Petitioners Brief — United States v. Scotland Neck City Bd. of Ed.

Supreme Court brief1972

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OPY ‘In THE o 44 a oat © : :

rete Court uf the United Sia ron US

a 4 OvtoseR Term, 1971,

| *\ - ? - No. 70- 187 : . a " DEC 4 197] |

E ROBERT SEAVER, CLERK

Parr BLack Corrox, et al.

| as ‘Petitioners,

Scortanp Neck. Ciry Boarp or Epvcartion, et al.

° e . . . 2 ;

: ON WRIT OF CERTIOR ARI TO THE

UNITED STATES COURT OF ‘APPE ALS FOR THE FOURTH CIRCUIT ~

= ee

- BRIEF FOR. PETITIONERS: .—

JACK GREENBERG

. James M. Nasrrr, IIT

Norman J. CHACHKIN

<F & 10 Columbus Circle |

mo | . New York, N. Y. 10019

_ J, LeVonne CHAMBERS «©

| _. “am 237 West Trade Street.

x. ““Chartotte, N. C. 282025,

Avam Srent

157 East Rosemary, Street :

- Chapel Hill, NC. 27514

James R. WaALgeER,, JR. |

- "i hes end eh 501 West Third Street

oe) ag : a Weldon, N. C. 27890

. + Samver S. MrrcHern ax

126% Bast Hargett Street -

Raleigh, N. C. 27601.

Some es Attorneys for Petitioners

TABLE OF CONTENTS

| PAGE

Opinions Below ...... ener mowevnensnpenrenatenseegeenennsbeesves Semceneneiden jesse | 1.

Jurisdiction svenseeseseess filet etesecstsideseens Pete |

Questions Presented ........scescceeceecceseoeeceeeseeeenes eee eeeneees 2

. Constitutional and Statutéry Provisions Involved ........ | 2

Statement i penne sep aaianesiintntne wanes . 2

1. Proceedings Below ewinlnnnness ae _ 2

2. The Public Schools in Halifax County and a

Scotland Neck Prior to 1968-69 or 6)

: 3. Department of Justice Intervention veeveewneeeeeeeee 8

“4, The State Consolidation and Desegregation

Plan . spsieensieepeineoiaciits ~~ a

3. Chapter 31—The Scotland Neck Bill... 11 7

.a, The Purpose of Chapter | 4 12

- b, The Effects of Chapter 31... “14

- 6. Events Subsequent to the Preliminary Injune- :

tion ..

, ARGUMENT—

The District Court Correctly Enjoined the Divi-.

sion of Halifax County’s System into’ Two Sep-

arate Units Where the Changed Boundaries Would

Impede Desegregation and Where Formerly Ig-

noring Such Boundaries: Was. Instrumental in

Promoting ‘Segregation

Introduction and Sunimary of Argument

1 The District Court Correetly Evaluated the '

Proposed Scotland ‘Neck Secession in Terms -

Its. Effectiveness in Dismantling School

Segregation in Easterf Halifax County .......

Il. The Separation of Scotland Neck. From the

Halifax County School System Impedes De-

- segregation of the Schools Involved -...........

Organization, of the Dual. System in Scot-

~ Jamd Neck Area .2.........----ececeeeeeseeeeeeceeceeaten

‘Brawley

CoNCLUSION

The Interim Plan ............

‘The Assignment Pattern If Scotland Neck

Secedes; the sere Shaped: Zone for

. The Effect of Hevesaion’ + on Brawley and

.. District I.

The Interdistrict Transfer Plans ee

‘Other Effects of the Secession of Scotland

Neck ietelietitnpeiaseaagaencgnciescmmainastines .

‘ili

_TasBLE oF AUTHORITIES

. Cases: oc - “PAGE

“Alexander v. Holmes County Board of. Rdueation, 396 :

US. 19 (1969) _ wnsosenseceponeoseptassnedienenaeed Bachan nate teceneee 23

“+ Ayteh v, Mitchel, 320 F, Supp. 1372 (ED. Ark. 1971) 99.

Brown \ V: Board of Education, 347 U S. 483 (1954) . 20, 29,

29, 33, 46,51 -

_ Brown v. Board of Baueation, 349 US. 294 (1955) 20, $s

Brown. vy. South Carolina State "Board of Pacecisen.’

296 F, Supp. 199 (D. S.C. — aff'd, 393 U.S. 222

(1968) -nno-n-noonveseeeeeenieee ones wteonenecens Se todieeeee pecs aera 50

aso v: Board of. Trusteés of School District No. 1, .

‘Clarendon County, S. C., 429 F.2d 830 (4th Cir. 1970) 51

Buckner v., ‘County School Board of Greene County, ;

Va., 332 F.2d 452 (4th Cir. 1964) groveneneeees itemaiesnns 36.

Burleson v. County Board of. Election Commissioners 7

of Jefferson County, 308 F. Supp. 352. (E.D. Ark. -

1970), affirmed, 432 F.2d. 1356 (8th Cir. 1970) ........... 29

Bush v, Orleans Parish School Board, 190 F. Supp. 861

(E.D. La. 1960), affirmed. sub nom. City of New _

Orleans v. Bush, 366 US. 212 (1961) 2. 28

Carter vy, West Feliciana Parish School Board, 396 U. S. -

MOO TITO) aap orp Sieuatinel ae

— Coffey v. State. Education Finance - ‘Commission, 296

F. Supp. 1389. (S.D. Mine. TQGO) 252s cscs ncecnetese . 50

Cooper v. "Aaron, 358 Bie 8. 5 | (1958) . :

; PAGE.

». Corbin v. County School Board of Pulaski County, Va, :

177 F.2d 924 (4th Cir. 1949) o.oo eecee ceed lecceeseneteectel.. “%

Crisp v. County School Board of Pulaski Coutity, Va.

(WD. Va. 1960), 5 Race:Rel: L. Rep. Seam %

Dav is v. Board of School — Comuissioners of Mobile, -«) o

402 U.S. 33 (1971) os... wptneneenetcttennnnn --21, 22, 2, :

Evans v. Buchanan, 207 F. Supp, 83 (D. Del. =

oeeeeeee

. Goins Vv. County School Board of Gray son Genes Va.; |

186 F. Supp. 753 (W.D. Va. 1960), stay denied, 282

- B.2d 343 (4th Cir. 1960) tenner, |

Goimillion v. Lizhtfoot, 364 U S. 339 (1960) .. sieiigicedaas 23, 39

' Green v. County, School Board of New Kent County, 391 2

USS. 480. (1968) sie SR a 6, 8, 12,.16, 22, 23, 20; 32, ai |

' Griffin v. ‘Board of Education of. Yancey County, 186

ae Sane. 511 (W.D. NC. 1960) saab oa Oe acl aeae

- Griffin v. School Board, 377 U.S, 218 (1964) 28,0:

Griffin v. State Board of Education, 296 F. Supp. 1178 <

— Va.’ 1969) nei asiecshucncoieele sanctus coFlecncceceeceeneeenecet cio

_ Hall v. St. “Helena Parish School Board, 197 B. saa a

- 649 (E.D. La. 1961), aff'd, 368 US, 516s. a0

Hiway v. County Board of Education of Sev ‘ier County, ©

Ark., 410 F.2d 920 (8th City 1969), 2-2 ancinnninen sia |

Haw kins v. North Caroling State Board of Education,

11 Race ace L. Rep. 185. Bsr a Cc March 31,

ate, - tae ee = alge aegis eee 0.

Jee Y. wens of Morris School. District, ae

N.J. 483, 279 A.2d 619 (1971)... "ee Slane i 3

pats | "PAGE

~ Lee vy. Macon County Board of Education, 267 F Supp. _

458 (M.D. Ala. . 1967), aff'd, sub nom. Wallace v.

United States, 389 U.S: 2g 1967) 50

_ Lee v. Macon County Board of Education, 448. F.2d

16 Ce Gr, 19). venleseerseesee-20, 29, 30, 31,52

Lee v. Nyquist, 318 F. Supp. 710 (w. D. N as 1970,

"affirmed per curiam, 402 U SS. 935- (1971). ecceeceeeeeeeeeetiesen 49

Missouri ex sd Gaines. v. Canada, 305 U.S. 337 (1938) - 36

_ Monree v. Board of. Commissioners, $91 U. ~ 450 (1969) 22,

North Carolina State weer of Education v. Swann, 402 .

US. 43 (ort) : So chicane ercnctiiietonsel "een |e 30, 49

Poinidexior v. Louisiana Financial Assistance Commis- -

sion, 275 F. Supp. 833 (E.D, La. sates aff’d_389 U.S. :

S71 (1968) ........-- PUN REE ane $e sibnioiersinteee 50.

. Poindexter ¥; Louisiana Financial Knsintenien Commis-_

J. *. sion, 296 F. Supp. 686 vas D: La. 1968), aff’d, 393 U. S.

16 ( (1968)-. snculieokcrebeoekciciasd PMR ES SOD pntaelbiaaceanetcs ‘* 50

tiers Board of Education, 391 U. S. 443 ( 1968) wo , 37

School Board of Wires Coukie. Va. Vv. Kilby, 259 F. 2d a e

497 (4th Cir. og oe ee ee

Sloan v. Tenth School District ‘of Wilson County, Tenn., -

433 F.2d 587 (6th Cir. 1970) : a — Silat seciaccsstatde 29

‘Stout v. Jefferson eae Board of Edneation, 448 F.2d

- 403 (5th Cir, 1971)

_ Swann vy, Charlotte-Mecklenburg Boaraat Rdasstion, ee

402 U.S.1 call aes --------20, 21, 22, 24, 42, 44,45, 46, 49, 52 |

"PAGE

Turner v: Littleton talks: Gaston School District, 449

F.2d 584 (4th Cir. 1971) ...... coseceenesizeastesensenesenotereece ry :

“‘Tarner: v. Warren County Board of. Education, 313°

KF ‘Supp. *380 (E.D. N.C, 1970), affirmed sub nom.

Turner v. Littleton Lake Gaston School District, 449

F.2d 584 (4th Cir. 191) hii neiaiscelechelinatenmetiese Sociiecia aa

. United’ States v. Bright ‘Star School District +6, un-.

reported, W.D. Ark., No; T-69-C-24, April 15, 1970 ..- 30

| United States v, Crockett County. Board of Education,

oe unreported, W.D. Tenn., C.A. No. (1663, May 15, 1967 i.)

United States v. Halifax County henst of ieapeiitien;

314 F. Supp. 65 (E.D. N.C: 1970) -....... atl, 9, 13, 14, 17, 5

Pos United States v. Tietnen. 225 F. Supp. 353 (E.D. La

1963), affirmed, 380 U.S. 145 (1965) enn DY

‘United States. v. _ Scotland Neck City Board of ‘Bduea-’ ae

- tion, No. I sak ec onmifhiegenon OA

United States v. Scotland Neck City Board of Baues-

_ tion, 442 F.2d 575 (eh Cie. 1971) sane], 26, 29

United States v. Texas, 321 F. Supp. 1043 .(E.D, Tex. :

me 1970), affirmed, 447 F.2d 441 (5th Cir. 1971)... 29

' United States: v. ‘Tunica County School District, 993:

F. Supp. 1019 (N.D., Miss. 1970), aff'd, 440 F.2d 1236

(5th Cir, 1971). SEAS ARLEN Oa SPONSE AREER i

“Walker v. County School Board of Floyd Comte, Va

(W.D. Va. 1960), 5 Race Rel. L. Rep. 714 «2... B

Wright v. Council of. City of: ‘Emporia, 449 F.2d 570 S

2 ee 5, 26,29, 41,4

W right v. Council of City of Emporia, ia het seve na

vii ,

‘Statutes : os ‘ a ; _ “PAGE |

98 U.S.€. section 1254(1) oo. in ane ae | 2

1969 Session Laws of North Carolina, Chapter 31. .2, 3, 4, 27

NC. Gen. Stat. § 115. 163 Me ee a ae

Other Authorities: |

U.S. Bureau of the Census, U, S, Céndus of Popula-

tion: .1970 GENERAL _Popunatton CHARACTERISTICS,

North Carolina ....27 2.0... posootees on ee ie ectncgs 40

_In THE 3

ban Gait nf. the Buited States:

OcroBER Tenm, 1971 =o

ry | a * No. 70-187... 27 ,

\- é

Part Biack Corrox, ef al.,

, Petitioners,

2 oF Sy 4 ea ‘ - 2! ‘

’ ° . : ry

‘~~ §cortanp Neox City Boarp vor Epvucation, et al.

0 i

ON WRIT OF CHRTIORARI TO THE eee,

UNITED STATES. COURT OF: APPEALS FOR THE FOURTH crourr :

BRIEF FOR PETITIONERS

Omani Below

— The opinion of ‘the Court of Appeals (A. 1104) is Te-

ported sub nom. United States v. Scotland. Neck City Board

of Education, 442 F:2d 575 (4th Cir. 1971). Dissenting opin-.

ons by Judges: Winter ngs Sobeloff are reported at 442

' P2d. 588 and 442 F.2d 593. ,

- The opinion of the United States District Court for re

_ Eastern District of North Carolina (A. 1062) is reported _

sub nom. United States v.| Halifax Coenty Board of Educa- |

tion, 314 F. Supp. 65. ae. , we. 1970).

rue

Pal

_ Sarisdiction :

The judgment oft the Court of Appeals wi was entered d March

4 23,1971. The petition for cettiorari was filed May 20, 1971,

+. . + and was granted on October 12, 1974.The case was. con- -

: > solidated with United States ve ‘Scotland Neck City Board -

ae Education, No. 70-130, ‘in which certiorari ‘Ww as~also

granted October 12, 1971. The jurisdiction of the Court as

rests” on 28 “ S. C. ‘section sit are . ;

& : ee : Saag a f

- Questions Presented.

“ee ea

Whether the Court of Appéals@rred by holding that néw

9g school districts may be formed which divide a unit that is"

a ¢ faced with the duty te desegregate a dual system where

:: the changed boundaries result in less desegregation and

a where. formerly. the: absence of such boundaries: was imstru-

a int or segregation.

iL AAS .

: ts Constitutioinal and Statutory F Provisions Involved

od This case. inyéives the constitutionality of Chapter 31 :

of the 1969 Session Laws of North Carolina which is set.

out in the eppaidiix to this = pp. 16b, et seq.

. 2. 3 case. also: rates Section 1 of the Fourteenth —

Amen ent to the sencaneatan of the Upited States. eoigae

3 : ; _ Statement , J

This case (consolidated here: with, No. 710-130, “United

States v. Scotland Neck City Board of Education) involves

A the desegregation of. the. public schools operated by, the .

et Halifax County mare as Education in North resaninane ,

: : Be , : 8

oS The school system of ‘some eighteen schools’ and slightly

-” moré thai? 10,600 pupils (in 1968-69) embraces a rural area

and a number. of small, towns such as Scotland: Neck, a -§

*.community with about 695 resident -pupils:. The county

has long maintained: a dual system ‘of racially segre--_

_ gated schools, and while the ‘county school board was en-

_ gaged in negotiating with the United States Department

~_: -of Justice’ about a desegregation ‘plan, -local - citizens ob- &

tained_passage of Chapter 31 of the 1969-Session Laws of :

North Carolina,which created a’ new “independent school

system for the ‘town ‘of ‘Scotland Neck and ‘thus separated ©

. the town and ‘its one schol from the county school: system

.. and its. desegregation plans. This case involves the.con-’ :s

stitutionality of Chapter.31 in the context of the desegre-. 3

- - gation proc: 5 <> P-

~The complaint (A. 26 and , amendment at. A 62) was"

. filed by the United States on June 16, 1969, in the Eastern .

District of North Carolina seeking the desegregation of

_ the schools. by.a more effective method than “the: freédm .- |

of choice’ plan then in effect, and seeking an.injunction |.

against Chapter 31 on the ground that it interfered with

‘denied equal protection of the laws to Negro studeiits.

_ Petitioners Patty Black Cotton, et al. are Negro pupils,

~ parents and teachers who were permitted to intervene as

plaintiffs.. The Halifax County Board of Banethion, the

Scotland Neck City Board of Education, the Mayor and

: _. Commissioners of Scotland Neck and the Town of Scotland |

Neck were named as defendants, and several: other state

‘and local officials were later added as defendants.

. After -a three day hearing the district court entered ‘a

-* preliminary injunction on. August 25, 1969, restraining

- implementation of Chapter 31 (A. 790). On May 26, 1970,

_a final injunction was entered (A. 1084), the district court

eG EBLE SNE TS! ee 9

2 _ desegregation of the public schools of Halifax County and ©

5 +. :

p, 3

! holding that etre 31 was. ; unconstitutional ‘under the »

_ Equal Protection: Clause. of the Fourteerith Amendment

= because it “was enacted with the effect of creating a refuge

~ for white students of the Halifax: County School system”s, -

__ (A. 1083). The district court order was, accompanied by °

a long ‘and detailed opinion setting forth complete. findings. ©

of fact. The opmion by Judge Larkins ‘was concurred in |

% ’ by Chief -J udge Butler who sat to hear a related case.

involving: similar questions relating to the creation of two

|. new school districts—Littleton-Lake Gaston. and’ ‘Warren- °

§ . ton—in neighboring: Warren. County located: just west of _

Halifax: (For. the general location of the several districts

| “gee Map T in ‘Petitioners’ Brief Appendix. of Maps, Tables. °

_- and Statutes. 1 Map I algo shows nearby Emporia, Virginia :

- involved in companion case,. Wright v. Council of City

2 of: Emporia, No. 70-188.) : :

; Fhe Fourth Circuit,. sitting en banc, reversed the 3 injune-

B “tions with Judges. Sobeloff and Winter dissenting. The

--@pinion of-the court by Judge Craven- upheld Chapter 31,.

concluding that the primary purpose of the law “was not:

to invidiously discriminate against black_stndent§.” (442 .

F.2d at 582.)> In the companion ‘ease involving Emporia,

Virginia, Judge Craven set out the legal rule’ applied to

“decide | these cases in ‘the following language:

If the création 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 —

_. eourts should not interfere. If; however, the primary

purpose for creating a new school district i is to retain

‘as much of separation of the races ag possible, the

state ‘has violated its atirmative constitutional duty °

a a This Brief Appendix is s hereinafter referred to as s “Maps aid»

; Tables. “ : ees a

. :

' °

p : 5

‘+ to.end, state supported school segregation. The test.

‘+ is much easier to. state that it is to apply. (Wright v

- Council of City of Emporia, 442 Fas. 570, 572 (4th

Cir. a 1).) :

the Court of Appeals held ‘that the o effect of the separa-

. tion of Scotland ‘Neck schdols-and students on the desegre-.

” gation of the remainder of the county system was

_ “minimal” and that the shift in racial percentages .was . F

. Susainads a “substantial change”. (442 F.2d. at 982). .

. The Court of Appeals held that the transfer plan ‘addpted - F

_ by the Scotland Neck ‘school board immediately. after. its )

creation—by which 350' white and 10 black pupils would .

transfer into the“unit-from Halifax: County: and 44 black -) -

pupils‘ would transfer out of. Scotland , Neck to attend |.

' Brayley School—“would have tended toward the establish-- 7

‘ment of a resegregated system” and did. violate the equal -F..

protection clause of the Fourteenth Amendment, (442 F.2d ££

‘at 583), but found the transfer plan of “no rélevanice” .

“to the constitutionality- -of Chapter 31 because it said that

.. the legislature did not® know that such a plan would be |

—adopted (442 F. 2d. at: 581-58 582, note 3).:In so doing, the

Court of Appeals ignored ‘findings to. the contrary by the

. district court (314 F. Supp. at 69). :

:' Phe Court, of Appeals’ contradiction. of the district week

- finding in: this regard is significant ‘since the, Court of.

- Appeals upheld an injunction in the companion ease in-

ae Littleton-Lake Gaston hecause the record, in that

cease indicated legislative . ‘awareness..of a comparable

- Turner v. Littleton Lake Gaston. School.

District, 442 F. 2d 584 (4th Cir: 1971). )

Petitions for certiorari filed by. the. United States and’ &

* the. aves —" were’ granted October: 12, 1971.

aa one SP eee 5 : ya

oe | : : : . +;

: als Court of Appeals has stayed the. effectiveriess of its. .

mandate pending this. Courts’ decision, and thus the imple- . ©

mentation of Chapter 31 is still enjoined.. : oR i |

2, The ‘Public%Schoois in ine Halifax Counts and Scotland Neck —

» ;Prior to 1968-69 a

_ _* | Until the’ creation: of the Scotland Neck Administrative

Unit by the North Carolina General Assembly on March 3,

pe 1969 and by the vote of the residents of Scotland Neck

on April 8, 1969, the Halif * County Board of Education

administered all of the ‘schools in the gounty except for .

oO areas on’ the northern border of the County. (See Map |

‘Il, Maps. and Tables). ‘During the 1968-69 school year

there were/ 10,655 students: 2,357 (22.1%) .white, 8,196.

(76. 9%) black and 105 (AR) Indian. (Table I, Maps: and

Tables)... ce

In. 1964, for: ‘the first Mae sixy black. sinleats were ‘per- ‘

mittéd to attend a formerly all-white school under a limited _—

free choice policy. When this Court decided Green v. County

"School Board of New Kent County, 391 U.S. 430- (1968),

- only 3% of the black children were attending school with i

_—whites_pursuant to the ard’s desegregation program.—

(314 F. Supp. at 67). ss o | —

At the time of Green, ond a year later hans this s litigation :

commenced, the County operated four schools which loused

~ all of its 2,357 white students and a few blacks, each offer-.

ing grades 1 through 12. They were: the Scotland ‘Neck

‘School, located, in the middle of the eastern portion of the -.

county, Enfield School ‘about. 16 miles west. of Scotland— ;

Neck, the Aurelian Springs School some 16 miles ‘north-

west of Enfield and William R. Davie: ‘approximately 8 miles

north of Aurelian Springs. (See Map II, Maps and Tables).

| = Superimposed: upon the system_of schools operated for.

' white children was a network of 14 black schools where in

- October, 1968 7 446 or 90.8% of th e ‘County's black Seige

attended school (Table I, Maps and Tables). In the eastern

portion of the county, for example, about 34 of a mile from

* »the Scotland Neck School and just outside the town limits -

os to the east is the: Brawley School?,(A. 233). Brawley, like

Scotland: Neck was a-school serving grades 1 through 12.

-.At the high school level—grades 9 through 12—Brawley

ee drew students from the same geographical areas as the ..

Scotland Neck School (A: 273-276; 149; 821). ‘White stu-

‘dents from the outlying couity areas ‘oils buses to the

; Town. of Scotland Neck and went. to the Scotland Neck

“School. Black ‘pupils rode separate buses from the ‘same:

surrounding area jo ‘the Town of Scotland Neck and went '

to the Brawley School. White students in ‘the town and

ie nearby areas walked to: the Scotland Neck School. Black |

children i in the Town‘of ‘Scotland Neck and close by walked —

to Brawley. rs ae

‘Tn addition to’ ‘Brawley, there are four black jenmtixy

.. schools (grades 1 to 8) in the areas surrounding the ‘Town

of Scotland Neck. Dawson is to the east, Tillery Chapel. ——

the north, Bakers tothe-west and "Thomas Shield to the

“south (Map II, Maps and Tables). At the elementary level,

Brawley served the Town of Scotland Neck and its immedi- .

ate environs. The black high school students in this area -

- had traditionally gone to Brawley. ‘All of the white chil-

dren in the areas served by these five black schools had al-

- ways gone to the Scotland Neck School until Au

(4. 273-276 3; 149). is

2 The ‘Scotland Neck School is’ on -the wat side of town. ‘The

. + town line separates ten acres of its campus and one four-classroom

. building which are located in the County. After the new unit was

‘ ereated arrangements were made to recapture these facilities for

the use ‘of the Scotland Neck Unit by extending the boundaries of.

‘the new unit through administrative action, and by leasing the

os from Halifax County for ae 00 per. year, me F. Supp..

at 70)

1970. “

N eck-Brawley area.

mee Department of” Juistice a ee o

i ment that the Board would take some desegregation steps

.. and-the transfers of grades.7 and 8 from three black schools,

This case involves the sonatititiondl duty of North Cute.

lina officials to desegtegate t the six schools i in Sum Scotland

Scotland Neck i is a t of less than 3 000 piiole. Tt i is\.

‘one mile wide af its widest and two miles long at its longest? ”

(Map IV, Maps: dnd Tables). It has a resident schoot .

population of. 695 of which 399 (57.4%) are white and 296 -

(42.6%) black (Table FV, Maps and Tables). In October,

1968, the total attendance at ‘the schools in the Scotland

Neck-Brawley area was 3,302: 786 (23. 87%) white and 2,516 ”

(76.2%) -black (Table.I, Maps and Tables). ‘This very .

‘nearly parallels the black/white ratio of the Halifax vinty?

Unit as ‘a whole whith was 22.19 ite and 76.9% black —

—

iia ee

Following Green, the Departmeiit of J astice’ on J uly. 21,

1968’ sent a letter informing the Halifax’ County Board of

- , Education that i it would institute suit unless prompt action

‘were taken to dismantle thé dual school system in Halifax —

County. The negotiations which ensued, produced an agree-

< the 1968-69 school year and would submit a plan for

_ the complete disestablishmentof its dual system. by early.

1969 to. be fully ishplemented for the 1969-70 school year. -

' The steps taken for 1968-69 were a few’faculty transfers

and grade 7 from a fourth to four neighboring white schools.

As part-of the plan, grades 7 and 8 were moved from Braw-- .

- ley to. Scotland Neck, ‘No white students were assigned to

Brawley | or to any other black school ini the county.

“* Seotiand Neck and fetid Schools are. located (Map IV,,. =

3 Iti is less than % of a mile wide at its eaial ‘end where the

and neues

age October; 1968, the Halifax School Board ‘sinile a& re- ie ,

~ port to the Department of. Health, Education- and Welfare.

. Its report showed student and teacher assignments at the.

' _ schools in the..Scdtland. aa ne eile area as follows }

: {Table } I, _— and Tables) : Oe

Pupils -"

"Grades . _Behool “White. Black of "a6 ask < wee -:

_ 142° ‘Scotland Neck 786-198: 979. 197% 36 10°. §

1-6; 9-12: Brawley ~0 1106 1106" 100%. 0

mS ee O..- 288 - 288 100%: 1

18 Thomas Shields 0° 203 203 :,100% 0 9. £§

Dawson 0. 459 . 459. 100%. 2 bj f

"Tillery Chapel Oo “92. “He 10%:

Totals 786 2,516 - 3802 16.2% -

Of. the. 193° black students assigned’ to Sedtland Neck, 153 i -

_ were the students in grades.7 and 8 wh lad been Aaa, :

ferred from Brawley (A. 732). The rest of. the students at

Scotland Neck and the five other’ all-black'schools had been ~

assigned by freedom of choice. Qrily 40-or about 114% of

the black students in-this area“who were assigned. by free _

- choice ended up -in school with white children. Na white

child chose any. of ene black schools. Boe | oe

4. The State Consolidation and Desegregation Plan

On July 1, 1968 the’ Halifax Board wrote to the North

Carolina Department of Public Instruction requesting that -.

it propose to the Board a desegregation plan which would .

provide “the most. effective organizational patterng for the -

county schools in order to instire the.best education possible

for. the children”, (314 F. Supp; at 68). A committee of

staff. members of the State Department of. Public Instruc-

tion’ and other educators made a detailed survey of. the

system and ‘made recommendations. to the ent board

= : . - ; f 7* " : ee i a . Solid z Z.

(A. 587): The eomandtnes3 was é directed. by Dz. ‘J. L. Pieree,

Director of the Division of Schiggl- Planning of the state:

department who was a former tea¢her, ‘coach and principal. -—

at the Scotland Neck School (A. 972). ee ee

* The: committee made. several long range ‘Geocanpiidis: :

. tions and also made. ‘recommendations for an Interim Plan

to meet immediate. educational. needs. : The principal long

range recommendations were to construct two ‘new high-

~ sehools. to . replace the nine’ high schools” operating in the

Jgounty (A. 594- 605). To*be implémented, the. long range

"plan would require political and financial arrangements

that would take Soypie time to accomplish. :

‘The Interim: Plan (A. 606) was designed for siitnadals

: implenientation. It proposed an organization of the schools © -

. which’ would effectively break up the classical features of ©

.the dual structure in Halifax:County. It was essentially ~

“a consolidation plan to eliminate the duplication inherent...

_ in a typical rural segregated school system. Thus, in the:

- small towns such ‘as Scotland’ Neck and Enfield, where j

there had béen white schools amd black schools: offering

the same grades and- serving the ‘same’ areas, the schools .

"were consolidated, The result of the plan was the elimina-

tion of five of the nine high schools and the creation of

. attendance’zones for the elementary schools.

In the Scotland Neck-Brawley area which was decipnaied &

District I, a high school district was established which -

"-eovered the same area: formerly served by the Scotland

Neck and Brawley. schools (Map III, Maps and Tables).

The State’ recommended that’ all 10th through 12th grade. -

students (white and black) in, District I attend Scotland |

' Neck and that all 8th and 9th gtade students)attend Brawley.

- At the elementary level. students in grades 1. through 7

from the Town of Scotland Neck and its immediate en-

ae irotis esula: go to biway a the junior igh site at .

Scotland: Neck’ (A..606). Elementary zone lines were.to be

a established for grades 1-7 around the four ou ying’ ele-__

mentary schools . ee: Dawson, oe Shields and’

Tillery Chapel). | ae fe ag

|: mendations in September, 1968 (A.°233-234)..On December’ _

§ UM, 1968, the Board prepared a ‘Tablé projecting student as-

_signments by race for : ‘the state’ department’s Interim

bes compared to October, 1968. perc’ teen and grade organiza- —

, tions are as follows. (see Tables Ta bres sea and Babies) : |

re Deiat Io 1968-69 A

hae __ . Pupils

We 4} \e

aes ian Black ©

na 3 | Io :

White Black , Total Black|

pp a4

10-12. Scotland Neck (325 °640~>- 965: 66.3%|.1-12 . 198

: + Paeaiwily” 380-740 +1070 69.2%] 1-12 100° ”

18 Bakers . ~~. 6 387, .393 © 985%] 1-8 . 100°

‘18 Thomas Shields 68. 340 408 833%| 1-8 100 |

18 Dawson §§§ 44 570 614 928%| 1-8 © 100°

18 Tillefy Chapel 31 378 «= 409--92.4%| 1-8 — 100

Totals : e 0" 3055 3859 79. 2% |

The State” Plan » was not submitted to the Department of.

- Justice: Instead, the Scotland Neck _Bill. was. introduced

into the legislature in January, 1969 and a free choice

~~ plan was submitted to the enacaavan of Justice in :

| February. | |

5 Chapter 31—The Scotland Neck Bill

In the summer of 1968; Scotland Neck. recidesie eiciune

: flly aware that major one) in sebool assignments w ould

Co ie state daaciee cofpleted its survey. and " fecom-. ee

Plan (A: 681- 682). ' These December, 1968, projections ‘as a

SS eT eee

A ns

ta finally requlven: ‘They eure shteaph the press “that

aaa had prompted the Halifax ‘Board to seek recom:

“mendations. for a desegregation plan’ from the. State De

partment of Public Instfuction. The: Scotland Neck Com-

( monwealth gave préiminent eoverage to the negotiations.

“with the Governmént., On Angust 9, 1968, urider a headline”

ae “County Ordered to. End Dual System, ” the paper reported =

‘that. freedom of choice was* nofideSegregating the schools

‘and there are available’ “‘otlier ways, such as unitary ~

: Seographic: attendance -zoning or some form. of grade re.

= organization or consolidation, promising speedier and more

. effective conversion to a. unitary system’ ” (A. 761).

- A week later, the’ paper’ repo ‘ted the terms of the agree-

‘ment between the -Board’and the Government. “[S}ev enth —

~ and eighth grades of Scotland: Neck and Brawley schools .~

will be consolidated for the -1968-69 term 1 one junior

high school®. -and. complete disestablish at of the dual

‘system j in. ‘the courity and jn Scotland Neck will occur. “at.

‘the dearer of the 1969: 70. school year”.

= a. The ‘Purpose of ‘Chapter. 31.

The district-court found and the defendant had conceded

that one the: purposes*of the proponents was to carve

out a school system with a facial ratio sufficiently tolerable

‘to: whites to stem the exodus ty private segregated schools* 7

- from an area where the ratio was Perecived to a dy intoler-

_ able to whites. :

4“The testimony and the candid inten of counsel also indi-

eate that the. desire to preserve an acceptable white ratio “in

‘the school’ system was a factor behind the ‘passage of the act.

Mr. Harrison statéd that he told the legislature that. white

children were. going to private-schools ands that something ~

_ needed to be done to’ retain the support of white people for

the publie schools. (Henry Harrison’s.Deposition; p. 18). Mr. ©;

Shields-and Mr. Overman both testified. that they felt that

integration would encourage the growth of the all-white private

9 schools.’ (Overmah’s Deposition, PP. 217-218, Shields’ Deposi--

“After ed ely, scicsithellind the record and after ‘eare-

~ fully consideri ‘the ‘arguments of : counsel, this Court. cS ie

is Gf the opinion n\that the following motivating forces: = §

“were. responsible°for the design of the legislation cre- °°

ating the separate Seetland Neck school district: (1)

the desiré to i improve the educational level i in the Scot- -

land Neck - sehOols, the present conditions in’ those

_ schools ‘having been: brought about by a a lengthy his-

tory -of. neglect and. discriminatien with respect to

financial allocations to the Scotland Neck -schools by

the Hahfax County Board of Education; (2): a desire

“on the’ part of the leaders of Seétiand N eck to preserve

oe ratio of hlack to white students in the schools of |

Scotland Neck that. would be acceptable to white

a parents and thereby prevent the flight of white Students

to the increasingly ‘popular all-white private schools’

in the area; (3).a desire on, the part of.the peeple of

Scotland. Neck to control their own schools and be in

» a position to determine their direction with more final-~

ity than if the .schdbls were a-part of: the«Halifax

County system. . (314 F Pe: at: 72).

" Snake” havi did not. determine’ which of the. purposes

- was predominant, but said each was significant.

“Th ascertaining such a subjective factor as motiva-.

* .. tion arid intent, it is of course impossible for. this Court

to accurately state what proportion each of the above

—_ the ee ck ee or the voters of Scotland’ Neck,

; tion, po. “70- 71). Mr. C. M. Moore saidthat it -was his opin-

. “ion that the independent. school system youl gbé a better al-_

ternative than the private schools. (Moore’s* Deposition, : pp.

‘ 18-19}. ‘Mr. Shields testified to the same thing and said that -

“"* most’of the ‘adults in Scotland Neck held the same opinion.

Nigro: —— pp. 23-26) .”, (34. F. are at 73). (See.

A. 984.) : .

reasons played in the minds of the proponents of the .

? e e .

- . bd

mewn aN SAIN PP REUE NEN STELLA RERLS PELE AIO Pe SO ME Tp WE re

. ‘ 6 4

Sd °

3 F a

° 9 . ’ *

AOR ERR RY +

;

ek RT I ET Ae I ANE i Fai OE ie it ace SFY

See 8)

but it is sufficient:to say that the record. amply’ sup-

ports the proposition that each of the three played .

a significant role in the final passage and oz

tion of —— 31. ” (314 F. Supp: at 7 2). °

The’ majority of’ the ‘Court of ‘Appeals siseomneil the ..

record and ‘determined that the purposes were as Judge ae

_ Larkins had found, but concluded that benign objectives .

‘of quality education and local control predominated (442

’ F.2d. at, 582). Judges Sobeloff and Winter came to the ~

- opposite conclusion. ‘They believed that the record showed

- beyond question that the separation of Scotland Neck from

Halifax County was conceived as a egregation plan (442

F.2d at 592, 598-600).

We agree with the Janting judges below. But 1 we think

it would ‘unecessarily complicate the. case to recite all the

faets which demonstrate - that Scotland Neck’s claims of.

legitimate non-racial motives are hollow, sinee Scotland

Neck concedes one of its purposes. was to accommodate

the racial prejudices of its white. patrons and since thé

record i is conclusive that the scheme would have substantial

% discriminatory effects.

b. The Effects of Chapter 31. :

In the Spring of 1969, after the election by the Scotland

Neck voters, the new district immediately. took ‘steps to

establish a new administrative unit. One of the first

actions ‘taken was to establish a Aransfer plan to allow

‘students ‘residing outside of the ‘city limits to attend the

- Scotland Neck school. The new Board adopted a tuition —

plan whereby families would be charged $100 tuition-for .

‘, the first child registered and $25.00 for each additional

child with a maximum of $150 per family. Meanwhile,

the County. School Board accommodated this policy * by

permitting transfers into the county from a Te.

“4

> 15 | :

withont: tuition: gad releasing county children who sought

- transfer to the new-unit§- __ pos ee

| ae

“The Scotland Neck. Unit began with a resident student

population’ of 695 of whom 399 (57.4%) were white and

296 (42.6% ) black. The transfer plan brought. in 350 whites

and 10 blacks S.; no whites and: 44 blacks transferred. out.

The net result was an anticipated enrollment of 1,011 which

will be 74. 1%.w hite. — ad Maps. and aanlet A. 522-

(524).

The Court of ‘Appeals : thought that the transfer plan

which it’ found to be unconstitutional had “no relevance”

to the constitutionality of Chapter 31, because it. said

“there is. nothing in the record to suggest that the Legisla-

ture-had any idea that the Stotland Neck Board would

adopt. a tr ansfer plan after the enactment pf Chapter 31

which would have the effect of increasing the percentage ©

of white students” (442 F.2d at 581-582, note 3). However,

the Court of Appeals overlooked a district court finding _

of fact which shows that the “eer ‘did know of the

fransfer plan: _ 23 5 -“@.

In Novembe® 1968, a group consis - of. Frank

Shields, the. future chairman of the Scotland Neck’

City Board of Education, C. Kitchin Josey, Henry.

Harrison, and Thorne Gregory, the State representa-

tive from the area, visited the Tryon City unit, at

. that time the smallest. school 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- corporate limits of Seotland Neck, and it

‘was expected that, with ietaad hel dny new administra-

. 5 Children oe sdeests outside of the ‘whutiiataties unit

where they: live may do so only upon the agreement of both the

unit of residence’ and thé receiving unit. Units are permitted to .

establish tuition charges for non-resident students but are not re-

, quired. to do so. N.C. Gen. Stat. §115-163.

Server EIN nA Re Demy

, .

. in the new administrative unit was hased on a substantial

—. of Seotland Neek, Littleton Lake—Gaston and Warrenton (A. 584).

tive unit would have approximately the same number

of: pupils. (314 F. Supp. at 69; emphasis added:)*.

” Subsequently, Representative Thorne Gregory fitro-

~dueed’ and sponsored the bill,2and served: as Chairman ~

of the ‘Hotise Finance | Comniittee whieh approved a

(A. 209). Since Scotland Neck had only 695 resident pupils

— it was obvious that planning. for about a thousand. students

- number of transfers. Moreover, since nearly one-half —387 :

of the*786—of the white pupils attending the historically

all-white school were from outside the town, it was equally

- obvious -that the expected transfers. would increase the

- percentage of white students in Seotland Neck School.’ -

It was only after the preliminary injunction was sdtened

that the ‘Scotland Neck Board suggested some: eontrol of :

its transfer policy (A. 796). But it has stubbornly refused -

to give up the idea entirely. As Judge .Winter observed:

“This proposal has not yet been finally abandondd. In

ofal argument before us, counsel would not tell us forth-

rightly that this’ would not be done, but rather, equiv ocally

‘indicated that the proposal would be revived if we, or the

— district court, could be perstiaded to approve it.” (442 F.2d

at 592). The obvious reasons that Scotland Neck has been

6 This finding was fully supported by*the reeord. See ater

of Overman (A. 299), Harrison (A. 366-67), and Shields: (A. 422

7 Aside from the many consolidations. ‘of administrative units in

North Carolina in, recent’ years (A. 580-A. 583) ; Turner vy. Warren.

County .Board ‘of Education, 313 F. ‘Supp. 380 (E.D. N.C. 1970),

there had been no new units established in North Carolina since

1953 until the post-Green 1969 Legislature created ‘the small units

It is highly unlikely, therefore, that the Scotland Neck proponents

would have sought to establish the smallest unit in North Carolina,

- particularly where North Carolina law allowed for the kind of

‘transfer® 2 cas which _was established. See note 5, supra.

‘eluctant to silent its ability to accept transfers are re

that with only 695 students. it ‘would. he considerably

' smaller than ‘the’ smallest school district now existing in

North Carolina making it incapable of even approximating ~

an adequate educational program and because..its bound- -

aries - exclude pearly one-half - of | ‘its traditional white

‘ patrons.® :

In addition to “the caidas olin, woiked out. with the

Halifax Board, Seotland Neck arranged with State educa- |

_tion officials to extend the boundaries of the unit so as to —

include the. grounds | of part of the Scotland Neck School

campus ‘which was.on the ‘county side of fhe town line.’. It_

also successfully negotiated with the Halifax Board to lease ~

-. the four élassroom. school building located on the ten acre -

site for $1. 00 per year. (314 F. Supp. 70- 74; A. 294).

When this case came on for hearing on the motion of the

United States for a preliminary injunctiori on August of

1969, the Halifax Board was planning to assign ifs‘children~ |

by freedom of choice. The facts. before the’ district-court __ i-—

were that 350 of_the 387 white children who lived in the .

* county. and ‘who had attended Scotland Neck School. in

1968-69 (A. 250) had paid a deposit on their tuition to re-

turn for. the 1969:70 school year and that the five black:

schools in the area would.be at least 97 8% black: There was,

-. of course; no assurance that the handful of. whites -who had

not - transferred to Scotland Neck. would not do so later

» (A. 522) or would: show up at the black schools. The onhy

differences between ‘tthe school boards’ proposals for the

1969-70. school year and the situation Which had existed, at

the Scotland Neck School-in 1968-69 were that about half

of the white children would pay tuition ang the black ratio

would have increased from 19. 8% to 25. 9% (Maps and

TS ERT CNT NY PE ed

’ ’

” PME AC ee RIN " sooneene . . ‘

of ene a

, * See note 7, supra:

_ *See note 2, supra.

: Tables, Tables I and IV). ‘The black schools would remain -

all-black’ or virtually 2 all-black. ,

6. Events Sebenaent 4 to the Preliminary Injunciion

3 On November 24, 1969, the district court directed the

~ Halifax County Board of Education to submit a desegrega-

tion plan on December 15 (A. 924). On that date,.the Board

reluctantly submitted the- State’s Interim Plan, indicating .

that it.knew of no better plan to disestablish the dual system.

On May 19, 1970, Jadge Larkins approved the. Interim

Plan and ordered that-it be. — implemented by June 1, #

1970." «ss

Following the fi final judgment i in a case anjeining Chap. es

ter 31, entered on May 26, 1970, the Halifax School Board

filed a motion (A. 1089) requesting that it be permitted. to -.

implemént the Interim Plan’ except in’ Scotland: ‘Neck where

_it.proposed to assign all town students to the Scotland Neck

School {See Map IV, Maps and Tables). Both the United —

States and the private plaintiffs objected. The Government

. correctly characterized the motion as an application for a

stay pending appeal (A. 1092).° The Board attached a Map

(Exhibit A) to its motion which shows what District I

would look like if both the Interim Plan and the Scotland.

- Neck Unit were put into effect (Map IV, Maps and Tables).

- The Brawley zone would én y encircle the Town of Scot-

. land Neck—like a doughnut—instead of including the Town

of Scotland Neck as. would be acéomplished by the Interim

Plan. Scotland Neck School. would continue to serve Scot-

_*Jand Neck children in grades 1 through 12. All high school

_ studetits in District I outside of the town limits would be as- ._

‘signed to Brawley rather than to Scotland Neck as would —

- happen under the Interim Plan. The Board indicated on

the Map the number of children fi race residing in each .

zone as follows:

‘School “White Black Total” % Black

Scotland Neck Unit Spa aga

Grades .

1-12 Scotland Neck 399 - 296° 695... 40%

a os Remainder of District I ned j

“12 Brawley _ Sa ee eee

1a Dee: a

‘1-8 Thomas Shields 85 288.., , 318-. 73.2

1-8 Dawson’ . 60° | “388 - 448° 86:

18 Tillery Chapel 22 a ae oe 90.6

Presumably these ‘eu t be the assignments if the Scot-

land Neck Unit were dllowed to operate but were subject

to the Court of Appeals’ Injunction . against aa areitian oo

transfers i in or ont. ' _ . t

PR NE RENT EEN

‘ ; : .

AR tag ne Po EMT, ‘ rere 1h nan ah kote toe

ait .

° :

Sta Seay hee

nt aN Per aes

ewes Melek ain.

MOEN Le

mer

20.

~ ARGUMENT

“The District Court Correctly Enjoined the Division of |

Halifax County’s System into Two Separate Units Where

the Changed Boundaries Would Impede Desegregation

‘and Where Formerly . ignoring Such Boundaries Was :

Instrumental in n’ Promoting Segregation.

eersieciion and Summary of Argument

‘We submit in Part i mee that’ the decision of-the dis- .

trict court is consistent with the basic principles enur

ciated i in this Court’s various school desegregation decisions. .

following Brown v. Board of Education, 347 U.S. 483 (1954)

(Brown 1) ; 349.U.S. 294. (1955) (Brown I1), including the |

. most recent decisions in Swann v. Charlotte-Mecklenburg =

Board of Education, 402. U.S.°1 (1971), and companion

cases. We believe that the Court of Appeals departed from.

.those principles in important. respects. In particular, we

urge that the district court was-correct in. evaluating Chap-

ter 31 in relation to its effect on the various desegregation

. alternatives available in Halifax County. We think the

Court of Appeals erred by adopting a rule that Chapter 31 .

should: be sustained unless plaintiffs proved that its “pri-

mary purpose is to retain as much separation of the races

~~ as possible.” The Fifth Circuit has applied a correct rule-

in deciding similar cases, namely, that distriets engaged in

the desegregation process-‘may not make. boundary changes .

_ which impede desegregation, particularly where such boun-—

daries were ignored to facilitate a dual system. See, eg. ._

Lee v. Macon County Board of Education ( Calhoun County .-

* School ‘System and City of Oxford School System),. 448 :

F.2d 746 (5th Cir. 1971); Stout v. Jefferson County Board .

of Education, 448 F.2d 403° (5th Cir. 1971).

“th Part I, below, we foean on. 1 the facts of Halifax ised

and urge that the district court was correct in ruling that. -

- the ‘proposed separation of Scotland Neck does impede, de- :

segregation, “while the Court of Appeals erred by labeling

. the. change “minimal” and “hardly substantial” in its im-

pact on the desegregation’ process. We show that the dual re

; system in Halifax County was long sustained and facilitated.

-by ignoring boundaries of the kind now erected to maintain —

_ Seotland Neck School as a majority white school while

nearby Brawley and four other black.schools will be main-

tained as black institutions. ‘The proposed separation of .

’ Scotland Neck is in conflict with the requirement that “school

authorities should make e every. effort to achieve the greatest

possible degree of actual desegregation” (Swann v. Board

__ of Education, 402 U.S. 1, 26 (1971); Davis v. Board of

; School Commissioners, 402 U.S. 33, 37: (1971)), and impedes ;

_ the use of: conventional desegregation techniques; ¢.g., the

. “pairing” of nearby ; schools. (Swann, supra at 27); see also

_ North-Carolina State Board of Education v. Swann, 402

U.S: 43 (1971). While no particular: degree or percentage

__ of. racial balancing is required by the Constitution, the

3 - shefting pereeritages caused by the separation of ‘Scotland —

. Neck would continue existing all- -black schools and schools

that are “substantially disproportionate in their racial com-

_ position” (Swann, supra, 402 U. S. 1, tila

PAE TT Ss a i

” 7 ’ k e t

; P .

RATER MNT NEN ENP Ce MTT ENROL HORNY, METEORITES EDT VR ORHNE EY

‘ 7 .

oe Pee ee |

- The District Gens Correctly Evaluated the Peepaseh. :

7 Scotland Neck Scceidion i in Terms of Its Effectiveness

‘ in Dismantling commas be aacon, in Eastern’ Halifax

‘

. The dintiict court had the evacial reupéasibility toseeto -

it that all vestiges of state imposed segregation in Halifax —

County be eliminated: forthwith. ‘Brown v. Board of Edu-

cation, 347 U.S. 483 (1954) ; 349 U.S. 294 (1955); Green v.¢

County School Board of. New Kent County, 391 U.S. 403 -

(1968) ; ‘Raney v. Board of Education, 391 US. 443 (1968) ;

_' Monroe v. Board of Commissioners, 391 U:S. 450 (1968);

. Alexander v. Holmes County Board of Education, 396 U.S. |

“19 (1969) ; Carter. v. West Feliciana Parish School Board,

396 U.S. 290 (1970) ; Swann v. Charlotte-Mecklenburg Board

of Education, ‘402 U.S..1.(1971); Davis v. Board of School d-

Commissioners: of Mobile County, 402 U.S. 33 (1971). It is

a beyond. question that a typical pattern-of a racially segre-

~ gated dual school system. which ‘had been erected pursuant -

*.° to the Constitution and laws of the State of North Carolina, —

continued tq exist in rural Halifax County almost undis- a:

|... turbed when this case came before the district court in.

4- August and‘December of 1969. See Part II, infra. In this

‘ease the district court thought that its duty “under this

Court’s mandate to eliminate racially separate . public i

’ schools established and maintained by state action” (Swann,

supra, 402 U.S.‘1; 5), was to compare the proposed seces- a:

‘sion of Scotland Neck from Halifax County with other pro-

« posals i in terms of their relative effectiveness i in dismantling” oe

school segregation root and branch. Green v. County ‘School. Fi

Board of New Kent County, 391 U.S. 403 (1968). Applying

- this standard, the district judges found that the operation of

the new school unit would impede rather than further de-

‘ . . . . .

SE eee ce Cee TTT et TAMU es tee ee tN

2 PRE TA Te ee

a ae

sit:

oe i &

- segregation. ‘The court therefore enjoined its operation and

_. ordered the: Halifax County Board to implement the more —

effective plan which had been proposed by: N orth Carolina’s 3

Department of Public Instruction. oie pea

Oe od

We think that this. approach was ealiney simdiiibaak with.

‘this Court’s school desegregation. decisions. The novelty of

a’state law. changing a district’s boundarie’ i in the face of

; ‘desegregation does not avert Brown’ basic thrust. Brown Sr

II envisioned that the equitable power of the district courts

ought to: be addressed to revision of “school districts” as

2 well as. individual schools and attendance areas.. This was c 4

_ assumed by the Court in’ enumerating factors that bool oe

Justify delay in immediate desegregation:

To that end the courts may. consider prob ms related

tf administration, arising from the physical condition

of the school plant, the, school transportation’ system,

‘personnel, revision of school districts and attendance’ 5

areas into compact units. to achieve a system of deter-

mining admission to the public schools.on a nonracial.

\ basis, and | revision of local laws and regulations which

_ May. be necessary ‘1n solving the foregoing problems..

. (349 U. 8. at 300-301; emphasis added, ae gS

“”

: Ih déclaring segregation uiiconstitntional; the Court made 5.

' plain-that “all provisions of federal, state, or local law

"requiring or permitting: such discrimination’ must yield’

1. to this principle”. (Brown’ IT, supra, 349 U.S." at 298).

Cf, Gomillion v. Lightfoot; 364 US. 339 (1960),

The Court announeed. i in Grete and. reaffirmed i in Swann,

that a “sehool authority’s remedial plan: or a district

|. court’s remedial} decree is to be judged by its effectiveness.”

,402 U.S. 1, at 25. Green said that school boards had “the

afirmative duty to take whatever. steps might be necesary

os convert to @ unitary system in wants racial discrimina-

C3)

. eu: . n uN

’ a : = 94 , . °:

: : ‘ 2

; - mt “ es

; . -e@. . : i . “

‘tion would be eliminated. root and branch.” .391 U.S. at

437-438. Swann articulated further guidelines including,

° inter alia, ‘the requirement that district judges and school

authorities “make every effort to achieve-the ‘greatest’ ”

possible degree of actual desegregation” ; the articulation

of “a presumption against schools that are substantially -

disproportionate in their racial eomposition”® with the |

burden.on school authorities to justify any one-race schools

_.: as not, resulting: from past discriminatory action; ‘and the

endorsement of the use of drastically altered attendance

zones, ‘and techniques of pairing.and non-contiguous zoning .

to dismantle s Ss gregated systems.. 402 WS. at 26-28. Sée

also,Davi is V. chool Commissioners of Mobile County; 402

-: US. 33). 37. (1971). Moreover, the Court made it clear

__ that assignment plans: are “not: acceptable simply’ be-

= eause .... .. [they appear] .to be. neutral” if they fail to ~ -

cotnteraat the continuing effects of - past discrimination. .

402 U.S. at 28. _— = *,

. Swann also reflected the Court’s understanding of the

‘manifold means by which school authorities control the

racial composition of schools, noting the great influence

* exerted by decisions about school location. and ‘construc-

7 tion, and requiring that.Court’s look to the future to pre-

vent “Such decisions from being used to perpetuate or

‘reestablish dual. systems. * 402 U.S. at 20-21. Finally,

Swany reemphasized the broad remedial discretion of the

district judges where™ school authorities -have. defaulted

in thejr-constitutional obligation to provide a’ racially non- -

—aaaeniminatory, system of ‘public schools: 402 US. at 15-18,

25, 28, 31. Ss

“As previously mentioned the district court asasialel

that Chapter 31 ‘was enacted with the effect of. creating

a.refuge for white students of the Halifax County. School |

system, and interferes, with the desegregation of the Hali- _

.*.

fax nent Sehool system, in accord: with. thé — adopted |

by said Board’ to be implem ted on or before June 1,

1970.” 314 -F..Supp.-at 78. Tf conclusion, buttressed by

. detailed ’ fact-findings, supported the. decision. to enjoin

Chapter 31° as.an interference with the .best available

desegrégation plan and is in accord with Green and Swann.

The Court of ‘Appeals took a very different approach.

It began by assuming that the withdrawal of a small area_

in the middle of the eastern portion of Halifax County

at a time when the Halifax School Board was under ‘ail .

. immediate duty to produce and implement: an effective

school desegregation plan was to be viewed as a’ normal

creation.of.a political entity by the = of North Carolina:

‘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

for the original “system.” We do not, agree. The °

severance was hot part of a desegregation plan pro-

* * posed by the school board but was instead ‘an action

_ by the Legislature redefining the boundaries of local

governmental units. 442 F.2d at 382-83." |

Rejecting the standard of Green requiring the selection’

of the most effective plan, the Court of Appeals designed

the “primary purpose” test to determine whether the new

school unit would violate the Fourteenth Amendment.

If the creation of | a new school district is designed

to further the aim of providing quality education and

The court went on to assume “For the sake. of argument that _

appellees’ method’ of analysis is correct” and concluded “that the:

severance of Scotland Neck students would withstand constitu- —

tional challenges.” 442 F.2d at 583. In our next argument (I),

we demonstrate why the district court ‘was correct in its determi-

Ration that the new unit would impermissibly impede een

in Halifax County:

= -

PEE TROTTER SOY GI SRN RATION dy

‘i ” r x “~ bs . .

NILE LO LENNIE TH BU carga

EEL NI BTS BT 68

PNR SE

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 creating a new: school district is to retain, as much

of separation of the races as possible, the state has |

violated its affirmative constitutional duty to end state

supported school segregation. The test is much easier,

to state than it is to apply. ;

‘Wright | v. Councit of City of ‘Emporia, 442 F.2d 570, O72 |.

_ (4th Cir. 1971)." In applying this test to Scotland Neck;

~ the majority of the Court. of Appeals concluded that “The

purpose of Chapter 31 was not to. invidiously discriminate

against black students in Halifax”County .. .” (442 F.2d

at 582). We agree with the dissenting judges below ‘hat

even if the primary purpose test were appropriate, the

‘record here* decisively reveals an overriding. motive of

segregation.” However, the analysis Biches by the -

The rule w hich appli ed to the three cases whic h were decided

together (Emporia, Sco‘land Néck and Turner v. Littliton-Lake

Gaston School District, 442 F.2d 584. (4th oe 1971), was’ inost

fully discus -ged in Emporia: ;

12 Judge Sobeloff applied the majority’s test (442 F.2d at 598-60)

_ and caine to the “conclusion that race-was the dominant: considera-

. tion and that the:goal was to achieve a degree of racial apartheid

more congenial tu the white community.” 442 F.2d at 600. Judge

_ Winter also. reviewed the faets, 442 F.2d at 591-92, and reached

the same result. “On the faets I eannot'find the citizens of Scotland

Neck motivated by the. benign purpose of providing additional

funds for their s¢hools; patently they seek to, blunt the mandate

of Brow.” 442 F.2d at 492. We would only add a brief discussion.

of two matters to what Judges Sobeloff and. Winter. have said.

Judge Craven found for the majority that the unconstitutional.

transfer plan did aad affect the constitutional validity of-Chapter

‘31 (442 F.2d at n. 3, 581-82) even though a similar plan, was

relevant in determining the constitutional invalidity of the new

district in Littleton-Lake Gastdn (442 .F.2d n. 2, 587) because the

- legislature did not know of. the proposed transfer plan for Scot-

_ land Neck but did for Littleton-Lake Gastor.. Judges Sobeloff and

Winter conyincingly found the transfer plan very relevant to the

Court of Appeals is considerably more pernicious in terms

ef the future course -of school desegregation than in its

- application to a particular case. of

‘The “primary purpose” doctrine i isa dangerous departure

from the firmly established principles worked out by this

’ Court and lower courts since Brown to, ensure. that all the

issue of purpose. 442 F.2d at 5914 I: j42 ¥.2d 598. 99. What is,

conchisive, however, is the district .court’s specific finding based

on Substantial ev idence that’ Representative Gregory, who’ intro- :

* dueed ahd shepherded Chapter 31 through the State. House, had ,

full knowledge of the transfer plan. See p. 15, supra. Moreover,;

the law did not -take effect until after a vote of the residents of.

_ Seotland Neck where the issue. Was supported by the same people.

‘who sought its passage in the legislature and who established the | '

transfer plan immediately after its implementation. Finally, the

‘transfer plan was readily foreseeable since it was permissible ‘under

. state law. See note 5, supra. %

Second, Judge Craven in finding: the selection of the *town’ boun-

daries to be a “natural geographic boundary” and seeing “no indi-

cation that the-geographic boundaries were drawn to ine!ude white

students and exclude black students .. .” 442 F.2d at 582, thought

that this pointed towards a benign purpose. We dispute both asser- .

tions. We ow of nothing “natural” about the politieal boundaries

. a town. See pp. 39-40, infre. And we think that thé selection

Scotland Neek, whi i¢h is the only area of eastern Halifax County

h has a majority white stndent population, raises an inferenée

of racial motive. Map IV. Maps and Tables ; see pp. 39-40, infra.

3 Judge Sobeloff observed: “I find no precedent for this: test.

and it is neither broad enough nor Tigorous enough to fulfill the,

. Constitution’: mandate. Moreover, it eannot sneceed in attaining

even its intended reech, since resistant white enclaves will quickly

learn how to strueture a proper record—shrill with protestations

of zood intent, all considerations *of race muted beyond ranze of

"the court’s ears.” 442 F.2d at 594. The doctrine will trap federal -

courts “in “a quagmir® of litigation. The doctrine formulated by

the court is ill-conceived and surely will intpede and frustrate

Prospects for successful desegregation. Whites in ‘counties heavily

‘popnlated by blacks will be encouraged to set up, under n* guise

or another, independent school districts in.areas that are or can.be

made predominantly white.” 442 F.2d at 600. See also, Brief for

. Petitioners, Wright Vv. Couneil of City of Emporia, No. 70-188. -

pp. 37-46..

interlacing laws, practices and.customs: which have sup-

ported dual school systéms are dismantled and abolished.

_ It is fundamentally wrong, therefore, to say as the Court

of Appeals has said, that an act of the legislature aimed at

altering: the structure of a single school system amidst a

desegregation controversy is to ‘be judged by its ‘primary

purpose” and not by its effect,on the desegregation in the

locality. . It was error’to require that plaintiffs prove the

“primary purpose” to segregate wlicre they have shown

- that the effect of the law impedes desegregation,

. It was recognized by this Court from the start that school

_ segregation is the product of a whole battery of devices

rooted in state action.-A variety of schemes and arrange-

ments have cropped-up over the years which served to with-

“hold the promise of Brown. The Court has rejected time

and again ‘claims that the action of orie state official or

agency or another has some kind of insulation from judicial

scrutiny. This has been so because : |

In short, the constitutional rights of children not to, be

- discriminated against in school admission on grounds |

of race or color declared by this Court in the Brown

ease ¢an neither be nullified openly and directly by state

legislators or state executive or judicial officers, nor

nullified indirectly by them through evasive schemes f

segregation whether attempted “ingeniously or in-.

. genuously.” | :

Cooper v. Haren, 358 U.S. 1, 17 (1958):. See also, Bush v.

“Orleans Parish School Board, 190-F. Supp. 861 (E.D/ La:

1960), aff’d sub nom. City of New Orleans v. Bush, 366 U.S.

212 (1961) ;-Griffin v. School Board, 377 U.S. 218 (1964);

and see the authorities collected in Judge Sobeloff’s dissent ff

below, 442 F.2d at 593-594, nn.-1, 2, 3, 4 and 5. See also cases —

- invalidating a host of private school tuition grant poneoes ,

infra, Part Ti, note 26.

The Crate of Appeals snowiodicei in the Emporia case —

that the devi ice of carving up school districts.into a number |

-. of separate units posed a “serious danger” of obstructing

desegregation. Wright v. Council of City of Emporia, 442 -

*#, 2d 570, 572 (4th Cir. 1971). This danger has been clearly ~

pereeiv ed- and decisively dealt with by the lower federal

courts. It is very ‘significant: that every such attempted

‘ secession which we have found reported in the lower federal

courts—with the sole exception.of the Scofland Neck and.

Emporia cases—has. resulted in a decision disapproving

such secessions as unconstitutional evasions of Brown.

Lee v. Macon County Board of Education (Calhoun County

School System and City of Orford School System), 448

F.2d 746: (5th Cir. 1971) ; Stout v. Jefferson County-Board of

Education, 448 F.2d 403 (Sth Cir. 1972) ; Burleson v. County

- ‘Board of Election Commissioners of Jefferson County, 308

F. Supp. 352 (E.D. Ark. 1970), affirmed, 432 F.2d 1356 (8th

Cir. 1970) ; Turner x. Warren County Board of Education,

313 F. Supp. 380 (E.D, N.C. 1970), affirmed subnom. Turner

v. Littleton-Lake -Gaston School District, 442 F. 9d 584, (4th -

Cir. 1971); Aytch v. Mitchell, 320 F. Supp. 1372 (E.D. Ark.

1971).; cf. Jenkins v. Township of Morris School Dist., 58 _

“NJ. 483, 279 A.2d 619 (1971). In each of these cases an

. attempted secession was struck. down as an interference with

desegregation.

Similarly,-in a long series of cases where existing school .

districts ‘have been established on a racially segregated

basis, the courts have ordered desegregation plans which

effectively merged racially separate districts. Haney v.

‘County Board of Education of Sevier County, 410 F. 2d 920

(8th Cir. 1969) ; United States v. Texas, 321 F. Supp. 1043

(E.D. Tex. 1970), affirmed, 447 F.2d 441 (5th Cir. 1971);

~ Evans v. Buchanan, 207 F. Supp. 820, 825 (D. Del. 1962) ;

Sloan v. ‘Tenth Benen District of Wilson County, Tenn.,

433 F. 2a 587. 588 (6th Cir. 1970) (mentioning prior pro-

- ceedings involving merger of three overtapping districts) ;

a United States v. Bright Star School District #6, unreported, ..

3 - WBD.-Ark. No.“#-69-C-24, April 15; “1970 ;-Onited- States-+-_!

Crockett County Board of Education, ; rapide’ WD. .

Tenn.; C.A. No. 1663, May 15, 1967.

The two-recent Fifth Circuit decisions in Lee.and Stout,. —

both decided since this Court’s decisions in Swan and com- ©

' panion cases provide the approach which we believe should |

be used in deciding such controversies. The decision in

_ Stout, supra, by a unanimous panel of Judges Thornberry,

Clark and Ingraham, held that ‘splinter school districts; ~

albeit valid under state law, need not be récognized where ~

they thwart implementation of a unitary school system. The ~

-ecourt relied upon this Court’s decision striking down the |

_ North Carolina Anti-Bussing statute, North Carolina State

Board: of Education v. Swann, 402 U.S.’43, 45. (1971), quot-

ing the following — from that opinion y the Chief °

J ustice ; : |

.[I]fa state- imposed limitation. on a school author-

eae discretion operates to -inhibit' or obstruct the

operation of-a unitary school system or impede the —

., disestablishing of a dual school system, it must fall;

* state- policy must give way when it operates to hinder.

a vindication of federal: constitutional guarantees. |

Stout Vv. Jeferson County Board of Education, 448 F.2d

403, 404 (5th Cir. 1971).

The opinion in Lee, supra, by Judge Wisdom (joined

by Judge Simpson, as on this issue by Judge: Coleman)

held that in confronting the secession of the City of Oxford -

school system from the Calhoun County system the: district _

court properly treated the two systems as one for the

purpose of developing a desegregation —= a

Wisdom wrote in Lee, 448 F. 2d at 752:

For purposes of relief; the district court treated

~-—the. Calhoun County and Oxford ‘City systems as one. 7

We hold that the “district court’s approach was fully

within its judicial discretion and was the proper way

to handle the problem raised by Oxford’s reinstitution

of a separate city school system. The City’s action

removing its schools from the county system took

place while the city schools, through the county board,

were under court order to establish a unitary school

system, The city cannot secede ‘from the county where

the effect—to say nothing of the purpose—of the

secession has a substantial adverse effect on. desegre- .

gation of the county school district. If this were |

legally permissible, there could be incorporated towns

for every W ‘hite neighborhood in every city. [Citations

omitted]. . . Even historically separate school dis

‘tricts, were shown to be created as apart of a state-

. wide dual school system or to have cooperated to-

gether i in the maintenance of such a system, have been

treated-as one for purposes of desegregation. [Cita-

tions omitted] .

School district "lines within a state are matters of .

‘political convenience. It is unnecessary. to decide

whether long-established and racially ‘untainted bound-

aries may be disregarded in dismantling school segre-

gation. New boundaries cannot be drawn where they

would result in. less desegregation when formerly .the.

lack of -a boundary was instrumental in promoting

segregation. Cf. Henry v. Clarksdale Municipal

Separate School District, 5 Cir. 1969, 409 F.2d 683,

688, n. 10.

Le alt)

i oi

en eS NO ES ea Re OM yt

> ae arte

We believe that Judge. Wisdom’s. formulation provides

a principle’ for decision consistent with the- case law

developed in this Court from Brown to Swann and capable °

of coping with a potentially widespread new pattern of

evasion, the “incorporated town for every white: neigh-

borhood.” The courts below in this case wrote without

benefit of this’ Court’s opinion in Swann, but tiey ertheless

J udgeWinter’ s dissent (joined by Judge Sobeloff) reached

a formulation based. on: Green that is similarly satisfactory:

“Given ‘the application of the. Green rationale, the.

remaining task in each. of these cases is to discern

whether the proposed subdivision will have negative

effects. on the integration process in each area, and,

-if so, whether its advocates have borne the “heavy

- burden” of persuasion imposed by Green. (442 F.2d

at 589). |

Judge Sobeloff’s| | dissenting. opinion stated that the test

for any-such secession was whether it served a “compelling

and overriding” state interest: 2

. If challenged state action has a racially discriminatory

_. effect, it violates -the equal protection clause unless —

_ a compelling and overriding legitimate state ‘interest

is demonstrated. This test is more easily applied,

more fully implements the prohibition of the. Four-

teenth Amendment and has already gained firm root

- in the law. (442 F.2d. at 595). -

a AF ~

Of course J — Sobeloff and Winter did 1 fot have the

benefit of Swann’s: statemént that in traditidnally: ‘dual

systems there is-a “presumption against schools<that are

substantially disproportionate in their racial composition”

(402 U.S. at 26), and the holding that all proposals con- —

templating disproportionate schools should be scrutinized

33.

+ “to satisfy the court that their racial composition is not

the result of present ‘or past discriminatory action bg

(402 U.S. at 26).

Whatever verbal Sorainialion 4 is used to state ‘the test, |

we think the Fourth Circuit’s emphasis on the’ réquirement |

that plaintiffs show a legislative motivation to promote

segregation is basically inconsistent with effective. ‘imple-

. mentation of Brown in the face of determined tactics of ©

resistance and evasion. The responsg, by all of the: other

-federal courts Which have faced the secession tactic aia

the way. to full realization of the right to a racially non-

discriminatory public education. \ r

Il.

The Separati®n of Scotland Neck From the Halifax

County School System Impedes Desegregation of the

Schools Involved: ac ,

An analysis of the facts in this case demonstrates the —

SL PAINS VRS ETON Hid wer

“ . . .

‘ eorrectness of the district court’s ruling that the proposed ——

secession would’ impede desegregation. and the. error of

the court of appeals in labeling the change “hardly: sub-

~ Stantial” and “minimal”. The application of the legal prin-

ciples discussed in part I can best be understood by .

considering the facts with respect to: (1) the pattern of

operation under the dual system, (2) the interim desegre-

gation plan proposed by the state survey’ committee, ang

~ (3) the pattern which would have developed with Scotland

' Neck as a separate system; either. with or without the:

.* .

. interdistrict transfers. ye ‘

A. Organisation of the Dual System in Scotland Neck Area.

‘The eastern part of Halifax County around the town. of

Scotland Neck a a. classic: dual segregated system.

OMAR Tn

Aye agree PORE YS IA RON

Bet

Scotland Neck. School served all-white children for silleg:

around in grades 1- 12.4 Five Black schools served the

' same region in a separate system for blacks, Brawley

’ School (1-12)—less than a mile from Scotland Neck—

.. served the same region with a high ‘school zone entirely

: overlapping Scotland Neck’s and partially overlapping its

- elementary zone (A. 273-276; 149). The other four black:.

schools . (Bakers, Tillery. Chapel, : Dav

3 Shields) overlapped. the balance o Scotland N eck’s ele-

mentary.attendance atea. The blac majority. had “neigh-

‘ borhood” elementary schools while/the white minority was

bused to a regional elementary school at Heotiend Neck

273-276); iene egal Nige oe

Under the dual system the hostudaay: of. the town of Scot-

.. land Neck had no significance whatsoever in the assignment

of pupils, White pupils i in the-eounty came to town to Me

‘tend Scotland Neck (A. 250), and black pupils living in

town went to Brawley which was lo¢ated just outside the

city limits on the town’s eastern boundary (A. 273-276). In -

1960 ‘an Addition: to Scotland Neck School—the four-class-. -

‘room junior high site—was built outside the town limits in

the county. Scotland Neck School was expanded period-

-ically’® to its present capacity of 1,000 students in order to

- serve the white population of.the eastern end of the’ county,

a larger population than the 695 resident pupils of the

town. Similarly the establishment of ‘Brawley’* as a sep —

arate school for blacks just a. short distance sway on ) the.

14 The nearest white school, was Enfield, about 16 ‘wiles teas \ 3

_ Seotland Neek. 2 -

~. 16 Scotland Neck was ; built i in 1903, . with dhieainead additions and.

. improvements. in 1923, 1939, 1949, 1954 and 1960. (A. 667-A, 668)

: | a8 Brawley was built in 1926 with classroom additions and im-

| - provements in 1937, 1942; 1951,. 1955, 1960 and 1968. (A. 652-_

A. — 3

85°. *-

all blacks. i in the region—both. within and without the City

- limits. hs ; ast eae

Under the dual sii the Halifax County Board’ had a

variety of arrangements‘i ignoring even the boundaries with ©

neighboring school administrative units where convenient

or necessary to serve the ends of segregation. .For example,

_ Indian ‘students were:sent to the Haliwa School in the next

Chaloner School in the Roanoke: Rapids, City systein ; and

white pupils were sent to Littleton School in Warren County

(A. 221). Similar arrangements brought puyftfs from other

districts into the Halifax system. to attend segregated :

schools. The footnote ‘below details this: widespread pat- |

tern of ignoring and.crossing ‘oyer school ‘unit boundaries

black children to ‘Chaloner.School located ‘in’ the Roanoke

. Rapids system ‘was challenged by the Department of Health, |

_ Education, and Welfare, the Halifax Board leased Chaloner

. from’ Roanoke Rapids and continued the black children in’ «

a (A, 221) ; : hooedl to interrogatory 3(d) (A.. 859- 860) .

Appreninats Nuniber of Students Who Reside.

Within the Unit but Who Attend. .

‘School Outside of the Unit .

| hi jiccsiaiaiy (A. 233) ial nreeskaale on n using it to wis a:

| gounty,; Warren:County; many black students were sent to” |

to implement segregation."” When the arrangement sending :

ta ok oe ee of Pupils School Unit - ‘School and School Unit.

Year by Race . of Residence : Attended - —

1964-65 220 (Indian) Halifax County . Haliwa*Warren County

oe 160 (White) Halifax County LLittleton-Warren County. uo

: . 800 (Negro) Halifax County Chaloner- Roanoke Rapids City

1968-66 220 (Indian) Halifax County _ ‘Haliwa-Warren County

155 (White) Halifax County Littleton-Warren: County — :

; es 790 {Negro) , Halifax County Chaloner- Roanoke Rapids City

. 1966-67 215 (Indian) Halifax County. Haliwa-Warren County

155 (White) Halifax County Littleton-Warren County .

_ 1967-68 150 (Indian) - Halifax County’ Halfwa-Warren County

: -, 150 (White) - Halifax County __Littleton-Warren County

1968-69 .140 (Indian) Halifax County’ Haliwa-Warren County

: 150 (White) Halifax County Littleton-Warren County

1969-70. 75.(White) | Halifax County ©

Littleton-Warren County

the same building which thus became a part of the Halifax

- system even though it was located within:the City of Roa-

noke Rapids.’* In sum, the Halifax Board, like miany other:

* dual school systems,!® freely ignored not only the boundaries

‘of the town of Scotland Neck—which were never considered

Approximate Number of Students Who Residé © .

Outside: of the Halifax County School. Administrative

Unit and Attend School | Within the Unit ~° .

No. of Pupilg School Unit - . School

‘Year . byRace- . | of Residence - - _,. . Attended

? 1964-65 75 & Roanoke Rapids City. *. Wm. R. Davie ©

. . 40 Martin County — ° Thomas Shields

* 20° Martin County _ Brawley

‘10 Martin County ; Hobgood

ae : + ~Martin County : \ Seotland Neck

1965-66 75. Roanoke Rapids City . + Win..R. Davie

30 Martin County .\ Thomas. Shields

~. ° 10 (Negro) .\ Martin County . ae Brawley —

«| & (whitey Se County . * “Seotland Neck

4&1966-67 75 Sse andke Rapids City . Wm. R. Davie

ey --' 10 CNegro). — rtin County . Thomas Shields ~

- -5 (Negro) .- Ma n County ' Brawley /

7 (white) Marth County’ “Seotland Neck .

__... 1967~68 - 75. (white) Roanoke’ pids City. _ . * Wm. R. Davie .

‘e 10 (Negro): . Martin Cou Thomas Shields”

5 (Negro) - _ Martin. Count s Brawley -

. , 7 (white) , 'Martin Co ounty - Seotland Neck

1968-69. 75 “(white) Roanoke, Rapids City, Wm. R. Davie

"16 (Negro) _ Martin County Thomas Shields

5 (Negro) , Martin County ae Brawley *

1969-70 75 (white) — Roanoke Rapids City R. Davie —

18 A. 821 and A. 860-861 ; ; Answérs to Interrogatories 2 an

9 The following dre some of the reported cases inv olving sending ,;

_ black pupils to adjacent county school systems jn order te promote | \

racial segrégation ; Griffin vy. Board of Education of Yancey County,

' 186. F. “Supp. 51h (W:D.N.C. 1960); Schodl’ Board of Warren

CoyntyVa. v. Kilbys 259 F.2d 497 (4th Cir, 1958); Goins v.

Cotnty School. Board of Grayson County, Va., 186 F. Supp. 753 |

(W.D. Va..1960), stay denied, 282 F.2d 343 (4th. Cir. 1960) ; Corbin . .

_ Vv. Coyaty School Board.ef Pulaski County, Va., 177 F.2d! 924 (4th °

_ Cir. 1949) ; Crisp .v. County School ‘Board of, Pulaski ‘County, Va.

._ CW.D. “Va.- 1960), 5. RaceRel. L. Rep. 721; Buckner v. County

School ‘hool. Board . of Greene County, 332 F.2d 452. shen Cir. 1964);

“Walker vy. County School Board of Floyd-County,: Ka. (W.D. Va."

- 1960), -5 Race Rel. L. Rep." 714. Cf. ‘Missouri ex rel. conn *.

‘Canada, 305 U. S: B37 (1938). : :

4 a . owe * ~. ”

relevant ‘to school assignments—but also the boundgries of

its own school district in order to promote. and facil ate the

dual system. " y

The‘adoption of a freedom of choice plan had a: : negligible

impact on the dual pattern developed under state law. J udge © |

‘Larkins found: |

“The eounty seniedatal: the freedom-of-choice assign-

ment plan for the next three years “during which a few

black students attended formerly all-white schools and

no white students attended formerly all-black schools.

_.. For example, during the 1967-68 school year, all of the

» white students and 97% of the black students attended

. schools previously maintained for their own racés. In

~ that year, 10 of the 450 teachers in 18 schools were as-

signed across: racial lines. About 35. black students .

attended the Scotland Neck schools during the pee

school year.” (314 F. Supp. at 67.) ;

‘In the eastern area of the county five sees remained all

black under the free cfoice plan.*° The result of “Freedom |

of Choice” at Scotland Neck and’ Brawley, .both serving

grades 1-12, less than a mile apart, directly | parallels the -

situation of the Field and Gould Schools in ‘Raney v. Board .

"of Education, 391 U.S, .443, 445. (1968).-See also the New .

‘Kent and Watkins schools in.Green, | supra, = U. S. at 441-

442 2 (1968).

| 2°The intermediate dinnertention arrangement iensailatel by the

. Department of. Justice for 1969-70 eliminated the dual pattern for. f

a few classes of. black 7th and 8th‘ graders who were transferred

en masse. to white schools. . . -

oa Ps :

AE PTS ELE SL IONS PTE SRT NET SC IT TM BIE os IRR ER Ti eT OF SE

_ B. The Interim Plan.

The interim plan developed by the state survey pommnities

approached the problem of establishing a unitary system by

using the simplest of techniques, ordinary geographic zon:

ing, to éliminate the dual pattern. Scotland Neck and

Brawley would continue to sérve the entire eastern region,

but Scotland Neck. was made the high school (10-12). and

Brawley would serve grades 8-9.*! Elementary children

in the immediate environs of both schools would go to

Brawley, with the Scotland Neck J unior High site used for

‘certain elementary grades. The other four elementary

ea schools in. the’ district were also giv ea geographic zones.

Some measure: of - ‘integration would be achieved at each

school by this simple zoning technique (Table II, Maps and °

' Tables). Theswhite minority in the. District I area (21%)

would be somewhat concentrated in Scotland Neck (33.6%

white) and Brawley (30.8% white) reflecting the population =

distribution at the elementary level. But at least Brawley

would be desegregated for the first time and all pupils‘in

grades 8-12 (or 9-12) would attend schools which reflected

the racial composition of the eastern region of the county.

The other four black elementary schools would also he de- -

segregated for the first time with white populations reflect:

- ing those areas and ranging from 1.5% to 16.6%. (See Table

II, Maps and Tables.) -In sum, the state survey committee

recommended an interim plan based on conventional geo-

graphic attendance zones by which there would be essentially

. gration in the area. 7 8 .

21 The interim plan proposed that the elementary schools serve . ,

grades 1-7 (A. 606)..For some. reason the December; 1968 projec-

tions by the Halifax Board show grades 1-8 at these schools (A.

681-682), and this is the grade structure actually put into effect,

‘e.g., 1-8 at elementary schools, grade 9 at Brawley, and grades

10-12 at Sedtlatid Neck..

nen)

39 | os

The Halifax County School Board reftised to accept this.

interim desegregation plan. Instead, the County. Board of-

fered-more freedom of choice, while the white citizens of.

Scotland Neck and local white -political: leaders pushed

through arrangenients for the separate system in Scotland °

Neck over the oppesnen of the black community.

C. The Amigniment — If Scotland Neck’ reall the

Doughnet- Shapes Zone for Brawley. -

‘The sudden designation of the town limits of Scotland

Neck as the attendance boundary for Scotland Neck School,.

-as'we have noted, broke all precedent insofar as pupil

assignments in ‘the county were concerned.**? The town .

boundary is in no sense a “natural boundary *? although :the.

- opinion below inexplicably uses that phrase. The boundary -

“is precisely a political and not a natural or geographic

line following notable features of terrain or the like.”

“annexations) ‘follows a meandering cause with more than

twenty sides not far different in character from the “un-

_ couth twenty-eight- sided figuré” involved in Gomillion v.

: Lightfoot, 364 U.S. 339, 340: (1960). :-The Scotland Neck

town limits are not drawn so as to exclude all blacks since

‘the town has. about 42.6% black pupils, but. the limits

do include so large a proportion of the: whites in the area

that the town is substantially “whiter” in population than

the surrounding township.: (See the attendance projections

for ea and i Seotiaina Neck; Map Ns Table im aneke

* By creating the state’s smallest’ -district, and: the first new

district since 1953, Chapter 31 also broké precedent and rev ersed

the trend of consolidating small districts. See note 7, supra.

. 8In Davis v. School ‘Commissioners of Mobile County, 402 U.S.

'. 33, 36, 38 (1971), the Court ordered consideration of assignments

across a major man-made barrier, 4 highway dividing the cant and

west parts of the districts

and Tables.) We note that a separate school system for

Scotland Neck plus four surrounding townships which was

proposed and defeated in 1965 (during the freedom of

choice era) would not have had. a white majority.”

_The secession of Scotland Neck school effectively im-

poses on the county a peculiar zone for Brawley which

must then serve elementary pupils on.all sides of the town.

~The peculiar looking doughnut shaped zone for Brawley—

with the town as. the “hole”—which is created by carving

the town out of the county system is the most flagrant

kind of gerrymander. Yet, the ‘Halifax County Board has

no .practical. choice but to use some, variation of this:

“doughnut” to Serve as arf elementary zone for those

pupils living around the immediate environs of the town

if’ the secession is permitted to proceed, (See Map IV,

Maps and Tables.). | |

The niew town school unit impedes desegregation and has

‘negative effects,” to borrow Judge. Winter’s phrase; in a

- number of different ways. The effects are..negative if the

'. facts are analyzed either in terms of the impact on the

remaining county school system as a w hole, or the impact

on Brgwley and the other four black schools in the eastern

end of the county. ie

e >»

2417S. Bureau of the Census, U.S. Census’ of ‘Population: 1970

GENERAL PoPULATION CHARACTERISTICS, North Carolina, pp. 35-116:

. fo _

Total’ White Negro Other —

Conoconiara Twp. —«—«*'1,006 = -186.- 820

Palmyra Twp. | ~ 1,546 631. 9141

Roseneath Twp... - 1,104 ~~ 338. 766 — -

Seotland Neck Twp. 5,013 2,208. 2,804 1

8,669. 3,363 5,304- . 2

( The Scotland Neck Township total “included 2.869 persons in

Scotland Neck Town. )

| The lower courts focused discussion on the effect df the

secession on the racial percentages in the entire county

system. Judge Sobeloff described it ‘this way:

“The challenged legislation carves an enclave, 57%*

white and 43% black, from a previously 22% white

and 77% black school system. No compelling ar over-

riding state interest justifies the new district, and its

formation has a racially’ discriminatory effect by allow-

ing the white residents of Scotland Neck to shift their

children from a school district where they are part of

a 22% minority te one where they constitute a 57%

majority” ‘(442 F.2d at 597: RooEnote omitted).

Cansidenne the ‘same facts Judge W inter said: “The:

difference between the percentage of white students within

the existing sy stem and the newly-created one for Scotland .

Neck is thus 35%. A more flagrant example of the creation

of a white haven, would be difficult to imagine” (442 F.2d

at 091). By contrast, the opinion of the. majority below,

characterized the white majority in the town schools as

“not large” and focused on the fact that remov ing the

Scotland Neck pupils from the county changed the black

percentag® in the county “only 3 percent” from 77% to

: 80%. We think that the conclusion by the trial. court, and

by the dissenting appeals judges that these statistics show

a substantial impediment to desegregation is far more

persuasive than the opposing view adopted below. The.

; Court’s decision in “Swann when it w rote’ its decision. The

| court below reasoned that where the cr éation of new units

“is designed to further the aim of providing quality educa-

tion and is attended secondarily by: a modification of the

— racial balance, short of resegregation, the federal courts

should not interfere’ Wright v. Council of ‘City of

420

Emporia, 442 F.2d 570, 572 (4th Cir. 1971) (emphasis - f

added). We think this notion that only effective “resegre-

gation” is to be condemned completely misses the mark °

under ‘ Swann. Swann requires “the greatest possible .

degree of actual desegregation,” and a presumption against

one-race schools and othér schools “substantially dispro- .

portionate in their racial composition.” 402 U.S: at 26.

Swann gives the district courts discretion to prevent con- —

_ /struction and site selection decisions that will even tend to

interfere with the elimination of, or threaten to reestablish,

segregation. 402 U.S. at 20-21. The district courts need not

withhold action against. such a threat until resegregation’

is an accomplished fact. The Court of Appeals has ap-

‘ proved the éreation of a system in Scotland Neck which

is substantially disproportionate from the surrounding —

county. Indeed, as we discuss further below, it is also’

substantially disproportionate with the immediate environs

of Scotland. Neck and the east end of the county.

The Court of Appeals also suggested that the secession .

was justified by the fact that the one school within the

town would be “integrated” in accord with the town’s

population. 442 F.2d at 582.: In dealing with the neighbor-

hood school ‘concept Swann. makes it clear that some’

“racially neutral” assignment, plans may be inadequate ,

- to “counteract the continuing effects of past school segrega-

_ tion resulting from discriminatory location. of school sites

or distortion of school size in order to achieve or maintain.

an artificial racial separation,” Swann, 402° U.S. at 28.

_As J udge Wisdom wrote in a famous voting discrimination _

ease, “The ‘promise of evenhanded justice in the future

does not bind our hands in undoing past injustices” United

States v. Louisiana, 225 F.Supp. 353, 396 (ELD. = 1963),

affirmed 380 U.S: 145 nie

—D. The Effect sj Sécession on. Brawley and District I.

We believe that a better understanding of what is ac-

complished by the secession. of Scotland Neck is achieved

by focusing on Scotland Neck and Brawley schools and on st

the other four black schools which make up District I in the

east end of Halifax County. -It is in this area that Chapter

31 had its major impact. The more distant areas of. Halifax :

County are obviously. not nearly so much affected as the

area near Scotland Neck. The following chart shows the

impact of Chapter, 31. on the two schools most directly

involved:.

% . Jo Jo %o

White White Black Black White White Black Black

1968-69 786 80.3% 193 19.7% . 0 Q - 41, 106 100.0%

~(after transfer . _

of grades7 : - 4 \

and 8 from

- Brawley to |

Seotland

Neck) —

1969-70

(Proposed.)

. a) Plan pre- a ; a) .

". , pared by : e & $y .

“State Staff 325 33.7% +640 66.3% ~— 330 30.8% = 740 69.2%

* -b) If Chap- ‘ so nak

ter 31 ;

| Were im- - . _ —

‘/ plemented 399 57.4% 296 42.6% ° =83 9.3% = 805 90.7% .

As Judge Winter noted, “local legislation is enacted as a |

_ Tesult of local desire and pressure” (442 F.2d at 589). The

local initiative | in this case came from whites in Scotland

Neck, in an attempt to keep their white school as white as

possible. Under freedom of choice, only. a handful of the

Students in their school were black. When the J ustice De-

partment insisted upon some desegregation progress for

_ the 1968-69 school year, the County School Board moved

_ the 7th and 8th grades from ‘Brawley to Scotland Neck, _—

, — the — enrollment to 19.7%. The complete de-

CURIS Soc

oo WP atte tases sa amton n> Wad ae amet

segregation plan drawn by state educational officials and

accepted by the Justice Department would have increased

_.. the black. population. at Scotland Neck to 66.3%. It would’

also have assigned whites to Brawley for the first time, re-

ducing the. black enrollment to 69. 2%.

With the ‘creation of a new district, the Scotland Neck

School would remain majority white.” Instead-of a 66%

black majority under the state plan, it would have a 57% . .

white majority and the number 6f w hite students. assigned |

to Brawley would be reduced from 330:to 83. .

| These population shifts are substantial by any test:

(1) the secession reduces Scotland Neck’s black population

by 24 percentage points and increases the white population

- a like amount (from 33,7% W-69.2%. B to 57.4% W-42.6%

B); (2) the secession reduces Brawley’s white population ,

by 21.5 percentage- points and increases the black popula-

tion a like amount (from 30.8% W-69.2%.B to 9.370 W- -

90.7%. B), These changes would make both Brawley and

Scotland Neck substantially racially disproportionate, .

trict I—the entire eastern region has ranged from 76%- —

- 79% black in recent years (see Table III, Maps and Tables).

The combined populations of the Scotland Neck Unit (the

town) and the Brawley zone surrounding it are about 69.5%

black (Table IIT). Obviously creating a 90.7%. black Braw-.

: ley perpetuates its racial identification and it is entirely —

- unjustifiable to reject the state interim plan. which would

' make Brawley 69.2% black, an enrollment much more nearly:

i conforming to the demography of the area.

—

A similar plain pattern emerges when figures for Dis- _

_ trict I.as a whole are ee es Fables III. and IV; _-

- and Tables):

| (June 1970) -' & White % Black

(1) Interim Plan: | : i

District TS 22.3% | 17.6%

2 |

(2) Tf Chapter 31 implemented :

(a) Séotland Neck School 57.4% 42.6%.

(b) Rest of DistrictI 14.6%. 85.4%

The very considerable racial concentrations.and racial dis-

proportions which would be-created by the implementation | |

of Chapter 31 are plainly inconsistent with the goal of

gation” and of eliminating schools identified as one-race

schools: Swann v. Charlotte-Mecklenburg Board of Edu -

cation, 402 U.S. 1, 26 (1971).

This Court made it plain in Swann that the “constitu- —

tional command to desegregate schools does not mean that

every school in every,cornmunity must alav ays reflect the ~”

racial composition of the school sy stem as a whole” (402

US. at 24). ‘We make no contrary argument, nor do we.

|_argue that there must. be any particular degree of racial:

balance at the schools involved. But Swann also held that

in dual systems “the need for remedial criteria of sufficient

specificity. to assure a school aithority’s compliance with ~

its constitutional duty warrants a presumption against

schools that. are substantially disproportionate in their

_ racial composition” (402 U.S. at 26). If was further stated

that this presumption could only be met by a. showing »

that continuing disproportionate schools were “not the

result of pr esent or past cmneeeey action” by school

”

€

Ree < cilia

PP EE Wi ie TL yh

ee rere

ie re

boards. + 402 U.S. at 26.%° Applying this test to Scotland

Neck and Brawley presents little difficulty since their con-_

‘ tinued character as schools for whites and blacks, respec-:

tively would. obviously reflect the historic dual pattern in

the community. It might be noted that Judge Craven,

writing for the majority below, held that the. inability

of Seotland Neck citizens to: spend more money on. educa-

tion without ‘secession justified the racial disproportion i

ereated by the separation. 442 F.2d at 583. Judge W inter,

in dissent, retorted that “a community should not’ be

permitted to buy its way out of. Brown.” 442 F.2d‘at 592:

\\ Swann made it clear that Judge Winter was correct, and

‘that the burden to justify a continued one-race or sériously

dixproportionate school cannot be satisfied by such a show-

ing \where the original segregation in the institutidns so

2 plainly results: ron discrimination, ‘The s secession plu in to

25 The Yall pdragra} ps “from Ww hich these quotations are d

reads as follyws. (402 U.S. at 26) :. 7 os

In light, of the above, it should be clear that the tutined.

of some small nuinber of one-race, or virtually onerace, schools -

within a district is not in and of itself the mark of a system

that still prattices segregation by law. The district ‘judge. or |

school authorities should make every effort to achieve the

greatest possible\degree of actual desegregation and will thus

neessarily be conesrned with fhe elimination of one-race schools.

No per set rule can\adequately ‘embrace <all ‘the difficulties of

reconciling the compxting interests involved; but in a system

with a ‘history of segregation the need: for ‘remedial eriteria

of. sufficient specifici ty te~assure a school authority’s compli-

ance with . its constitutional duty warrants a a

avainst schools that are ‘substantially disproportionate their

_, racial composition. Where the school authority’ s proposed plan

, for conversion from a dual to a unitary system contemplates _

‘the continued ‘existences of some schools. that. are all or pre- *

. dominantly-of one race, they have the. burden of showing - ‘that

‘such school assignments are ‘genuinely: nondiscrigninatory. Tlie

court shonld serutinize stich schools, and-the burden tpon the

“school authorities will be-ts satisfy the court that their racial

. composition is not the result of present ¢ or past discriminatory

‘action on their part. :

‘i . - . : \

‘ : ‘ \

’ ‘ \.

. : - s . . 4

‘ _ :

my keep ‘Brawley. virtually ‘all-black and Scotland - Neck S.

_ schoql with a disproportionate and unusual concentration ~

of whites is plainly ——— “under the standaxds of

Swann.

o ‘

E.. The Interdistrict Transfer Plans.

Immediately after enactment of Chapter 31. a number diet

events occurred which had important impact. on desegrega-

tion, The Scotland Neck junior high school site, located

outside the town limits, would have been unavailable to

‘the new town school system because -of ‘its. location. This

difficulty was solved’ by the’ new town system leasing the —

school from the Halifax County system for one doflar a

year, and extending the distri¢t to cover: 10 more acrgs.

A. 476-477. The need for this four ,classroom building. was

related to the anticipated transfer of county residents

to the town schools, an eventuality planned from the out-

set of the planning for the new district. The town had

bit 695 resident pupils and could accommodaté about 1,000.

students. 314 F.Supp. at. 71; A. 294. The Scotland Neck

School Board promptly offered to admit any county

resident .pupil who. paid a tuition charge (with a special.

discount rate for.families with more than one: child). As .

expected, almost all white pupils who lived in the county

but previously attended Scotland Neck promptly paid de-

posits to continue their attendance at Scotland Neck. By

the time of the preliminary injunction hearing in August :

Bee .1969—with. the opening of school imminent—-35 hite and

10 black county. resident pupils had made tuition deposits

for Scotland Neck School. 3l¢ F.Supp.~at 71. -Further-

* more, the Scotland Neck and Halifax County School Boards

_ agreed. that for two years black pupils living within the .

go to waned High School astra free. 314 F. Supp. at 71.

ME WRI cor eZ ITC, — — se . nanees .

rie le : u x i F SARA a,

> .

. : i: : e :

eX \ ori to” go. to an’ fategeatea schoo], would have to pay

a oe tuition, : The dist et judge found that “in view of the:

a = evonomiles-@f the- Sttuation . . [there was] an inability of

2 4 . Rene to affor the transfer fees. Bon (314 F. Supp. at 78).

>The retina jnjunetion aginst: the new ‘unit: a

, we ae transfer Scheme: Thereafter, ‘the board filed a pleading

Ss ‘stating | that it intone: to: allow’ only transfers which .

"conformed. to. the law ‘and court orders; but rather than, :

> abandoning the idea. of transfers ‘the board sought in the :

- Fourth Cireuit- to have : it ‘approved’ (442 F.2d at 592).

‘The Fourth Cirenit analyzed the. plan in these tems :, :

w ioe The net: result of these transfers’ w would have been to

\ ra have 74 percent Ww hité students: and” 26. percent black

7. = “students. in ‘the Scotland Neck. system. ° “We eoriclude-

\* “that. these transfers Ww ould have’ tended. tow ard ‘estab-

¥ ‘ 7 o “tishimént of a resegregated’ system. and that thé trans-

a i ‘ ie fer plan violates: the eqial protection clause of the: |

~ “". .* Fourteenth “Amendment: See Monroe -‘v. Board, of —

2 Commissioners of: the: City of Jaékson, 391 U.S. 450,

+” 88 S.Ct: 1700, 20. L.Ed. 2d 733 (1968).. (442, F.2d 583.”

bs 584; foatnote omitted.) he

.7 ; “(Phe local effect “ on Brawley School and hiatriet 3 is even

a .. ‘more drastic and reyeals the most complete. success. of *

4 Py: -- the transfer plan i in. keeping. the five black schools: all black:.

sh 2 ee:

: “The transfer plan w ould have left the five remaining schools |

“in District I 97.8% Black. (Table TV; Maps and Tables.)

Thus j is the full dimension of the evasive scheme’ -unveiled.

* The district ° ‘tedine treated: Chapter 31. and, the. transfer =

_ plan together as a package when he granteq the ees

bE wigepeal This’. was necessary to deal with the reali-~

- ties of the situations” Months: nt, when n writing a final

peo ©

opinion, the. district court still found that the secession cre-

ated, a “refuge for white students” and “interferes with the

desegregation of ‘Halifax County School, System” even with-

out the effect of the trensters. 314 Fy Supp. 18. -

oF Other Effects of thie Secession of Scotland Neck.

_ Beyond the racial ratios and. percentages involved, Chap-

: ter 31 had. other negative effects. Of course the‘essence of - |

its operation is to prevent the use of the pairing technique

as'a means of desegregating Brawley and Scotland Neck.

“These: two schools three-fourths of a,mile and a 5 minute

. _ bus ride apart (A 276), serving the’ same grades, were

naturally slated for some-sort of pairing or consolidation

in the event .of desegregation. Chapter 31 interjects anew :

; boundary “ine to prevent the use of the pairing or consoli-

- dation technique’ (A. 431). As such it impedes a necessary

and conventjonal desegregation technique. Swann v. Char--

way the North Carolina Anti- -Bussing statute impeded the

<. lotte- Mecklenburg Board of Education, 402 U.S. 1, 27 .

_ (1971). In’ this respect, Chapter 31 operates | similar to the

“use of transportation and other necessary desegregation

techniques and‘is unconstitutional on this ground. North |

" , 45-46 (1971) ; cf. Lee v. Nyquist,-318 F. Supp. 710 (W.D

- RY. 1970), affirm per curtam, 402 U.S. 935: (1971). :

“The sécossion not only preve ts the desegregation of the 7

’ traditional all-black school at Brawley, it also keeps.a-white

majority at Scotland Neck. The district judge found -that

white proponents of Chapter 31 viewed it as ah alternative

to establishing private schools in the face of desegregation

‘|. _ with a black majority in each school reflecting the |

tion patterns.” 314 -F. Supp. at 73; A. 431. The relevant

precedents made it plain to the white people of Scotland |

Neck wan all-white cages schools could receive no public |

g ts un ee, c th eg MS ome

eee ee ee ee es —_

ine we. enees,

; e

ee '

Be ee ey

-: support or tuition grants." Since ‘a private school would

: lose public funding, a separate city unit with a more “ac. .

ceptable” racial pattern was viewed as preferable by the

proponents of Chapter 31.. The new unit would not be all

white and could thus get public tax funds.- It would have a

white majority because the chosen boundary embraced a.

white majority. Scotland Neck would become a quasi-°

private school for the tuition paying white residents of the

County:who transferred there. They would have the bene-

fit of public funding for the school rather than attending _

financial inability of many county Negroes to pay the tuition —

insured the maintenance of a whit? majority school. Under

‘this scheme the Scotland Neck School would be “white”

enough. in population to be acceptable to the whites and

| would have just enough blacks to enable-it to achieve public

financial support. It was a sophisticated evasion of the duty

to désegreggted public ‘schools.

With sensitive perception, Judge Winter's dissenting

opinion refers to: the psychological. effects on the black. .

‘students of the white abandonment of the Halifax County \

26 Hawkins v. North Carolina State Board of Education, 1'1 Race

Rel. L. Rep. 745 (W.D. N.C., C.A. No. 20679 March -31, 1966)

(three-judge court) ; Griffin v. County School Board, 377 U.S. 218 -

(1964) ; Hall v. St. Helena Parish School Board, 197 F. Supp. 649.

(E.D. La. 1961) ; aff'd, 368 U.S. 515; Poindexter -v. Louisiana Fi-

nancial. Assistance Commission, 275 F. Supp. 833 (E.D. La. 1967),

aff'd, 389 U.S- 571 (1968); Poinderter v. Louisiana Financial

‘. . Assistance Commission, 296 F. Supp. 686 (E.D. La.'1968), affirmed

' per curiam, 393 U.S.°16 (1968) ;.Lee v. Macon County Board of

Education, 267 F. Supp. 458, 475 (M.D. Ala. 1967), affirmed per

‘curiam, sub nom. Watlace Vv. United States, 389 U.S. 215 (1967) ;

Griffin v. State Board of Education, 296 F. Supp. 1178 (E.D. Va..

1969) ;’ Brown. v. South Carolina State Board of Education, 296

F. Supp. 199 (D. S.C. 1968), affirmed, 393 U.S. 222 (1968)-; Coffey

. .v. State Educational Finance Commission, 296 F. Supp. 1389 (S.D..

“Miss. 1969) ; United States v. Tunica County School Distriet, 323

F. Supp. 1019 (N:D. Miss. 1970), affirmed, 440 F.2d 1236 (5th Cir.

4973). e o

system. 442 F.2d at 591; also see at 590. The approval of |

Chapter 31 by the court below is premised in part on the.

idea that the purpose of curbing or diminishing white flight

_ from a unitary. school system “is entirely consistent. with -

- and may help implement the Brown principle.” (442 F.2d

at 581) Rather than being laudable the plan is fundamen-

tally racist in its” assumptions and underlying theory.

Judge Sobeloff answers this theme in Brunson v, Board of - - -

Trustees of School District No. 1 of Clarendon County,

S. C., 429 F.2d. 830, 826 (4th. Cir. 1970).. Brown, he points

_ out, was not premised on any notion that “white children

are a precious resource which should be fairly apportioned,” ~

or that “black children will be improved by association with

their betters” (tbid:). “But school segregation is forbidden

simply because its perpetuation is a living insult to the black

children and immeasur@bly taints the education they receive.

‘This is the precise lesson of Brown” (ibid., Sobeloff, J.). So,

too, the new sécessionist Scotland Neek school administra-

tive unit would be a'living insult to the black pupils of. Hah-

fax County. : . ’

‘Finally, the district court judgment might well be

‘affirmed ‘as within its power to prevent school policies

from influencing residential patterns in a segregationist

fashion so as to lock in school Segregation in the future.

It is entirely obvious that creation of the new Scotland

near the boundary, to move into’ the town. Swann says

that school policies “may well promote segregated residen- |

tial patterns, which, when combined with neighborhood

zoning,’ further tock the school. system into the mold of

Separation of the races.” 402 U.S. at 21. District courts

. have the remedial. responsibility “to see ‘to it that future

school construction and abandonment is not used and does .

not serve to perpetuate or re- establish the dual system”,

desegregation plan which ignored the Scotland Neck town

7 houndary—as it has always been ignored in the past—is

ment of separation. .

some.” (Swann, 402 U.S. at 28.) “No fixed or even sub-

‘stantially fixed guidelines can be established as to how

We think the. technique may. be appropriate in other in-

stances as well, but »e do not ask that the Court prejudge

: the question of interdistrict remedial transfers across long

_ and this case does not have the kind. of record upon which .

recently uséd as an instrumentality of segregation—may

Judge Wisdom did. Let v. Macon County Board of ' |

(ibid.). The judgment of the district court requiring a

well within the discretionary authority of the district court

to prevent such threatened ‘perpetuation or ‘ré-establish-

The broad discretion of the district our in formulating |

a remedy for the dual system includes the power to use a

be administratively awkward, inconvenient, and even .

bizarre in some situations and may impose burdens én -

far a court can go, but it must be recognized that there

are limits” (ibid.). We suggest. that the technique of as-

signing pupils across district lines of administrative tinits

established by state law—a technigue long, successfully and

be used as a technique of desegregation: This is particu- -

larly true in a case such as Halifax County where inter-

district transfers are apart of the tradition of the system. .

established or racially untainted boundaries. Cases involv-

ing such issues are being litigated in: the lower courts —

to adequately judge such metropolitan integration disputes.

It is enough. to decide the present case. to conclude as

Education, 448 F.2d 746, 752 (5th Cir. 1971): “New -bound-

aries: cannot be drawn where they: would result in less

instrumental in promoting segregation.” on

‘ CONCLUSION

For the foregoing reasons, it is ‘respectfully. submitted +.

that the judgment. of the* Court of, Appeals should be

is Court for the Kastern District of porn Carolina should

’ be reinstated. ‘ ,

Respectfully. submitted,

Jin GReennene | |

JaMEs M. Nasrit, Ir

Norman J. CHACHKIN .

. 10 Columbus Circle

New York, N.. Y.. 10019

| _s “7 WS, LeVon NE CHAMBERS

‘ a . | 237 West Trade Street

a aa Charlotte, N. C. 28202

_ Apam STEIN

157 East Rosemary treet

Chapel Hill, 'N. C. ai514

James R. WALKER, JR. .

501 .West Third Street

’ Weldon, N. C. 27890

Samuer S. Mircnen, | 7

12614 East Hargett Street

Raleigh, N.C. 27601

Attorneys. for Petitioners

‘reversed and the judgment of the United States, District,

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- 70-187

Pa ‘Appendix to petitioners’ brief

NOT PRINTSD.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.