘Carolina, “1128—Civil pe Soko ge ~ [ Filed; , es 26, 1970, Nawal A. Howard, Clerk, -« - USB, District Court, E. Dist. No. Car. ] 2 eG NETED Srares OF AMERICA, (ORIGIN AL) PL AINTIFF- See aed eee pee tank Haurax ‘County Bian OF. » Epuéatioy, A BODY CORPO-’ : RATE; Ferrp L. Harrison, SS Mayor OF THE. TOWN OF- ~ ScéreanD Neck; J.: A. AnpRews, F. G. Siearty, -Frayk B. Suevps anv J. I. Watston, MEMBERS OF THE Boarp OF CoMMISSION ERS OF THE TOWN OF Scor- LAND, ‘Neck; AND THE TowN oF ScoTLaAND NECK, 4 PUBLIC. BODY CORPORATE (ORIGIN AL) DEFENDANTS = oe . and — “THe Siac’ Necx Cit¥ Boarp oF. Epvcatiox pA popt . is CORPORATE (ADDITION AL) DEFENDANT and : > Mamerni Ricuarpsow’ AND HER INFANT . CHILDREN”. ’ MonreNIa, TIMMIE, CHARLOTTE xSD JIMMY Rex .. “- ARDSON (Hatiwa’ InpIaNs), ON BEHALF OF- ‘SEVERAL ’ OTHER HUNDRED CITIZENS AND RESIDENTS OF Hauiax— County AND Warren Coun TY, NorrH Carouina - (ADDITION AL). DEFENDANTS ° ae ee a ee SY * % ee ‘et -(@2a), . = : - Rowerr Monaax, -ATToRNE? Guximat, OF NortH: CaRo- liNA- IN BEHALF OF THE STATE OF - ‘Nort CAROLINA Bh wanes DEFENDANT ean eee oe oe top . 4 , o cand» AGE : : ee é Parris Brack Cortoy, Epwarp M. Fraxers, AND ‘ _ OTHERS (ApDrTI0x AL) PLAIN TIFFS" and . ~via ie OvERM 4N, SUPERINTENDENT OF “Aatrax Cov NTY-ScHOOLs; THE BoARD OF CoMMISSIONERS OF* * HaLirax County ;.Scortanp Neck Crry Boarp oF : Epe CATION, -FRANKLIN, B. Batney, SUPERINTENDENT: ‘oe. ScoTLAND. Neck: Crry ScHooxs; Lrittieton-Lake ~ . GAsrox: ScHool. District anD RUSSELL N. MANNING,” SUPERINTENDENT OF LittLeton -LakE Gaston SCHOOL - DistRiCT; AND THE Nortu Caroma StvrE Boarp-or. Epvcation ; AnD Dr. Craic PHILLIPS, Nortu. Caro- .. LWA STATE: SUPERINTENDENT OF vee TSsTRUCTION | ce (anoeraama), ‘DEFENDANTS : eee “OPI NION AND ORDER . -LARKINS, District’ Judge:. ‘The iibieek: of ae opinion ahd one of the primary issues in this: case is the constitutionality of Chapter 31 of the: ‘North ‘Carolina Session Laws of 1969,* a’ local’ act ‘which | ‘Plaintiff, -in its andes, also chalet the coliitaiiin. ality of defendant Halifax County Board of Education’s pupil. , * assignment: plan on the grounds tliat the plan ‘failed.to establish - . unitary -non-racial school systém as required . by. the mandate ” of the United States Supreme Court. Furthermore, the status * ‘of the Haliwa Indians in the new ‘arrangement. of school Systems was’ raised by a complaint in intervention. permitted . - wo be filed by this Court on Octobei 30, 1969, on. “behalf ‘of the ~ several hundred Haliwa Indians residing in Halifax and War- - _ Ten Counties. Another third-party: complaint im: ‘intervention, = iq . oe ° . Be its EN EENIR IMENT SENET met aa {SYS RE YP tg SIGE His ss ; : i 64a oe | o z a ‘acela dak of the Halifax County. ‘North Caine 7 . - school system a separate administrative unit for the _ operation of the publie® schools in ‘Scotland Neck, ‘a town with a population ‘of approximately 3000 located plaintiff contends that the actsis uncgnstitutional and ‘that. its. implementation. should be permanent en- : joined because ‘the act’ is inconsistent with the State's . duty under the. Equal Protectioi. Clause of the Four-’ — teenth Amendment to dismanfle its dual school system. Defendants Scotland Neck City’: Board - of’ Edticatfon | ~ and the State of North ° Carolina contend that: the . . act Ww. rot violative of the- Fourteenth ‘Amendment to “the .United States Constitution as. interpreted by the — Court ‘of the United. States; > ‘This’ controversy came . before the court upon the filing of oT plaintiff's s complaint on “June 16, i969 , attacking the. ‘constitu- tionality of Chapter, 31 of the Séssion Laws of ‘1969 and seek-. at ing* to require the Halifax County Board of Education to "“desegregate its school system. Following a three-day hearing on. - _ plaintiff's. motion—for a. preliminary injunction in Raleigh, North Carolina, this. court, on August 1969, €nt tered a. ‘Memorandum Opinion and Order enjoining the Scotland Neck * City Board of: Edication additional defendants and its officers > and. agents, ete:, from: taking any. further action pursuant to the prov isions of Chapter 31 pans a final determination on filed as of January 9, 1970, by onic of this C ourt . two black ‘public school teachers in Halifax County and a number of sminor school children residing in the Scotland Neck City School — : System and ‘the Littleton-Lake-Gaston School System, made certain ‘allegations about the: treatment of black students” faculty members by the Halifax County Board of Education. _ None of the questions raised by these additional a = have yet been ruled on by the Court. ’ A . in the southeastern section.’ of* Halifax County. The® . : > the merits" of the constitutional questions raised by plaintiff's - a Pigs Mitte At, og e 8 aeg e. . . On October 30, 1969,. this Court. allowed certain named @ * Haliwa Indians to intervene and on November 3, 1969. this court entered an Order ‘allowing Robert B. “Morgan, Attorney -Genéral of North Carolina, to intervene as a. defendant “on behalf of the State of North, Carolina. Ape ee + On January 9, 1970 the court allowed the motion for: leave/ : _ to intervene on behalf of ‘Pattie Black. Cotton, Edward M/ ‘ ' Francis and pthers, and ordered additional defendants sn therein to plead” within’ 20 days. | et eS 3 Pol pis: court. scheduled a -hearin® on ‘the merits ‘of. _ the constitutionality of Chapter 31 and similar, ques-__ tions . in the case of Turner et al. v. Warren County Board of Education et ai., No. 1482, Raleigh Division, . for .Weidnesday, December 17, 1969, A trial. on tire “merit, iy this case and the Turner et al. Waren. - = County Board of Education et. al.case was conducted | 7 by this court on December 17 and 18, 1969. Following: the trial, this court ‘carefully considered the’ tran. ~- oa 8 _ ‘seripts, exhibits, briefs, depositions and arguments . q | .. of counsel; and, now® being fully advised in‘ the -.. §- t - p: - gy 4 ~ premises,-the court makes the following Findings of Fact and Conclusions of Law. *- vais : _ FINDINGS OF FACT * tion of approximately 3,000, is located ‘in’ the. south- i -fastern corner of Halifax Cot ity, a rural and” e _- Scotland Neck, a small town with a ‘present popula- i -~agricultural region of North Carolina which has a red lack population. The population of the _ ff. ‘ownitself. is approximately .50% white-and 50% . | . black... ee eS a a2 Pol “, The schools within the corporate limits of Scotland ~ - ; ‘eck were operated as a ‘city administrative unit ff 422-400-716 : | e 2 | . ‘Y ; ie : . | ar A | intil 1936 at which time they. became part of. the — ; ‘Halifax County unit pursuant to a- procedure au- - thorized by the General Statutes of North Carolina. The-cénstruction of the elementary schéol in 1903 and the high seffool in 1923 was financed entirély by. local _ a funds. . ee ee ie le es" Sic cate ce | Following. the -consolidatioti with Halifax County | in 1936, the schools of Scotland Neck were operated ~ las part of a dua] ‘school system, completely segregated, __|until 1965, at which timp the Halifax ‘County Board of Education adopted a\ freedom-pf-choice. plan for ‘the assignment of pupils.\The county maintained the = \freedom-of-choice assignment plan fOr the next three years during which’ a few\ black | students attended | eee ?- 66a... - 9 formerly’ all-white schools and no white students _ attended formerly all-black schools.. For example, du’. § “ing the 1967-68 school year, all of the owhite students - and 97%. of the black ‘students. attended sehools.pre- - viously maintained for their own races. In that year, : ‘10 of the 450 teachers in 18 schools were: assigned | -across racial lines. About 35° black students ‘attended the Scotland Neck schools during the 1967-68 school - year. 2 a pe oe zg .On July 27, 1968, the United States Department of - Justice, pursuant to its authority under Title IV of . the Civil Rights Act of 1964, sent the Halifax County _ Board of Education a “notice letter” which advised _ ‘that Halifax County had failed to- disestablish its dual: school, system and that additional steps should. he taken for the-Board to be in compliance with the — - United States Supreme Court’s decision in Green ¥. School Board of New Kent County, 391 U.S. 430, 8 * S. Ct. 1689, 20 L. Ed. 2d 716 (1968). Negotiations ensued - . “hetween the attorneys for the Justice Department 2 _'TFormerly -Article 18, Chapter 136, Public Laws 1923, now North Carolina General Statutes $$ 115-74 through: 115-78. . t . . ° . - . ° ee the Halifax: County School. Board, and a. tentative agreement was reached whereby. the Board would | _ disestablish the dual school system by the commence -. + ment of the 1969-70 school year and would implement. “certain intermédiatée™‘steps at the beginning of the © — 1968-69. school year. The Justice Department agreed. - : _ to withhold suit in consideration of the promises made a: We Boe pa eee | '_#he negotiations.and the Board’s promise to deseg-) ”.. regate “its schools were ‘well-publicized in ‘the’ local _ © press. The newspaper in Scotland Neck reported on August 9,.1968, that the county had. been ordered to end its dual school system and that there were several. f - forms of grade ‘organization, such as zoning or pairing \ © _. of schools, which would be more effective than the ~~ i. freedom-of-choice plan as a means of converting to a - - unitary non-racial school system. The. portion of. the agreement which affected the Scotland Neck schools, that is, the proposed -conibining of the seventh: and — eighth grades of the previously. all-black Brawley school, just outside the corporate limits of Scotland’—7 _Neck, with ‘the all-whitejunior high, was also publi- ; ~ eed in the Scotland Neck newspaper on August 16,. | -On ‘or about July 1, 1968, in anticipation of their. obligation to: comply with the Green decision, the ."Halifax County Board of Education ‘asked the North Carolina ‘Department of Publie Instruction to con-. ~ duct a school atin tis Oc latidear'ates dace senoeeect os : € Board to meet its desegregation obligations ~ _ _ and to recommend “the most effective organizational . patterns for the county’ schools in order to insure the. best education possible for the children.”? The survey, - prepared in response to the request, was completed _ _ In December 1968. It recommended as an Interim Plan a 4 combination of geographic zoning with grade reorga-- RRR MRI No . ewe Deedee a **y foe: ing the plan. (Shields Deposition, pp. om). 68a - ‘.. nizations at some schools, inchiding the pairing of the | predominantly: . white Scotland. Neck schopl and the ~ all-black Brawley school with respect to.€é1 in grades, ‘The Long Range pl a proposed four rillion dollar bond issue. The survey . - - also’ recommended that the ¢otinty schools be. con. ae " solidatéd with the schools i in the city units of Roanoke ° Rapids and Weldon (two city: ‘administrative units also. located... within | Halifax County). The Halifax , County Board. of Education subsequently declined to implement | the plan.which would: have. resulted vm majority of black students in_ 17 of the 18 * schools in in. : _The-tegislative pill pr oposing the chested! of’ a sepa: “rate administrative unit for.the schools. of. Scotland - Neck, According * to its proponetits, was designed in - response. to ‘Seotland Neck residents’ dissatisfaetion’ With’ way invwhich the Halifax’ County Board of - Education had allowed the schools ‘in Scotland Neck. . to deteriorate. Only\one county-wide school bond issue ' had passed sinice 1936; and that was in 1957. At that time, the separate units\in es Roanoke Rapids and Wel- don, -on a per-pupil basis;réceived a total of $1,020, * 000, and Halifax County received - $1, 980,000: for - . eapital. outlay. None of the proctells of the bond i issue _. Was spent on any schools within the corporate. limits of Scotland Neck. If the Seotland Neck schools had _ been operated ° as a oe unit at. that: time, the unit — - - 3Mr. Franklin P. Shields, a ‘ saclivedd of Scotland Neck and chairman of the Scotland Neck City Board of Education, testi- - fied on deposition that he felt public opinion was against the . Interim. Plan because the people did not generally understand "it, because they were generally: opposed to change of any kind and because there were administrative difficulties in implement: 7 ee ; 3 60a sits ae oem ee would. have received “approximately $190,000. as its _ proportionate share of the bond proceeds. . ' . In 1963, as a result of :the:latest state-wide bond .- _ issue, thie Halifax’ County. Board, of Education re-_—~} - +. ¢eived a total of $950,000 as its proportionate “eof _ © the proceeds. Mr, W.- Henry Overman, Supefintendent — ». of the Halifax County schools, testified ‘on deposition _ that.none of ‘this money _had been spent or committed. _ fer any school within the corporate limits-of Scotland.” Neck. (Overman’s Deposition, pp. 184, 187.): He also - _-testified that Halifax County: has gradually reduced _ the annual capital. outlay tax. foi the’schools from 63. _eents per $100 valuation in 1957 to 27.5 éents per $100. _ valuation in the latest fiscal year,. (Overman’s Deposi-_ : *, fon, Dp. 204-2056 rf = .. In 1963, some of the leaders of Scotl to formulate ‘plans for-the creation _ ministrative unit for the schools of - . weré not able -to” crystallize the: tive bill prior to the expirati jee ye oe nd Neck began - - f a separate ad- ~ cotland Neck but: _ plans into a legisla-.. of the 1963 session of the North Carolina. legislature. In: 1965, the ‘propo- nents: of a separate administrative unit did formulate Ss a bill which would have: provided for a separate unit fer the administration of the-schools in Scotland Neck - and the four.surrounding townships and would have ~ Provided for a supplemental tax of 25. cents on each — _ $100 valuation throughout the ney school district. The ~ bill:passed ‘the House of Representatives but was de- ‘feated by the Senate, and it was the opinion of many | in the Scotland Neck area that -the defeat had been -’ caused by the pressure of individuals residing in the - sprships outside the corporate limits. of Scotland ee ee, Ree rae _In 1966, prompted by Mr. Henry Harrison, the only '_ resident of Scotland Neck who was a member of. the Halifax County Board of Education, a delegation con- -~ a ie dating of Mr. Histon: Mr: GM} ‘Meune, chatted e of the ‘Halifax County Board’ ‘of Edueation, ‘and Mr. . : Overman, Superintendent of, the Halifax County — schools, met with Dr. Pearce and-some other staff — members in the office of the North: Carolina Superin- - tendent of’ Public Instruction, the Division of School: | Planning, to ‘get ‘approval - for the ‘construction of-a zs - new high school and gymnasium in Seotland Neck to:re- | i -place the old high school and the building being used as ” “a ‘combination auditorium. and ‘gymnasium.: The: new : facilities would have been‘completely integrated. The. Halifax County Board of Education supported the re- - quested construction for Scotland Neck, but it was not ‘ approved -by the Division of School Planning. (Over. a man’s Deposition, pp. 178-180). . In 1968; the leaders of Séotland Keek again "bevah ~~ to make plans for the creation of a separate adminis- ~~ trative unit for the-operation of the Seotland Neck ~ schools. This time they plannéd to limit the boundaries. of the new district to the town limits of Scotland Neck - eeause of the feeling that it was the residents 6f the , area ‘outside Scotland Neck who had contributed to ~ the defeat of The bill.in 1965. In November 1968; a - group consisting of Frank Shields; the future chair- man of the Scotland Neck City Board of Education, C.; Kitchen Josey,- Henry Harrison, . and Thorne Gregory; the State representative from the area, visited the Tryon.City unit, at that time the smallest sghool unit-in the State with 823 students enrolled during the 1968-69 .school year. At that time, 974 pupils were attending | the/schools within the corpo . rate limtts of Scotland Neck, and it was expected that, - with.transfers, any new. administrative unit would - have approximately the same number of pupils. It was - ee ‘felt. that the Tryon City school was stiperior to any school i in Halifax County, ——— 4th ont om ass units , SM a eae ; Mea A A iy e ts e 2 in the State: in percentage of high school\graduates | attending college, 31st in pupil-teacher ratioand.12th °. - in library books per pupil. The tax | of Tryon was - * " Gpproximately the same as the tax base of Scotland. . _ Neck, .and the ‘Tryon unit also had .a supplementary. ‘tax of 50 cents pér $100 valuation, The group received. _ \ cotland Neck (Shields’ Deposition; _ aeopy of the Tryon. budget and the éurrieulum and _, diseussed with the Tryon officials the amount of money. needed to operate the system. The trip avas primarily = | - to'study the > feasibility of creating the sep- = arate unit in’ pS pp. 11-12, 59-60). The Sectland Neck leaders talked to. - - _ no other professional educators (with the exception of “ | 7 - State Superintendent Craig: Phillips, who opposed the Se - ereation of a new unit) and conducted.no other studies’ °° _ before proposing the introdiiction of a Dill in the State _ legislature. (Henry Harrison’s Deposition, pp. 57-9). 6 Mae actual bill eteating the separate unit in Scot- , _-land Néck.was drafted by the North: Carolina Attor-, ~~ ney General’s: offica, and. was -introduced as House / Bill No. 22. ‘After recéiving’ the approval of. the. House. Education Committee, the House. Finance. é Committee and the Senate Finance Committee; the - ~ bill passed both. houses. by ‘a sulistantial majority and was ratified as: Chapter. 31 of the North Carolina Ses- sion Lawson March 3,1969 Chapter *The actual tifle of Chapter 31 was: “An’ act to improve | and provide publi¢ schools of a higher standard for the resi- dents of Scotland Neck in ‘Halifax County. ‘To establish the.” ‘Scotland Neck City admininstrative unit, to provide for the ‘administration of the public schools. in said .administrative _ unit, to levy a special tax for the public schools of said admin- subject to the approval. of. , - the voters in a referendtim or special election.” - | Ss istrative unit, all of which shall be a “31 was a local: act which authorized the ° . creation of a separate” public school administrative. eae os ep walk: to be knowin: as ‘ie Svotland Neck. City Adminis: ae = trative Unit pending: approval. by a. Majority of the _ + Voters of Scotland Neck ip a special: election. tov-be held on April:8, 1969. The act also provided.that, upon ~ such approval, a special tax. of .50 cents -per- $100 ’ yaluation be leviedson. ‘property within. the corporate ‘limits of Scotland Neck, the school properties: w ithin. ee the new. s¥stem, and ali funds ‘allocated for the: opera- e4 ae tion’ of such schools be: ‘transterfed from the. Halifax. County Board of _Eduéation’ to the new ‘syStem and - ': that the Mayor and Board of Commissioners of Seot- _ ~. land Neck be required to appoint a Board of. Eduea- ~. tion to administer the hew system. Chapter 31 became opérative on. Apr il 8, 1969 upon a the approval of ‘a majority of the voters of Seotland _ . Neck. Of the 1305 registered voters, ina large. turn out, 813 voted for approval, and 332 voted against the >. - ‘act. (Ferd Harrison's Deposition, pp.-16+21). There was.a mixed reaction to the bill by educator: nd the people of Halifax County. Most of the white - leaders of Scotland Neck supported the: bill. Mr. W, * Henry Overman, -Superintefdent of . the. Halifax | : County Schools, was opposed to the ‘bill. (Henry Har- rison’s .Deposition, p. 12). Negro groups, specifically, ene led-by a Reverend Beloatche, generally opposed . _ - the will, (Deporstion of Aubrey Pow ell, begs member . of the Scotland Neck. school board, 18)... Craig. Phillips, “State Swperintendent of. Public Tnstriie tion -and the‘only professional educator to testify against, - | _ 2 the bill in the legislature, 6pposed it on the grounds . that. it’ was contrary to-the trend of: censolidating school districts - (Rhillips” Deposition, p. 23), and beeause the number of studenits in the ynit woiild be le SS than the number whieh . he: thought should be a min imium. for the efficient whey of-a school unit." ~ (Phillips’ Deposition, Pp. 58, 59, , 81-88). Mo XG. | - Pe sproval of the act by the voters Rae : k ~ land Neck, ‘the - the. Town appointed a five-member Board of Eduea- * tion. The. Board ‘then hired: Franklin’ B. Bailey: as °° superintendent, approximated. the student enrollmé rtf For the. 1969-70 schoo] “Year and hired teachers. Phe e Board also had a preregistration for students, estab. . § lished a curriculum; set-up an athletic program and... " The. collection of the tax of course ceased when this Court's preliminary injunction. was ‘entered against further implemen-.- tation of ‘Chapter 3 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0052%3A03. Public record. Not legal advice.