# Petitioners Brief — United States v. Scotland Neck City Bd. of Ed. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0052%3A11 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Brief - **Published:** January 1, 1972 - **Citation:** 407 U.S. 484 ## Text t Me 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 = o ! 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 t - 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) ao 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- - 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 iW 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-- / 13 “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 + -. - pS ee ay ie % a B ; ek RT I ET Ae I ANE i Fai OE ie it ace SFY See 8) 14 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. 17 ‘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 4 ’ ’ ” PME AC ee RIN " sooneene . . ‘ of ene a , * See note 7, supra: _ *See note 2, supra. ey : Tables, Tables I and IV). ‘The black schools would remain - all-black’ or virtually 2 all-black. , e 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 e ‘ ; : . 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 f ” 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 e 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- _ .*. 25 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: a. § = - S PEE TROTTER SOY GI SRN RATION dy ‘i ” r x “~ bs . . NILE LO LENNIE TH BU carga y EEL NI BTS BT 68 PNR SE . © fae ee ee ee ee ee ee ee ee ee ee ee 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- © s 28 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. 29 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., 30 433 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 31 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 relevant ‘to school assignments—but also the boundgries of its own school district in order to promote. and facil ate the dual system. " y 37 e 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 as much school ee as there was residential inte- © . gration in the area. 7 8 . o 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.” Maps show that the town line (developed. by various © “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 pnw pacman © ie Se ASST RS RN ta TF ROTI RRS EAE POE PTE IE LAS aa MARAT 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.). | | e ° 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. ) e 4 41 | 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 of Appeals majority did not have the benefit of this © ; 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:. Scotland Neck School © . Brawley School - % . 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- ly 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, . Swann, supra, 402 U.S. at 26. The pupil population in Dis- © 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): 45 | (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 achieving “the greatest possible degree of actual desegre- © “4 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 . . : 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 © ee 49 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 .t F . ‘ . x : ; . 78 . . - : ~ . e ry . . * . . * = ; . ’ : . : bd . 7 . . . . . . . . . 3 . : . . E 53 * a . " * . . > cas . « . ‘io . . : ’ . = . . > . “ a : - o st . “ . \ . id e: ag . ° . * . . ° * = . - : ba . . 7 ‘ . ‘ . re a : ; . : . : . : : . RD Rrcween yy te ks J . . ; Py . . 2 e - e . 7) . “, . * . . & . . . 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A val . . 5 P m . . ‘e - 4 . . . ; : 4 ~ i 4 x. é . ” : . soe ese , ° . . . 7 ¥ . . s 2 : F . . e . met mieeds s - 70-187 Pa ‘Appendix to petitioners’ brief NOT PRINTSD. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0052%3A11. Public record. Not legal advice.