DOCUMENT RESUME

ED 073 212 UD 013 319

TITLE Leading Court Decision Pertinent to Public SchoolDesegregation.

INSTITUTION Congress of the U.S., Washington, D.C. HouseCommittee on the Judiciary.

PUB DATE 10 Jan 72NOTE 180p.; Committee print, House Committee on the

Judiciary

EDRS PRICE MF-$0.65 HC-$6.58DESCRIPTORS Civil Rights; *Constitutional History; *Federal Court

Litigation; Federal Courts; Federal Laws; Federal_State Relationship; *Integration Litigation;Integration Methods; Racial Balance; RacialIntegration; *School Integration; *Supreme CourtLitigation; Transfer Programs; United StatesHistory

ABSTRACTThis document comprises eight federal court decisions

pertinent to public school desegregation: (1) "Brown v. Board ofEducation," 347 U.S. 483 (1954); Mr. Chief Justice Warren deliveredthe opinion of the Supreme Court; (2) "Bolling v. Sharpe," 374 U.S.497 (1954); Mr. Chief Justice Warren delivered the opinion of theSupreme Court; (3) "Brown v. Board of Education," 349 U.S. 294(1955); Mr. Chief Justice Warren delivered the opinion of the SupremeCourt; (4) "U.S. v. Jefferson County Board of Education," 372 V. 2d836 (1966); Circuit Judge Wisdom delivered the majority opinion ofthe United States Court of Appeals for the Fifth Circuit; DistrictJudge Cox delivered a dissenting opinion; (5) "U.S. v. JeffersonCounty Board of Education," 380 F. 2d 385 (1967), Certiorari denied389 U.S. 840 (1967); on March 29, 1967, the United States Court ofAppeals Fifth Circuit held that school boards have an affirmativeduty to bring about integrated, unitary school systems; :6) "Green v.School Board of Virginia," 391 U.S. 430 (1968); Mr. Justice Brennandelivered the opinion of the Supreme Court; (7) "Swann v. Board ofEducation," 402 U.S. 1 (1971); Mr. Chief Justice Burger delivered theopinion of the Supreme Court; and (8) "Board of Education v. Swann,"402 U.S. 43 (1971); Mr. Chief Justice Burger delivered the opinion ofthe Supreme Court. (JM)

92d Congress2d Session J CONNITTEE PRINT

LEADING COURT DECISIONS PERTINENT TOPUBLIC SCHOOL DESEGREGATION

r-

COMMITTEE ON THE JUDICIARYHOUSE OF REPRESENTATIVES

U.S. DEPARTMENT OF HEALTH.EDUCATION a WELFAREOFFICE OF EDUCATION

THIS DOCUMENT HAS BEEN REPRODUCED EXACTLY AS RECEIVED FROMTHE PERSON OR ORGANIZATION ORIG-INATING IT POINTS OF VIEW OR OPIN-IONS STATED DO NOT NECESSARILYREPRESENT OFFICIAL OFFICE OF EDU-CATION POSITION OR POLICY

JANUARY 10, 1972

c..1z

cozestqem4

CZ> Printed for the use of the Committee on the Judiciary

U.S. GOVERNMENT PRINTING OFFICE

71-5N WASHINGTON : 1972

COMMITTEE ONEMANUEL CELLER,

PETER W. RODINO. JR.. New JerseyHAROLD I). DONOHUE. lias,-aclutsettsJACK DROOKS. TexasJOHN DOWDY. TexasROBERT W. KASTENMEIER. WisconsinDON EDWARDS. CaliforniaWILLIAM I.. HUNGATE. MissouriJOHN CONYEIO in.. MichiganANDREW JACOBS, Ja..JOSHUA EILBERG. Petun-ivaniaWILLIAM F. RYAN. New YorkJEROME IL W_\I.DIE. CalifornEDWIN W. EDWARDS. 1.ouh.ial...WALTER FLOWFRS. AlabamaJAMES R. MANN. South CarolinaARNER J. NIIKVA. Minot%PAM S s lllllllllllllllllllllllllJOHN F. SEIBERLING. OhioJANIES A 110FREZE. South DakotaGEORGE E. DANIELSON. California1101:ERT F. DRINAN. Ma,saelnu-etts

THE JUDICIARYNew York. Chairman

WII.I.1 A NI M. MILCI7I.1.0C11. OhioRICHARD II. l'OFP. VirginiaEDWARD IIFTCHINSON. MichiganROBERT AlCI.ORY, IllinoisHENRY I'. SMITH III. New YorkCHARLES W. SAND:HA:V.3K_ New JerseyTOM RAIISBACK. IllinoisEDWARD G. MESTER. JR.. PennsylvaniaCHARRLESE WIGGINS. CaliforniaDAVID W. DENNIS. IndianaHAMILTON FISH. in.. New YorkR. LAWRENCE: COUGHLIN. Pente9, inatWILEY MAYNE. IowaLAWRENCE J. HOGAN. MarylandWILLIAM J. KEATING. OhioJAMES D. MeKEVITT. Colorado

ilgss E. DICK. Staff DirectorBESJAMM L. ZELEKKO. General Counsel

GARSER J. CLINE. CounselIltattstarr Pmts. Counsel

WHAAAM P. SHATTUCK. CounselJEROME M. ZEWMAX, Counsel

JosErtt nactuat. Law Recision CounselDONAL() G. BENS, Associate Counsel

FnAsut.tx G. l'oLtz. Associate CounselTHOMAN K MOOSET. Associate Counsel

Ssnuta. Ganatsos III, Associate Counwl

(ID

CONTENTSPage

Brown v. Board of Education. 347 U.S. 483 (1954) 1Bolling v. Sharpe, 374 U.S. 497 (1954) 8Brown v. Board of Education, 349 U.S. 294 (1955) 10U.S. v. Jefferson County Board of Education, 372 F.2(1 836 (1966) 15C.& v. JcfferaOn County Board of Education, 380 F.2(1\385 (1967), Cc-rt.

denied 389 U.S. 810 (1967) . 82Green v. School Board of Virginia, 391 U.S. 430 (1968) 130Swann v. Board of Education, 402 U.S. 1 (1971) 142,115Board of Education v. Swann, 402 U.S. 43 (1971) 173 174

..: (m

BROWN ET AL. 'D. BOARD OF EDUCATION OF TOPEKA ET AL.

O. 1. APPEAL FROM THE UNITED STATES DISTRICP COURTFOR TIIE DISTRICT OF KANSAST

Argued December 9, 1952.Reargued December 8, 195:1.Decided May 17, 1954.

Robert L. Carter argued the cause for appellants in No. 1 on the orig-inal argument and on the reargnment. Thurgood Marshall argued thecause for appellants in No. 2 on the original argumert and SpottswoodW. Robinson, 111, for appellants in No. 4 on the original argument,and both argued the cause, for appellants in Nos. 2 and 4 on the rear-guinea. Louis L. Redding and Jack Greenberg argued the cause forrespondents in No. 10 on the original argument and Jack GA enbergand Thurgood Marshall on the rearg,ument.

On the briefs were Robert L. Carter, Thurgood Marshall, Spotts-wood 'TV. Robinson, III, Louis L. Redding, Jack Greenberg, GeorgeE. 0. Hayes. William 1?. Ming. Jr., Constance Baker Motley. James

Yabrit, Jr.. Charles S. Scott, Frank I). Reeves, Harold R,Boul-Wa re and Oliver 11. Hill for appellants in Nos. 1,2 and 4 and respond-ents in No. 10; George Johnson fm appellants in Nos. 1. 2 and 4;and Loren Miller for appellants in Nos. 2 and 1. Apilm, Shores and_1. T. Il'aide» sl,n'e on the Statement as to Jurisdiction and a briefopposing a Motion to Dismiss or Affirm in .No. 2.

Paul. i/so», Assistant Attorney Gene a1 of Kansas, argued thecause for appellees in No. 1 on the original argument. and on the rear-gument. With him on the briefs was Harold R. Pat.scr, AttorneyGeneral.

John W. Davis argued the cause for appellees in No. 2 on the orig-'nal argument and for appellees in Nos. 2 and 4 on the reargument.With him on the briefs in No. 2 were T. C. Collison, Attorney Generalof South Carolina, Robert McC. Figg, Jr., S. E. Rogers, William, R.Meagher and Taggart 'nipple.

I. Lindsay Almond; Jr., Attorney General of Virginia, and T . JustinMoore argued the cause for appellees in No. 4 on the original argu-ment and for appellees in Nos. 2 anti 4 on the reargument. On thebriefs in No. 4 were J. Lindsay Almond. Jr.. Attorney General andHenry '1'. Wickham. Special Assistant Attorney General. for theState of Virginia and 7'. Justin Moore. Archibald O. Robertson. John,W. Rich and 7'. Justin Moore, Jr.. for the Prince Edward CountySchool Authorities, appellees.

tTogether with No. 2. Briggs et a). Elliott et at., on appeal from the United State,:District Court for the Eastern Dictriet of South Carolina. argued December 9-10. 1952.reargued December 7S, 195: :: No. 1. Davis et al, V. County Schott; norm/ of Prince EdwardCounty, Virginia. et at., on appeal from the United States D1 triet Court for the EasternDistrict of Virginia. argued December 10. 1952. reargued December 7-8. 1953: and No, 10.Gebhart ct al. v. Belton ct at., on certiorari to the Supreme Court of Delaware, arguedDecember 11, 1952, reargued December 9, 195:1.

(1)

H. Albert Young, Attorney General of Delaware. argued the causefor petitioners in No. 10 on the original argument and on the reargu-ment. With him on the briefs was T,ouis .1. Finger. Special DeputyAttorney General.

By special leave of Court, Assistant Attorney General Rankin ar-gued the cause for tho Unii2d States on the rearrnment, as ainimscuriae. urging reversal in Nos. 1. 2 and and affirmance in No. 10. Withhim on the briel were Attorney General Brownell. Philip Elman. Leon/7»rou, William .1. Lamont and M. Magdalena Schoch. James P. JIe-Granery. then Attorney General, and Philip Elma» filed a brief for theUnited States on the original argument, as amicus curiae, urging re-versal in Nos. 1.2 and 4 and affirmance in No. 10.

Briefs of amici curiae supporting appellants in No. 1 were filed byShad Polier,Will Maslow and Joseph B. Robison for the AmericanJewish Congress; by Edwin .1. Lukas, Arnold Forster, Arthur Gar-field hays. Frank E. Korelsen. Leonard Haas. Saburo Kido and Theo-dore Leskes for the American Civil Liberties Union et al.; and byJohn Ligtcnberg and Selma if. Borchardt for the American Federation of Teachers. Briefs of amici curiae supporting appellants in No. 1and respondents in No. 10 were filed by Arthur .1. Goldberg andThomas E. Harris for the Congress of Industrial Organizations andby I'hineas indritz for the American Veterans Committee. Inc.

Mn. CHIEF Jusricu WAnnEx delivered the opinion of the Court.These cases come to us from the States of Kansas, South Carolina.

Virginia. and Delaware. They are premised on different facts anddiflerent local conditions, but a common legal question justifies theirconsideration together in this consolidated opinion:

1 in the Kansas ease. Brown v. Board of Edacation, the plaintiffs are Negro children ofelementary school age residing in Topeka. They brought this action in the United States Dis-trict Court for the District of Kansas to enjoin enforcement of a Kansas statute whichpermits. but does not require, cities of more than 15,000 population to maintain separateschool facilities for Negro and white students. Kan. Gen. Stat § 72-1724 (1949). Pursuantto that authority, the Topeka Board of Education elected to establish segregated elementaryschools. Other public schools in the emunumity, however. arc operated on a nonsegregatedbasis. The three-judge District Court. convened under 28 U.S.C. §§ 2281 and 2284, foundthat egregation in public education has a detrimental effect upon Negro children. but deniedrelief on the ground that the Negro and white schools were substentially equal with respectto buildings. transportation, curricula, and educational qualifications of teachers. OS F.Sup!). 797. The case is here on direct appeal under 28 § 1253.

In the South Carolina case. Briggs v. Elliott, the plaintiffs are Negro children of bothelementary and high school age residing in Clarendon County. They brought this action inthe United States District Court for the Eastern District of South Carolina to enjoinenforcement of provisions in the state constitution and statutory code which require thesegregation of Negroes and whites in public schools. S.C. Const., Art. XI. § 7 ; S.C. Code§ 5377 (1942). The threejudge District Court, convened under 23 U.S.C. §§ 2281 and 2234,denied the requested relief. The (spurt found that the Negro schools were Inferior to the whiteschools and ordered the defendants to begin immediately to equalin the facilities. But thecourt sustained the validity of the contested provisions and denied the plaintiffs admissionto the white schools during the equalization prograni. 98 F. Supp. 529. This Court vacatedthe District Court's judgment and remanded the case for the purpose of obtaining thecourt's views on a report filed by the defendants concerning the progress made in theequalization program. 342 U.S. 350. On rennuld. the District Court found that the substLottalequality Mal been achieved except for buildings and .hat the defendants were proceedingto rectify this inequality as well. 103 F. Supp. 920. The case is again here on direct nppealunder 23 U.S.C. r 1253.

In the Simi.' case. Davis v. County fhitool Board, the plaintiffs are Negro children ofhigh school age residing in Prince Edward County. They brought this action in the l'nitedStates District Court for the Eastern District of Virginia to enjoin enforcement of provi-sions in the state constttetion and statutory code which require the segregation of Negrorsand whites In pub.uc schools. Va. Coast.. § 140: Va. Code § 22-221 (1950). The threeJudgeDistrict Court, convened under 28 U.S.C. §§ 2281 and 2284, denied the requested relief. Thecourt found the Negro school Inferior in physical plant, curricula. and transportation, andordered the defendants forthwith to provide substantially equal eurrieula and transportationand to "proceed with all reasonable diligence and dispatch to remove" the inequality inphysical plant. But. as in the South Carolina case, the court sustained the validity of thecontested provisions and denied the plaintiffs admission to the white schools during the

3

In each of the cases, minors of the Negrorace, through their legalrepresentatives, seek the aid of the courts in obtaining admission to thepublic schools of their community on a nonsegregated basis. In eachinstance, they had been denied admission to schools attended by whitechildren under laws requiring or permitting segregation according torace. Thi: segregation was alleged to deprive the plaintiffs of the equalprotection of the laws under the Fourteenth Amendment. In each ofthe cases other than the Delaware case, a three-judge federal districtcourt denied relief to the plaintiffs on the so-called "separate but equal-doctrine announced by this Court in Messy v. Ferguson, 163 U.S. 537."Under that doctrine, equality of treatment is accorded when the racesare provided substantially equal facilities, even though these facilitiesbe separate. In the Delaware case, the Supreme Court of Delawareadhered to that doctrine. but ordered that the plaintiffs be admitted tothe white schools because of their superiority to the Negro schools.

The plaintiffs contend that segregated public schools are not "equal"and cannot he made "equal," and that hence they are deprived of theequal protection of the laws. Because of the obvious importance of thequestion presented. the Court took jurisdiction.' Argument was heardin the 1952 Teri,). and margument was heard this Term on certainquestions propounded by the Court.'

lleargument was largely devoted to the circumstances surroundingthe adoption of the Fourteenth Amendment in1868. It covered exhaus-tively consideration of the Amendment in Congress. ratification by thestates, then existing practices in racial segregation. and the views ofproponents and opponents of the Amendment. This discussion and ourown investigation convince us that, although these sources cast somelight. it is not enough to resolve the problem with which we are faced.At best. they are inconclusive. The most avid proponents of the post-War Amendments undoubtedly intended them to remove, all legaldistinctions among "all persons born or naturalized in the UnitedStates.- Their opponent just as certainly. were antagonistic to boththe letter and the spirit of the Amendments and wished them to havethe most limited effect. What others in Congress and the state legisla-tures had in mind cannot be determined with any degree of certainty.

.111 additional reason for the inconclusive nature of the Amendment'shistory. with respect to segregated schools, is the status of public edit-

equalization program. 103 r. Sapp. 337. The case is here on direct appeal under 29 r.s.c.§ 1253

In the Delaware case. Gebhart v. Belton, the pinintiffs are Negro children of bothelementarr and high school age residing in New Castle County. They brought this action In theDelaware Court of Chnncery to enjoin enforcement of provisions In the state constitutionand statutory code which require the segregation of Negroes and whites in public schools.Del. Con,t.. Art. X. § 2: Del. Rev. Code § 2631 (1935). The Chancellor gave judgment forthe plaintiffs and ordered their immediate admission to schools previously nttended only bywhite children. On the ground that the Negro schools were Inferior with respect to teachertraining. pupilteacher ratio, extracurricular activities , physical plant. and time anddistance involved In travel. 87 A. 2d 862. The Chancellor also found that segregationitself results in on inferior education for Negro children (see note 10. infra). but did notrest Ids decision on that ground. Id., at 865 The Chancellor's decree was nffirmed I)) theSupreme Court of Delaware. which intimated. however, that the defendnnts might be ableto obtain a modification of the decree after equalization of the Negro and white school-ihad been accomplished. 91 A. 2d 137.. 1. The defendants. contending only thnt the Dela-ware courts had erred in ordering the lin ediate admission of the Negro plaintiffto the

U.S.Lwhite schools, applied to this Court for cttiorari. The writ was grnnted, 344 891.The plaintiffs. who were successful below, did not submit a crosspetition.

344 U.S. 1.141.891.3 345 U.S. 972. The Attorney General of the United Stntes participated both Terms as

aMICUA curiae.

cation at, that time.' In the South. the movement toward free commonschools, supported by general taxation, had not yet taken hold. Educa-tion of white children was largely in the hands of private groups.Education of Negroes was almost nonexistent. and practically all ofthe race were illiterate. In fact. any education of Negroes was for-bidden by law in some states. Today, in contrast. many Negroes haveachieved outstanding success in the arts and sciences as well as in thebusiness and professional world. It is true that public school educationat the time of the Amendment had advanced further in the North. butthe effect of the Amendment, on Northern States was generally ignoredin Lie congressional debates. Even in the North. the conditions of publiceducation (lid not approximate those existing today. The curriculumwas usually rudimentary: ungraded schools were common in ruralareas: the school term was but three months a year in many states: andcompulsory school attendance was virtually unknown. As a conse-quence. it is not surprisinw that there should be so little in the historyof the Fourteenth Amendment relating to its intended effect on publiceducation.

In the first cases in this Court construing the Fourteenth 1mend-ment. decided short ly a fter its adoption. the Court interpreted it asproscribing all state-imposed discriminations against the Negro race.'The doctrine of "separate but equal" did not, make its appearance inthis Court until 1896 in the case of Ples.sy v. Fergtmon..gypm. involvingnot education but, transportation.' American courts have since laboredwith the doctrine for over half a century. In this Court. there havebeen six cases involving the "separate but equal" doctrine in the fieldof public education.' In CrinaitliTi7County Board of docalion. 17517. S. 528. and Gong Lunt, v. Rice, 275 17. S. 78. the validity of the

For a general study of the development of public eliCation prior to the Amendment,see Ruth and eremin. A Illstory of Education in Ameriean Culture (1.1133). Pts. 1. 11: Culi.Kerley, Public Education in the United States (1934 ed.), cc. II-XII. School piactiees envrent at the time of the adoption of the Fourteenth Amendment are described In Butts andCremin. NIIPM, at 269-275: Cubberley. supra, at 288-339. 408-431: Knight, Public Edit-(-alio!' in the South (1922). cc. VIII. Ix. See also II. Ex. Doe, No 313. 41st Cong. 2d Sess.118711. Although the demand for free public schools followed substantially the samepattern in both the North and the South. the development in the South did not begin togain momentum until about 1350. some twenty -reams after that in the North. The reasonsfor the somewhat slower development in the South (e.g., the rural character of the Southand the different regional attitudes toward state assistance) are well ixplained In Caliber.ley. +alma, at 408-423. iii the country as a whole. but particularly In the South, the Warirtually stopped all progress in pulde education. Id., at 427 -12S. The low status of Negroeducation in all sections of the country. both before and Immediately after the War. isdescribed in Beale. A IiIstory of Freedom of Teaching in American Schools (1941), 112- -1 :12. 173-191. Compulsory school attendance laws were not generally adopted until afterthe ratification of the Foorteenth Amendment. and It was not until 191S that such laws%%ere in force in all the states. CobberIcy, supra, at 363-565.

5 Slaughter-House Ca.ses, 16 Wall. 311. 67-72 (1873) : Strauder v. West Virgini, 100 F.S303.307-308 (1880)"It ordains that no State shall deprive any person of life. liberty, or property. without

due process °flaw. or deny to any person within Its jurisdiction the equal protection of thelaws. What is this but declaring that the law In the States shall be the same for the blackas for the white; that all persons, whether colored or white. shall stand equal before thelaws of the States. and. in regard to the colored race. for whose protection the amendmentwas primarily designed, that no discrimination shall be made against them by law becauseof their color? The words of the amendment. It is true, are prohibitory. but they contain anecessary implleation of a positive immunity. or right, most valuable to the colored race--the tight to exemption from unfriendly legislation against them distinctively as coloredexemption from legal discriminations, implying inferiority in civil society. lessening thesecurity of their enjoyment of the rights which others enjoy. and dis riminations which aresteps towards reducing them to the condition of a subject race."See also Virginia V. River, 100 J.S. 313, 31S (1380) : Ea parts Virginia, 100 U.S. 339.341-345 (1880).

4The doctrine apparently originated in Roberts v, City of Boston, 59 Mass. 19$. 206(1830), upholding school segregation against attack as being violative of a state constitu-tional guarantee of equality. Si gregation in Boston piddle schools was eliminated In 1833.,.3Ia.% Acts 1833. c. 256. Bo. elsewhere in the North segregation in public education haspersisted in some eommnnitieg mail recent years. It is apparent that such segregation haslong been a nationwide problem. not merely one of sectIonni concern.SeP ail o Berea College v. Kentucky, 211 U.S. 45 (1908).

5

doctrine itself was not challenged.' In more recent cases, all on thegraduate school level, inequality was found in that specific benefitsenjoyed by white students were denied to Negro students of the sameeducational qualifications..Wkwuri ear, rel.,Gaines v. Canada, 305 V. S337; Siime/ v. Oklahoma, 332 U. S. 631; Sweatt v. Painter, 339 U.S.629; Me Laurin v. Oklahoma State Regents, 339 U. S. 637. In none ofthese cases was it necessary to re-examine the doctrine to grant reliefto the Negm plaintiff. And in ,Svireatt v. Painter, supra, the Courtexpressly reserved decision on the question whether Plea,!/ y. Fergu-son should be held inapplicable to public education.

In the instant, cases, that. question is directly presented. Here, unlikeSweatt v. Painter, there are findings below that the Negro and whiteschools involved have been equalized, or are being equalized, withrespect to buildings, curricula, qualifications and salaries of teachers,and other -tangible- factors.9 Our decision, therefore, cannot turn onmerely a comparison of these, tangible factors in the Negro and whiteschools involved in each of the cases. We must look instead to the effectof segregation itself 011 public education.

In approaching this problem, we cannot turn the clock back to 1868when the Amendment was adopted, or even to 1896 when MeAvy v.Pergu.son was written. We must consider public education in the lightof its full development and its present; place in American life through-out the Nation. Only in this way can it be determined if segregation inpublic schools deprives these plaintiffs of the equal protection of thelaws.

Today, education is perhaps the most important function of stateand local governments. Compulsory school attendance laws and thegreat. expenditures for education both demonstrate our recognition ofthe importance of education to our democratic society. It is required inthe performance of our most, basic public responsibilities. even servicein the armed force:. It is the very foundation of good citizenship. To-day it is a principal instrument in awakening the child to culturalvalues, in preparing him for later professional training, and in helpinghim to adjust normally to his environment. In these days. it is doubt-ful that any child may reasonably be expected to succeed in life if heis denied the opportunity of an education. Such an opportunity. wherethe state has undertaken to provide it, is a right which must be madeavailable to all on equal terms.

We come then to the question presented : Does segregation of chil-dren in public, schools solely on the basis of race even though the phys-ical facilities and other "tangible factors may ne equal, deprive thechildren of the minority group of equal educational opportunities?We believe that it does.

s In the Cumming case, Negro taxpayers sought au injunction requiring the defendantboo! boa rd to gliscontinue the operation of a high school for white children until the

board re.unted operation of n high school for Negro children. Si.nilarly. In the Gong bumeae, the plaintiff. a child of Chinese descent. contended only that state authorities badmisapplied the doctline by classifying him with Negro children and requiring him to attenda Negro school,

In the Iintag case. the court below found subAantial equality as to all such factors9S 1% Supp. 797. 79R. In the South Carolina ease, the court below found that the defend-ants Itere proceeding "promptly and in good faith to comply with the court's decree." 102F. Sapp, 920.921. In the Virginia cage, the court below noted that the equalization programwag already "afoot and pregreging'' (192 Supp. 827. 3411: since then. we have beenadvpwd. In the Virginia Attorney Genernl's brief on reargument. that the program hasnow been completed. In the Del mare cage, the court below similarly noted that the statesequalization program was well under way. 91 A. 2d Mt 149.

In Sweatt v. Athrter, svra. in finding that a screffated law schoolfor Negroes could not provide Om equal education:71 opportunities,t his Conrt relied in large part on those qualities which are incapableof objective 111(.851111,11Iva but which make, for greatness in :1 lawschool." In 3/4,,,,,ph, OkillhOMO Afitte Regents. supra. the Court,in requiring that a Negro admitted to :1 white graduate school betreated lilw all other students. again resorted to intangible consider:1-

"... his ability to study, to engage in discussions and exchangeviews with other students, and. ill general, to learn his profession.Such considerations apply with added force to children in grade andhigh schools. To sepanite them from others of similar age amlcations solely because of their nice generates a feeling of inferiority asto their status in the 0illintillity that. MN' affect their.hearts ninl mindsin a %vay unlikely ever to be undone. Tile effect of thk separation ontheir educational opportunities was well stated by a findheY in theKansas case by :1 court erthele54' felt compelled to ruleagainst the Negro plaintiffs:

"Segregation of white and co:ore(' children in public sehoolshas a -detrimental effect upon tau' colored children. The impactis greater when it has the sanetion of the law : for the policy ofseparating the races is usually interpreted as denoting the in-feriority of the Negro group. A sense of inferiority affects themotivation of a child to learn. Segregation with the sanction oflaw, therefore. has a tendency to fr'-mar(11 the educational andmental development of Nerni children and t deprive them ofsome of the benefits they would receive in a racial! 1. integratedschool system." 10

Whatever may have been the extent of psychological knowledge at thetime of Messy v. Ferguson. this finding is amply supported by mod-ern authority." .any language in Messy v. Ferguson contrary to thisfinding is rejected.

We conclude that in the field of public education the tlectrim. of"separate but equal" has no place. Separate educational facilitiesare inherently unequal. Therefore, we hold that the plaintiffs andothers similarly situated for whom the actions have been brought are.by reason of the segregation complained of. deprived of the equalprotection of the laws guaranteed by the Fourteenth Amendment.This disposition makes unnecessary any discussion whether such segre-gation also violates the Due Process Clause of the FourteenthAmendment."

Because these are class actions. because of the wide applicability ofthis decision. and because of the great variety of local condition,. theformulation of decrees in these cases presents problems of considerable

l" A similar finding was made in the Del ware ease: I conclude from the testimony thathp ear Delaware society. State:I:posed segregation in education itself results In the NegroehiPlren. as it class. receiving educational onportunitle:4 which are substantially inferiorto those available to white children otherwise similarity situated. 87 .A.241 862. SM.o II. Clark. Effect of Prejudice and Discriminalion on Personality Development(Nlideentury White House Conference on Children and Youth. 1950) : Witmer andRoth:sky. Personality in the linking (1952). c. De:Ascher and Chein. The Psycho-logical 'Effects of Enforced Segregation : A Survey of Social Science Opinion. 26 J.Psychol. 259 (1948) : Chein. What are the Psychological Effects of Segregation LinderConditions o: Equal Facilities?. 3 Int. J. Opinion and Attitude Res. 229 (19411) : Brameld.Edneational Costs, in Discrimination and National Welfare (liaciver. ed.. 1949). 44-48:Frazier. The Negro in the United States (1949). 674-651. And see generally perdu'. AnAmerican Dilemma (1044).12sei Bolling v. Sharpe, post, p. 497. concerning the Due Process Clatie of the FifthAmendment.

complexity. On reargument. the consideration of appropriate reliefwas necessarily subordinated to the primary questionthe cons( un-t ionality of segregation in public education. We have now Rh noancedthat such segregation is a denial of the equal protecit on of the laws.In order that we may hat e the full assistance of t he pail 4.;; in formu-lating decrees. the cases will Ile restored to the docket and the partiesare requested to present further argument oil Queslitais 4 .old :0

pm+ Ansly propounded by the Court for the reargument this Term."'he Attorney General of the United States is again invited to par-

ticipate. The Attorneys Geir,ra I of the states requiring or permittingsegregation in public ethwation will also be permitted to appear asantic/ curia(, upon request to do so by September 15. 1954. and sub-mission Of briefs by October 1. 1954."

It is so orde)Cd.

""4. Assmning It is decided that segregation In public schools violates the FourteenthAMPlichtteut

"10) would n decree necessnrily follow providing that. within the limits set by normalgeographic school districting. Negro children should forthwith be admitted to schoolsof their choice. or

tb) may this Court. In the exercise of Its equity !),.^-ers. permit au effective gradualadjustment to lo rought about from existing segregated systems to n system nut basedon color distinctions?

"5. On the assmnpt Ion on which questions 4(a) and (b) are based. and assumingfurther that this Court will exercise Its equity powers to the end described in question4Ib

-to) should this Court formulate detailed decrees In these eases:(b) if so, what specific issues should the decrees reach :"(e) should this Court appoint a speelsil :mister to hear evidence with a view to reeom.

Mending specific terms for such decrees :-(f) Should this Court remand to the courts of first instance with directions to

fruits. decrees in these cases. and If so what general directions should the decrees of thisCourt include and what procedures should the courts of first instance follow in arriving:it the specifie terms of more detailed decrees?'

I, See Rule 4'4 Revised Rules of this Court (effective July 1. 1954).

O "d %,Jup'uonvonPa* to p.mou ualov t

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:MN V 11t, ..1 "iv 1:4 17'1011

9

exclusive, The -.mind protection of the laws" is a more explicit safe-guad of prohibited unfairness than "due process of law." and. there-ore. we do not imply that the two are always interchangeable. phrases.

But. as this Court has recognized, discrimination may be so unjustifi-able as to be violative of due process?

Classifications hosed -iolely upon race must be scrutinized with par-ticular care, since tin are contrary to our traditions and hence con-stitutionally suspect." As long ago as 1896, this Court declared theprinciple -that the Constitution of the United States. in its presentform. forbi&i. so far as civil and political rights are concerned. dis-crimination by the General Government, or by the States, againstany citizen b2ca.:-e of his race." 4 And in Buchanan, v. War ley, 24500. the Court held that a statute which limited the right of aproperty owner to convey his property to a person of another race was,as an unreasonable discrimination. a denial of due process of law.

Although the Court. has not assumed to define "liberty" with anygreat precision, that term is not confined to mere freedom from bodilyrestraint. Liberty under law extends to the full range of conduct whichthe individual is flee to pursue, and it cannot be restricted except for aproper governmental objective. Segregation in public education is notreasomibiy related to any proper governmental objective. and thus itimposes on Negro children of the District of Columbia a burdenthat constitutes an arbitrary deprivation of their liberty in violationof the Due Process Clause.

In vi, w of our decision that the Constitution prohibits the statesfrom maintainh.g racially segregated public schools. it. would be un-thinkable that the same Constitution would impose a lesser duty on theFederal Government.5 We hold that racial segregation in tile publicschools of the District of Columbia is a denial of the due pro--ess of lawguaranteed by the Fifth Amendment to the Constitution.

For the reasons set out in Brown V. Board of Edecotioh. this casewill be restored to the docket for reargument on Question' 4 and 5previously propounded 1w the Court 345 U.S. S72.

It is so ordered.3 Detroit Bank v. United Mateo. 317 U.S. 329: Currin v. Wuttacc, 306 U.S. 1, 13 -14:Steward Machine Co. v. Do ois, 301 U.S. 548. 535.3 Korcmatou v. United States, 323 U.S. 214. 211,; Itirabayashi r. United Stahl, 320 U.S.81. 100.g Gilwn: v. 16:.! V.S. 365. 591. Cf. Sterte v. 1.011i4Vine .f .Vaxhville R. Co.. ::23U.S. 192. 193-199.Cf. /turd v. ;lodge, 334 U.S. 2.

OCTOBER TERM, 1954

Syllabus. ::49

BROWN Kl* AL V. 130a nu or En reaTioxor TOPEKA ET AI

NO. I APPEAL, FRa THE UNITED STATE'S norriacT cocirr Fon TILE DISTRICPOF KANSAS!'

Reargued on the question of relief April 11-14. 1955.Opinion andjudgments announred May 31, 19.3.

1. Racial discrimination in public education is unconstitutional. 347U.S. 483. 497, and provisions of federal. state or local lawrequiring or permitting such disvrimination must yield to thisprinciple. P.298.

2. The jodgments below (except that in the Delaware case) are re-versed and the cases are remanded to the District Courts to takesuch proceedings a nd enter such orders and decrees consistent withthis opinion as are necessary and proper to admit the parties tothese cases to public schools on a racially nondiscriminatory basiswith all deliberate speed. P. 301.

(a) School authorities have the primary responsibility forelucidating-, assessing and solving- the varied local school problemswhich may require solution in fully implementing the governing

constitutional principles. P.299_(b) Courts will have to consider whether the action of school

authorities constitutes good faith implementation of the govern-hug constitutional principles. P. 299.

(e) Because of their proximity to local conditions and the pos-sible need for further hearing-s, the courts which originally heardthese eases can best perform this judicial appraisal. P. 299.

(d) In fashioning and effectuating the decrees, the conrts willbe guided by equitable principlescharacterized by a practicalflexibility in shaping remedies and a facility for adjusting andreconciling public and private needs. P.:300.

(e) At stake is the personal interest of the plaintiffs in admissionto public schools as soon as practicable on a nondiscriminatory basis.I'. :;00.

(f) Courts of equity may properly take into account the publicinterest in the elimination in a systematic and effective manner of avariety of obstacles in making the transition to school systems operated

Together with No. 2. Briggs ct at. v. Elliott et at.. on anneal from the United State-,Diqtrict Court for the Eastern District of South Carolina : No. 3. Darts et al. v. CountyShool Board o Prince Edward County, Virginia, et al.. on anneal front the rnitetiStates District Court for the Eastern District of Virginia: No. 4. /tolling rt at. V. Pharpert at.. on certiorari to the United States Court of Appeals for the District of Columbia Cir-cuit : and No. rt. Ccbhart et at. V. Belton et at., on certiorari to the Supreme Court of Dela-ware.

(10)

11

in accordance with the constitutional principles enunciated in 347V.S. 4S3. 497: but. the vitality of these constitutional principles cannotbe allowed to yield simply because of disagreement with them. P. 300.

(!,) While giving weight to these public and private considera-tions. the courts will require that the defendants make a promptand reasonable start toward full compliance with the ruling of thisCourt. I'. 300.

(h) Once such a start has been made, the courts may find thatadditional time-is necessary to carry out. the ruling- in an effectivemanner. P. 300.

(i) The burden rests on the defendants to establish that additionaltime is necessary in the public interest and is consistent. with goodfaith compliance at the earliest practicable date. P. 300.

(j) The courts May consider problems related to administration.arisin!, from the physical conditton of the school plant., the schooltransportation system, personnel. revision of school districts andattendance areas into compact units to achieve a system of deter-minin!* admission to the public schools on a nonracial basis, and re-vision of local laws and regulations which may be necessary in solvingthe foregoing problems. Pp. 300-nn1

(k) The courts will also e, ..:-mer the adequacy of any plans thedefendants may propose to meet these problems and to effectuate atransition to a racially nondiscriminatory school system. P. 301.

(I) During- the period of transition, the courts will retain juris-diction of these cases. P. 301.

The indurnimt ill the Delaware case. ()Merin!, the immediate admis-sion of the plaintiffs to schools previously attended only by whitechildren. is affirmed on the basis of the principles stated by this

oort in its (minion. 347 V.S. -113: but the case is remanded tothe Supreme Court of Delaware for such further proctpdings asthat Court may deem necessary in the light of this opinion. P.301,

9s F. Snip. 797. 103 F. Sapp. P-20. 103 F. Supp. 337 and judgmentin No. 4. revenzed and rmande,I.

91 .1.2d 137. afli rmed and remanded.

Counsel few Parties. 319 u.S.

Robert L. Carter argued the cause for appellants in No. 1. Spotts-wood W. Robinson. ///, argued the causes for appellants in Nos. 2 and3.. George E. C. Hayes and James if. Nabrit,Jr. argued the cause forpetitioners in No. 4. Louis L. Redding argued the cause for respond-ents in No. 5. Thurgood Marshall argued the causes for appellants inNos. 1, 2 and 3, petitioners in No. and respondents in No.5.

. On the briefs were Harold Bold ware, Robert I Carter, Jack Green-berg. Oliver W. Hill. Thurgood Marshall. Louis L. Redding, Spotts-wood IV. Robinson. III. Charles S. Scott, William T. Coleman. Jr..Charles T. Duncan. George E. C. Hayes, Loren Miller, William R.Ming. Jr.. Constance Raker Motley, James Nabrit, Jr., Louis II.Pollak and Frank D. Reeves for appellants in Nos. 1. 2 and 3 and.respondents in No. 6: and George E. C. Mayes; Junes 1f. Nabrit,Jr..George 31. Johnson. Charles W. Quirk, Herbert 0. Reid, ThurgoodMarshall and Robert L. Carter for petitioners in No. 4.

1")

Harold R. Fatzer, Attorney General of Kansas, argued the causefor appellees in No. 1. With him on the brief was Paul E. Wilson.Assistant Attorney General. Peter F. Caldwell filed a brief for theBoard of Education of Topeka, Kansas, appellee.

S. E. Rogers and Robert Mee Figg. Jr. argued the cause and fileda brief for appellees in No. 2.

J. Lindsay Almond, Jr., Attorney General of Virginia, and .4 rehi-b«ld G: Rol argued the cause for appellees in No. :3. With themon the brief were Henry 7'. Wickham, Special Assistant to the Attor-ney General, T. Justin Moore. John 1T'. Riely and T. Justin. Moore,Jr.

Milton. D. K0011411. argued the cause for respondents in No. 4. Withhim on the brief were Vernon E. 1Vest, Chester II. Gray and LymanI. L- instead.

94 Counsel for Parties.

Jose ph Donald Crawl), Attorney General of Delaware. argued thecause for petitioners in No. 5. On the brief were II. Albert Young. then.Attorney General. Clarence ir Taylor. Deputy Attorney General. and

Pal it'll. I). Christie, Special Deputy to the Attorney General.In response to the Courts invitation. 347 U.S. 483. 495-4K .S'ol/Wtor

General Soheloif participated in the oral argument for UnitedStates. With him on the brief were A ttorney General Brow»ell. A.s.s;st-ant Attorney General Rankin. Phil ;p El man, Ralph S. Spr;tzer and_ thin Ro.s-nthtd.

By invitation of the Court. 347 U.S. 48:3, 406. the foilm inf State(Aim ls presented their views orally as amici curiae: Thomas .1. Gent ry.Attorney General of Arkansas, with whom on the brief were JomesSloan. Assistant. Attorney General, and R;ehard B. McCulloch. Spe-cial Assistant Attorney Geenral. Welutry/ 1V. Ervi», Attorney Generalof Florida, and Ralph E. Othon. Assistant Attorney General, both ofwhom were also on a brief. C. Foy! inand Sybert, Attorney General ofMaryland. with whom on the brief were Edward I). E. Rollins. thenAttorney General. W. Giles Parker. Assistant Attorney General, andJames II. Norris, Jr., Special Assistant. Attorney General. I. BererlyLab. Assistant Attorney General of North Carolina. with whom onthe brief were Harry McMullan. Attorney General, and 7'. Wade Bru-ton. Ralph Moody and Claude L. Lore, Assistant Attorneys General..1/oe Q. Williton.von, Attorney General of Oklahoma, who also filed abrief. Joh». Ben Shepperd, Attorney General of Texas, and BarnellWahlrep. Assistant Attorney General. with whom on the brief wereBilly E. Lee..1. A. .Ami.e. Jr.. L. I'. Lollar, 7. Fred Jones,John Daren-port.JohnReeres and 117 Da e;s.

Phineas Indritz filed a brief for the American Veterans Committee,Ille., as amirus curiae.

Opinion of the Court. 2.19 17.S.

Mu. Ctio-1 JusTrt IIrmatt N delivered the opinion of the Court.These cases were decided on May 17, 1954. The opinions of that date.'

declaring the fundamental principle that racial discrimination in pub-lic education is unconstitutional, are incorporated herein by reference.

347 U.S. 4S3 : 347 U.S. 97.

13

All provisions of federal, state. or local hiw requiring or permittingsuch discrimination must yield to this principle. There remains forconsideration the manner in which relief is to be accorded.

Because these cases arose under different local conditions and theirdisposition will involve a variety of local problems, we requestedfurther argument on the question of relief.' In view of the nationwideimportance of the decision, we invited the Attorney General of theUnited States and the Attorneys General of all states requiring: or per-mitting racial discrimination in public education to present their viewson that question. The parties. the United States. and the States ofFlorida. North Carolina, Arkansas, Oklahoma, Maryland, and TexasTiled briefs and participated in the oral argument.

These presentations wore informative and helpful to the Court inits consideration of the complexities arising from the transition to asystem of public education freed of racial discrimination. The pres-entations also demonstrated that substantial steps to eliminate racialdiscrimination in public schools have already been taken, not only insonic of the communities in which these cases arose. but in someof the states appearing as amiel curiae, and in other states as well.Substantial progress has been made in the District of Columbia andin the communities in Kansas and Delaware involved in this litigation.The defendants in the cases coming- to its from South Carolina andVirginia are awaiting the decision of this Court concerning relief.

Full implementation of these constitutional principles may requiresolution of varied local school problems. School authorities have theprimary responsibility for elucidating, assessing, and solving theseproblems: courts will have to consider whether the action of schoolauthorities constitutes good faith implementation of the governingconstitutional principles. Because of their proximity to local condi-tions and the possible need for further hearings, the courts which orig-inally heard these cases can best perform this judicial appraisal. Ac-cordingly. Nye believe it appropriate to remand the cases to thosecourts.3

In fashioning and effectuating the decrees, the courts will be guidedby equitable principles. Traditionally, equity has been characterizedby a practical flexibility in shaping its remedies' and by a facility foradjusting and reconciling public and pri.ate needs.' These cases call

= Further argument was requested on the following questions. 347 U.S. 483, 493-496,u. 13. previously propounded by the Court :

4. Assuming it is decided that segregation in public schools violate:: the FourteenthAmendment

"(a) would a decree necessarily follow providing that. within the limits set by normalgeographic school districting, Negro children should forthwith he admitted to schools oftheir choice. or

'(b) may this Court. in the exercise of its equity powers. permit an effective gradualadjustment to be brought about from existing segregated systems to a system not basedon rolor distinet ions?.

"3. On the assumption on %illicit que,tions 4(a) and (b) are based. and a...timing furtherthat this Court will Toreise its equity powers to the end described in question 4(b),"(a) ...bould this Court formulate detailed decrees in these cases;"(bl if so, what specific ',tics should the decrees reach ;"( el should this Court appoint a special master to hear evidence pith a view iti reemmmending specific terms for such decrees;-(1) should this Court remand to the courts of first instance With (11rPetiMIS to framedecrees in these cases and if so what general direction:. should the decree, of this Courtinclude and what procedures S11011141 the courts of first instance follou in arriving at thesiwellie terms of more detailed deereesS.3 Th4. cases coming to us from Kansas, South Carolina. and N'irginia %%Pre originallybard by threejudge District Courts convened under 25 V.S.C. §§ 2251 and 22s1. -Them.191". will dri."11iligi he remanded to those three judge einnig Si' Blom. Elliott. 342V S. 350.4 See Alexander v. Hillman, 296 U.S. 222. 239.

See Hecht Co. v. Nogales, 321. U.S. 321 329-330.

14

for the exercise of these traditional attributes of Nulty power. At stakeis the personal interest of the plaintiffs in admission to public schoolsas soon as practicable on a nondiscriminatory basis. To effectuate thisinterest may call for elimination ofa variety of obstacles in making thetransition to school systems operated in accordance with the constitu-tional principles set forth in our May 17. 1954. decision. Courts ofequity may properl; take into account ithe public interest in the elimi-nation of such obstacles in a systematic and effective manner. But itshould go without saving that the vitality of these constitutionalprinciples cannot be allowed to yield simply because of disagreementwith them.

While giving weight to these public and private considerations, thecourts will require that the defendants make a prompt and reasonablestart toward full compliance with our May 17, 19542 ruling. Once sucha start has been made, the courts may find that additional time is neces-sary to carry out the ruling in an effective manner. The burden restsupon the defendants 'to establish that such time is necessary in thepublic interest and is consistent with good faith compliance at theearliest practicable date. To that end, the courts may consider problemsrelated to administration. arising from the physical condition ofthe school plant, the school transportation system, personnel, revisionof school districts 'and attendance areas into compact units to achieve asystem of determining admission to the public schools on a nonracialbasis. and revision of local laws and regulations which may be neces-sa,:c in solving the foregoing problems. They will also consider theadequacy of any plans the defendants may propose to meet theseproblems and to effectuate a transition fo a racially-nondiscriminatoryschool system. During this period of transition". the courts will retainjurisdiction of these cases.

The judgments below, except that in the Delaware case, are accord-ingly reversed and the cases are remanded to the District Courts to takesuch proceedings and enter such orders and decrees consistent with thisopinion as are necessary and proper to admit to public schools on itracially nondiscriminatory basis with all deliberate speed the partiesto these cases. The judgment in the Delaware easeordering the im-mediate admission of the plaintiffs to schools previously attended onlyby white childrenis affirmed on the basis of the principles stated inour May 17, 1954, opinion. but the ease is remanded to the SupremeCourt of Delaware for such further proceedings as that Court maydeem necessary in light of this opinion.

/t is co ordered.

In the United States Court of Appeals for the Fifth Circuit

No. 23345

UNITED STATFS OF AMERICA AND LINDA STOUT, in HER FATHER ANDNEXT FRIEND, BLEVIN STOUT. APPELLANTS.

v.

JEFFERSON COUNTY BOARD OF EDUCATION, ET AL. APPELLEES.

No. 23331

UNITED STATES OF AMERICA, APPELLANT.

v.

THE BOARD OF EDUCATION OF THE CITY OF FAIRFIELD, ET AL. APPELLEES.

No. 23335

UNITED STATES OF AMERICA, APPELLANT.

v.

THE BOARD OF EDUCATION OF THE CITY OF BESSEMER, ET AL., APPELLEES.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THENORTHERN DISTRICT OF ALABAMA

No. 23274

UNITED STATES OF AMERICA, APPELLANT,

v.

CADDO PARISH SCHOOL BOARD, ET AL., APPELLEES.

(15)

16

No. 23365

UNITED STATES or A3mnicA. APPELLANT,

r.

TIM BOSSIER PARISII SCHOOL BOARD, ET AL.. APPELLEES.

No. 23173

MAnummr M. JolissoN ET AL, APPELLANTS.

JACKSON PARISH SCII0OL BOARD i' AL, APPELLEES.

No. 03192

YVORNIA DECAROL BANKS ET Al... PPELL AN TS,

("LA mons!: PAiusit Sciroor, BoAnn FA: AL.; ArrELLEEs.

APPEALS FRou THE UNITED STATES DISTRICT COURT FOR THEWESTIMN DISTRIC2' OF LOUISIANA

(December 29,1966.)

Before WISDOM and THOBNBERRY, Circuit Judges,and COX,* District Judge.

WISDOM, Circuit Judge: Once again the Court is called upon toreview school desegregation plans to determine whether the plans meetconstitutional standards. The distinctive feature of these cases, con-solidated on appeal, is that they require us to reexamine school deeg-regation standards in the light of the Civil Rights Act of 1964 and theGuidelines of the United States Office of Education, Department ofI tea lth, Education, and Welfare (HEW).

William Unroll! Cox, U. S. District Judge for the Southern District of Mississippi,sitting by designation.

17

When the United States Supreme Court in 1954 decided Brown v.Board of Education' the members of the High School Class of 1966had not entered the first grade. Brown I held that separate schools forNegro children were "inherently unequal ".2 Negro childreil. said theCourt, have the "personal and present' right to equal educattunal op-portunities with white children in a racially nondiscriminatory pablicschool system. For all but a handful of Negro members of the HighSchool (Noss of '66 this right has been "of such stun' as dreams are madeon".3"The Brown case is misread and misapplied when it is construedsimply to confer upon Negro pupils the right to be considered fol.admission to a white school."' The United States Constitution. as con-strued in Brown, requires public school systems to integrate students,faculties, facilities, and activities.' If Brown I left any doubt as to the

1 Brown v. Board of !Attention. 1954. 347 U.S. 453. 71 S.Ct. 006. OR I,. Ed. 579 (lliiiiriII. See Brown v. Board of Edueation. 1955, :149 U.S. 294. 75 S.Ct, 29:1 99 1. mi. las::(Brawn It).2:147 U.S. nt 495.

Shakespeare, The Teen lust IV. The ease, consolidated for appeal involve Alabama andLouisiana public schools. In Alabama, as of December 1901, there were 1250 Negro pupils.out of a statewide total of 295.845, actually enrolled In schools with 559.123 white stn.dents. 0 43% of the eligible Negro enrollment. In Louisiana there were 2157 Negro eltildren.out of n total of 318,051. enrolled in school with 453,941 white children, 0.09% of thetotal eligible. Southern Education Reporting Service, Statistical Summary of Segregation.Desegregation in the Southern and Border Area from 1954 to the present, 15th Bev. p. 2.Dec, 1965. See Appendix It, Rate of Change and Status of I)esegregation. Itt emelt of theseven cases before this Court, no start was made toward desegregation of the schools ult.ill 1965. eleven years niter Boten. In all these cases, the start was a consequence of acourt order obtained only after vigorous opposition by school officials.Braxton v. Bonrd of Public Instruction of Dtival Comity. S.1),Pla. 1962, 7 Race Rel. L.Item 075 ford, 5 Cir. 1901, 3:20 F.2d 010.4.eri. den'd 377 .S. 924 119641. Stalinor Humphrey41041 this case In exit:Aril:1g Section 001 of The Civil Rights Act of 1964. See Seetion IVI) of this opinion.5 The mystique that has dm eloped over the supposed digeretwe between "desegregation"and "Integration" originated in Briggs v. Elliott. 1955. 132 b'. Sum). 7-0: -TheConsatt tit ion ... does not require integration. It merely forbids segregation". 132 P. Stipp. at777. '1'111,1 dictum is a prodnet of the narrow view that Fourteenth Amendment rights areonly individual rights ; that therefore Negro school children individually must exhaust theiradministrative remedies and will not be allowed to bring class action suits to desegregate0 school st ,tent. See Section IIIA of this opinion.The Supreme Court did not use their "desegregation" or "Integration" In Brown. But theCom t did quote with approval a statement of the district court In which "integrated" wasused as we use It here. For ten rears atter Blown the Court earefully refrained from (wing"Integration "integrated'. Then In 1961 in Griffin v. County School Board of PrinceEduard County. :175 U.S. 391. 54 S.Ct. 400, 11 L.E41.241 09, the Court 214)1441 that "theitoard of Supervisors decided not to levy taxes or appropriate funds for intolottod pnbllesvIlool,. under a desegregation order. 'There is not one Supreme Court decisionwhich eaul be fairly construed to slum that tin' Court distinguished "degregation" from"integration", in terms or by even the most gossamer implication.Counsel for the Alabama defendants assert that "desegregation" and "Integration" areterms of 1rt. They struggle vallanti3 to define these words :Its "desegt egat ion" Ito mean the duty imposed by Beaten upon sehools which previouslycompelled segregation to take affirmative steps to eliminate such commits/ow scpicaathin so as to allow' the admission of students to schools 4111 a nonraelal admission bask.Be "Integration ' we mean the actual ilicing of or attendance by Negro students insetands eitli whites.

They call do so milt by narrowing the deanitions to the point of inadeonaey. ManifestlY,the duty to desegregate schools: extends beyond the mere "admission" of Negro ,students onIt non-racial hash. A.s for "Ittlegratiott". manifestly a desegregation plan lutist include somearrow:einem for the a ttendanee of Negroes in formerly white sehookIn this opinion lee Ilse the words "integration" and "desegregation" Interchangeably.That is the way they are used in the vernacniar, That is the way they are defined InWebster's '1111rd New Intereational Dictionary : " 'integrate' to 'desegregate"'. The CivilRights Commission follows this usage : for eample. Office of Education . . stand-1141s . . . . el:llre that free choice plans are adequate to disestablish dual.racially segregated sehool systems , .. to adder( substantial integration In such systems.'.S, Comm. Survey of School Desegregation 1905-011. I), hi.The Eighth Cirenit used "integration" interchangeably with "desegregation" lu Smith v.Board of Education of Morrilton. S Cir, 1900. 305 P,2d 770. So did the Third Cirenit IuEvans v. Ennis, It Cir. 1960, 251 P.2t1 385, See also Brown v. County School Board ofFrederick Comity, Va.. W.D.Va. 1965, 245 F.Supp. 540. The courts in Dowell v. SchoolBoard of Oklahoma City Public Schools. W.D.Okla, 1905. 244 P. Sum). 971 tlid Dote v.Parham. S Cir. 1900, 2,z2. 2t1 250 (nod the Civil Right,: Commission), speak of a 5410411board's duty tc "discs/at/fish segregation. Tile term aecurotely "implies that existing racialimbalanee is a consequence of past segregation policies, and, because of this, school boardshat Can apir»1 dire dufp to remedy racial imbalance ", Note. Discrimination In the fitting

Is

affirmative duty of states to furnish a fully integrated education toNegroes as a class, Brown // resolved that doubt. A state with a dualativndance system, one for whites Mid one for Neg:oes. must "effect n-ate a transition to a [single} racially nondiserinimatorysysteni.**Gl'hetwo blown decisions mablished equalization of educational opportu-nities as ti high priority goal for all of dn. states and compelled seven-teen states. which by law had segregated public schools, to take affirma-tive action to reorganize their schools into a unitary, nonracial system.

The only Nhool desegregation, plan that meets eonstitatimad Ntaad-anis is one that works. By helping public schools to meet that test. byassisting the courts in their independent evaluation of school desegrega-tion plans, and by accelerating the progress lint simplifying the pro-ess of desegregation the HEW Guidelines offer new hope to Negroschool children long denied their constitutional rights. A national ef-fort, bringing together Congress, the exevut ive, and the judiciary maybe able to make meaningful the right of Negro children to equal edu-cational opportunities. The emits acting alone have failed.

We hold, again, in determining whether school desegregation plansmeet the standards of Brown and other (decisions of the SupremeCourt.' that courts in this circa should give "great weight** to HEWGuidelines.' Such deference is consistent with the exercise of tradi-tional judicial powers and functions. HEW Guidelines are based ondecisions of this and other courts, and formulated to stay within thescope of the Civil Rights Act of 1964, are prepared in detail by expertsin education and school administration. and are intended by Congressand the executive to be part of a coordinated national program. TheGuidelines present the best system available for uniform application,and the best aid to the courts in evaluating the validity of a schooldesegregation plan and the progress made under that plan.

HEW regulations provide that schools applying for financial assist-ance must comply with certain requirements. However, the require-ments for elementary or secondary schools "shall be deemed to besatisfied if such sehool or school system is subject to a final orderof a court of the United States for the desegregation of such school

and Assignment of echers in Public Sellout Systems. 64 Mich. I,. Rev. 092. 69s n.44119661. ( 1:1111/1111Shi 111h1:41.)

We use the terns "Integration" and "desegregation" of formerly segregated publicschools to mean the conversion of a de jure segregated dual system to a unitary. nonracial(nondiscriminatory) systemlock. stock. and barrel: students. faculty. stall'programs. and ativItks. The proper governmental objective of the conveision is to oilereducational opportunities on equal terms to all.

As we see it. the law Impose*: an absolute duty to desegregate. that Is. disestablish segregation. And an absolute duty to integrate. In the sense that a disproportionate convent ration ofNegroes in certain Schools cannot he ignored ; racial mixing of students is a high priorityedneational goal. The law does not require a ma \initial of racial mixing or striking a modalbah: net accurately reflecting the racial composition of the unanimity or the gel 1 popula-tion. It does not require that each and evert child shall attend a racially balanced school.This. we take it. Is the sense in %%Well the Civil Rights CO1111116,4011 used the

alitialintegraAs long as school boards understand the objective of desegregation and the necessity for

complete disestablishment of segregation by convert hug the dual system to a Door:alaiunitary cyst: the nomenclature is unimportant. The criterion for determining the validityof a provision in a desegregation plan Is whether it is reasonably related to the AjectIve.We emphasize. therefore. the governmental objective nod the specifies of the conversionProe.:s. rather than the Imagery evoked by the pejorative "Integration". DeeisiomakingIII this important area of the law cannot be made to tarn upon a quibble devised over tenyears ago by a court that tnisread Broom. misapplied the class action doetrine In the sehooldeegregation cases. and did not foresee the development of the law of equal 11,portml!ties.

Brown c. Board of Education, 1955, 349 U.S. 294. 301.Especially Cooper v. Aaron. 1958. 358 U.S. 1. 78 S.Ct. 1399, 3 L.Ed.2,1 3: Bradley v.

School Board of the City of Richmond. 1905. 382 U.S. 103. 80 S.Ct. 224. 15 1..E41.2(1 157:Rogers v. Paul. 1965. 3S2 U.S. 198, 80 S.Ct. 358. 15 I...B(1.2(1265.

s Singleton v. Jackson 3Innicipal Seperate School District. 5 Cir. 1905. 348 P.241 729(: hiylelott I).

19

or school system , . " This regulation causes our decisions to have atwo-fold impact on school desegregation. Our decisions determine notonly (1) the standards schools must comply with under Brown butalso (2) the standards these schools must comply with to qualify forfederal financial assistance. Schools ant oniatically qualify for federalaid whenever a final court order desegregating the school has beenentered in the litigation and the school authorities agree to complywit li.the order. lieeause of the second consequence of our decisions andbecause of our duty to cooperate with Congress and with the executivein enforcing Congressional objectives. strong policy considerationssupport, our holding that the standards of court-supervised desegrega-tion should not be lower than the standards of IIEW-superviseddesegregation. The Guidelines. of course, cannot bind the courts: weare not abdicating any judicial responsibilities.'" hut we hold thatII Mrs standards are substantially the same as this Court's stand-ads. They are required by the Constitution and. as we construe them.are within the scope of the Civil Rights Act of 19epl. In evaluatingdesegregation plans, district courts should make few exceptions tothe Guidelines and should carefully tailor those so as not to defeatthe policies of HEW or the holding of this Court.

Case by ease over the last twelve years. courts have increased theirunderstanding of the desegregation process." Less and less have courtsaccepted the question-begging distinction between "desegregation"88(1 "integration" as a sanctuary for school boards fleeing from theirconstitutional duty to establish an integrated. non-racial school sys-tem.'= With the benefit of this experience, the Court has restudied theSchool Segregation Cases. We have reexamined the nature of theNegro's right to equal educational opportunities and the extent of thecorrelative affirmative duty of the state to furnish equal educationalopportunities. We have taken a close look at the background and ob-jectives of the Civil Rights Act of Mt"

We approach decision-making here with humility. Many intelligentmen of good will who have dedicated their lives to public education aredeeply concerned for fear that a doctrinaire approach to desegregatingschools may lower educational standards or even destroy public schoolsin some areas. These educators and school administratoN. especially illcommunities where total segregation has been the way of life fromcradle to coffin, may fail to i ulnerstand all of the legal implications ofBeou n. but they understand the grim realities of the problems thatcomplicate their task.

The Court is aware of the gravity of their problems. (1) Sonic de-termined opponents of desegregation would scuttle public education

45 C.F.R. 450.4(c) (1904).In Singleton. I, to avoid any such infecence, we said : "The Judiciary has of course

functions and duties distinct from those roc the executive department . Absent legalquestions, the United States Office of Education is better qualified. ..." 345 F. 2d at 731.

n "The rule has become: the later the start the shorter the time allowed for transition."Lockett V. Board of Education of Muscogee County. 5 Cir. 1905, 342 P.24 225. 22n.

See Section III A and footnote 5."The Court asked counsel in these cosolidated cases and in five other ease.: for

briefs on the following questions:(a) To what extent, consistent with judicial prerogatives and obligations, statutory

and constitutional. is it permissible and desirable for a federal court (trial or apnellat)to give weight to or to rely on H.E.W. guidelines and policies in cases before thecourt?

(b) If permissible and desirable. what practical means and methods do you suggestthat federal courts (trial and appellate) should follow in making guidelinesand policies judicially effective?

rather than send ',heir children to schools with Negro children. Thesemen flee to the suburbs, reinforcing urban neighborhood school pat-tn's. (2) Private schools, aided by state grants, have mushroomed insome states in this circuit." The flight of white children to these newschools and to established private and parochial schools promotes re-segregation. (3) Many white teachers I refer not to teach in Negroschools. They are tempted to seek employment at white schools or toretire. () Many Negro children, for various reasons, prefer to finishschool where they started. (5) The gap between white and Negroscholastic achievements causes all sorts of difficulties. There is no con-solation in the fact that the gap depends on the socio- economic statusof Negroes at least as much as it depends on inferior Negro schools.

No court can have a confident solution for a legal problem so closelyintern oven with political, social, and moral threads as the problem ofestablishing fair, workable standards for undoing de jury school segre-:ration in the South. The Civil Rights Act of 196,1 and the TIEW Guide-lines are belated but invaluable helps in arriving at a neutral.principled decision cmisistent with the dimensions of the problem.traditional :Wield functions. and the United States Constitution.We grasp the nettle.

T.

"No army is stronger than an idea whose time has-come. Teo yearsafter Brown came the Civil Rights Act of 196 I." Congress decidedthat the time had come for a sweeping civil rights advance, includingnational legislation to speed up desegregation of public - ('hoops andto put teeth into enforcement of de:tegregation." Titles 1\- and VTtogether constitute the congressional alternative to eourt..uperviseddesegrezation. These sections of the law mobilize in aid of desegregat-ing the rnited States Office of Education and the Nation's purse.

HAI:11141t11:1 provides tnitlnn Crantg At, $155 a year and Lonilatia $ 3110 a e or to stmlentgattending jai% seboals..'0111Y and exn r ..... ort nn 011V1011 DrIVntoria',1)(A to aold de.grog:Mott In saddle seltoels. lio to tlw eltool year 194;3-n6 Lentlonshad "some 11.030 pupils Mee:111v reeetinc ttnte toition grants to attend private eltool.."This nalailer Will be staniticanny inereased as n result at new private seltoels in Plaque.nines Parish. Leeson, Private Schools Continue to Inereage in the South. Sonthet n niticanon Report. November 1933, p. 23. in Louisiana. student t attP(Iii111:: pareelolal sebools donot reeeive Ninon grants.

'IN a press meeting May 19. 19114, to discuss the Orli Rights bill. Senator EverettDirksen so paraphrased, "An re.sigte A rittratdon des tanntes ne resiste pas A !Invasiondes Mites." Vletoor !Ingo. Instorie Out crime: CIMCIIIMMI: La chute. Ch. 10 (15771. SPII:Hag Dirksett then said. "Let minors rave at will and let states folutinate at will. but thethme has come. and it can't be stopped." Cong. Qnarterly fierviee. Revolution in CivilRights 43 (1937.1.

I" MR. 7132. PO, L. SS-352.75 Stat. 243 sppenved July 2, 1934,':lain the last. deentle It has lap01114. ittereasinaty Clear that progress has been too

slow and that national legislation is reattired to meet a national need e Welt beemnegMor more obvious. That need is evidenced. on the alto band, by it growitta impatteneeby the victims of discrimination with its and, on the other lonti, he a gruwhug teen:minim on the hart at all of our people at the ineompatthility at Such dIscrimitunon with our ideas and the prinelples to which this tountry Is dedicated. A number ofhrorisions of the Constitution at the United States (dearly supply the means 'to seettrethew rights.' and nat. 7152. as amended, resting: upon this authority is designed as nstep toward eidleatillt SIIIIMPant areas nt discrimination on a nittonwide basis. itis general in :While:Mon and national In genpe," nous° Joulielarr Committee Report No.914. to Aecompaltv lilt. 71:2. 2 V.5, CMIN Congressional and Administrative News. 55thCont. 21141 Si's, 1964 29:,:t. "The transition from alt :Cecil) to integrated Ma* is at best

diflictilt ttroblent if adjustment tar teachers and students alike. . Me hare tried topoint nut that the ltrogresq. In sehnni desegregation go well commenced in the period 1054

has been grinding to a halt. The trend observed in 1957Mt toward desegregation bycourt order rather than by voluntary aetion has cotatintitok It is not healthy nor richtin this country to require the local residents at a community to carry the sale burdenand tare alone the hazards of eontraencine costly litigation to compel sehoo1 desegregation.After all, it is the responsibility at the Federal Government to prateet eonstitntionalrights... ." Additional Views on II 11.7152 of non. William M. NfeCotIloeh. non. 331in V.Lindsay, 113n, Witilstn T. Cahill. nom Garner R Shriner Hon, Clark MacGregor. non.Charles :Mee. Mathias. Hon. dames E. Brornwell." ibid.. 2487.

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23

this Court. . . . [ But we also] consider 't important to make clear that. . we do not abdicate our judicial responsibility for determiningwhether a school desegregation plan violates federally gliarantee'drights." Singleton r. Jackson ,Municipal Separate Sehool Pistriet. 5Cir. 1966, 355 F.2(1 815 (Singleton II). In Paris e. Board of SchoolCommissioners of Mobile County, 5 Cir. 1966, MU F.'2(1 896, the mostrecent sehool ease before this Court. we approved Singleton 1 and //and Prie r. Denison, and ordered certain changes in the school play iuconformity with the II ENV Guidelines.

Courts in other circuits are in substantial agreement with this Court.In Kemp e. Reasdey. 8 Cir. 1965, 352 F. 2d 14, 18-19, the Court said:-The Court ;lames that these [HEW] standards must be hearily reliedupon.... [T]he courts should endeavor to model their standards afterthose promulgated by the executive. They are not bound, however, andwhen circumstances dictate. the courts may require something more.less or different from the II.E.W. guidelines." ( Emphasis added.)Concurring. Judge Larson observed: "Ifowever. that 'something dif-ferent' should rarely, if ever be less than what is contemplated by theH.E.W. standards.- :352 F.2d at 23. smith r. Board of Ednention ofllorri/ton. s Cir. 1966. 365 F.2d 770 reaffirms that the Guidelines "areentitled to serious judicial deference-.

Alt hough the Court of Appeals for the Fourth Circuit has not vetconsidered the effect of the HEW standards. district courts in thatcircuit hart' relied oii the guidelines. See !Gee r. rowdy School Boardof .Ing,Ista rntenty. 1966. 249 F. Sum). 239: rightronnta School Board of Green rille (*minty. E.D.Va. 1966. 2:2 F.Supp. 37: .1/Ner e. Clarendon County School District No. 2, D.S.C..Civil Action No. $752. April 21. 1966. In Miller. one of the most re-cent of these cases, the court said

The orderly progress of desegregation is hest served if selunolsystems desegreautina under court order are required to meetthe minimum standards promulgated for systems that desegregatevoluntarily. lA ithout directing absolute adherence to thevise,' Standards.' guidelines at this juncture, this court will wel-come their inclusion in an3 new, amended. or substitute planwhich may be adopted and submitted.

In this circuit, the school problem arises from state action. ThisCourt has not had to deal with nonraeiallv n.otivated de facto siTre-grafion. that is. racial Imbalance resulting 'fortuitously in a school .sys-tem based on a single neighborhood scho.- serving all white and Negrochildren in a certain attendance area or neialeoorhood. For this eh--cult, the HEW Guidelines offer. for the first time. the prospect thatthe t niiisit ion from a de jure, segregated dual system to a unitary inte-grated system may be carried out effectively. promptly. and in mu or-derly See Appendix B. Bate of Change and Status of De-segregation.

We read Title VT as a congressional mandate for change--( han!rein pare and method of enforcing desegregation. The 1964 Act doesnot. disavow cout-supervised desegregation. On the contrary. Con-gress recognized that to the courts belongs the last word in any ease

94

or contmversy.31 But Congress was dissatisfied with the slow progurs:inherent in the judicial adversary proeess.32 Congress therefore fash-ioned a new method of enforcement to he administemd not on a ease byease basis as in the courts hut, frenendly. by federal agencies operatingon a national scale and havinga special competence in their respectivefields. Congress looked to these agencies to shoulder the additional en-forcement burdens resulting from the shift to high gear in school de-segregation.

A. Congress was well aware that it was time for a chaTre. In thedecade following Brown. court-supervised desegregation made quali-tative progress: Responsible Southern leaders accepted desegregationas a settled constitutional principle." Qualitatively. the results weremeagre. The -tatistics speak eloquently. See Appendix B. Rate ofChange and Status of Desegregation. In 1905 the public school dis-tricts in the consolidated cases now before this Court had a school pop-ulation of 155.1'82 school children. 59.301 of whom were Negro. Yet un-der the existing court-approved desegregation plans. only 110 Negrochildren in these districts. .019 pet' cent of the school population, at-tend former "white" schools.' In 1965 there was no faculty desegrega-tion in any of these school districts: indeed. none of the 30.500 Negroteachers in Alabama. Louisiana. and Mississippi served with any ofthe, 65.400 white teaeners in those states.' In the 19G3--(14 school year.

Till" IV. $ 117. 42 r.s.C. $ 21109 (el authorizing the Attorney General to bringon receipt of a written eamplaint. would seen: to imply thig ronchisiml. See:ion 4119 pre..r.-eg the right of individual eiti7em ro .ne for or obtain relief- ac1104 dbcrimina:ionin pnbli. nlncatlnn. IIF.W Begolathms provide: In any ease in which a fiord order of:t ....net of the Frilted Stateg for the de:et:rev:riot: of smelt grim.l or school .gystentnrl after %Wm:be:ion of .meh a plan, sorb a phn shall te. revigd to conform m %Ise':final order. it:eh:ding any future novlitiention of sue:: nob r 4 . $ S0.4 (1:"a 1.r* fo.enole 173, -The Federal courtg hare been regpon.lhie for L.-rent mleane in eivilright.: the iaek big been in quantitative implemertationin enabling the fmlividull toavail himself of these great decigiong.- Bernhard and Natalie. Between Ithrlag anddie.. Cenrretorcn T.. Joirr, 915. 91C (19rm1rit k the een,.n.a. of the judges on thetiring line, so to speak. that one phase in the adminktration of the lawthe .-,tab 'b.11.men. phage, eizannetrized by perm:Igive tokenigni. by a .art of minimal judirial holdingof the line while the nnOrie31 nroeesg .11.1. as it m.p.t, the nraIrt job of e.tahlMzingthiplunge big been etsned Ti... Deende of Selmol Degegre:mtion. (II Follun. 1. !Zevon, 2119 (19r.4). The ehangeg of the past deeade have diaMminted the most ontimieth-hoes, but they have been dramatically sweeping nonetheless Dellhozn. A Decide of PP1.7a.tra ionftetrn,i..et and Progpeet. 9 nab I.. Bev. mum. "what maters one tmeavof ."arse. 14 the truly awesome magnitude of what hag yet to ho done?' Mar%hall. Thernorts. in renter for the Studv of Thmmeratie Ingti:ntIong. The Mare of Modern rove-3went 31% (wat). quoted in Pollak. Ten years After the Perlgion. 21 F.gl, It:r Jour 12::11:1(1. On the first decade of desegregation. see generally. Sarratt. The Ordeal of De.....zregath.o of th,. Nr,,v,.:,:tqa (1). Kim: ed. 19C5(5,f! 'ANC 111C1W 1

Trade:troll:rem VegreW5 admitted- --------- to formr:IvWhite Negro <ellnt%

IL-csernrr. All 2. fr.n 5.2g1 13Vairfichl. All1, 7V.0 2.151 31Jcifergon Cn lllll v..l11.1 t5.01Yi 1,;.1100 !.:Fado Parish. tea..

30.6041 21, lc: IBoggier Parlay. La . .. . 11. Inn 1.4:10 31Jackson Parh. I.:1 ...... . . ... . ... '451g I.(wr: 5(Whom. Parish. 1.:1 2.3'1 3.41! 3

Note: Atildwir of Sr Joins Bwrett.1:torucy. Dp irtntent otariled to motion to ermodhlateand expr.lite appeals.

Dept. of Tlealth. Education, and Welfare.. 011iee of Felt:cation Release, Table 3,September 27. 19(15. In the 11 states of the Confederacy there are 1c00 Negro teaeherg.1.9 per rent of all the Negro tenet:erg in Southern shoolg, aggigned to rahontk with biracialfir:lines. By rontragt. In the border states (Delaware. 1:enturky. Maryland. M1gsnurl.Olalhoma. and Wegt Virzin1.1. Si per rent of the Negro tow hers now tearlt white student..

95

the elevent states of the Confederacy had 1.17 per cent of their Negrostudents in schools with white students.' In 19(4-65, undoubtedlybecause of the effect of the 1964 Act. the percentage doubled. reaching

For the 1965-66 school year. this time because HEW Guidelines.the percentage reached 6.01 per cent. In 1965-66 the entire region en-compassing the Southern and border states had 10.9 per cent of theirNegro children in school with whitechildren : 1.55 biracial school dis-tricts out of 3,031 in the Southern and border states were still fullysegregated; 3,101,043 Negro children in thc region attended all-Negroschools. Despite the impetus of the 1964 Act, the states of Alabama,Louisiana, and Mississippi, still had less t:ian one per cent of theirNegro enrollment attending schools with white students.'

The dead humid of the old past and the closed fist of the recent past.account for sonic of the slow progress. There are other reasonsasobvious to Congress as to courts. (1) Local loyalties compelled schoolofficials mid elected officials to make a public record of their unwilling-ness to act. But even school authorities to act have moved slowlybecause of uncertainty as to the scope of their duty to act affirmatively.This is attributable to (a) a misplaced reliance on the Briggs dictumthat. the Constitution -does not require integration"." (b) a misunder-standing- of the Brown II mandate. desegregate with "due deliberatespeed"? and (c) a mistaken notion that transfers under the PupilPlacement Laws satisfy desegregation requirements.' (2) Case by ease

idevelopment of the law is at poor sort of medium for reasonably promptand uniform desegregation. There are natural limits to effective legalaction. Courts cannot give advisory opinions. and the disciplinedexercise of the judicial function properly makes courts reluctant tomove forward in an area of the law bordering the periphery of thejudicial domain. (3) The contempt power is ill-suited to serve as the

w Southern Education Reporting Service. Statistical Summary. Dec. 1961. cited In U.S.Comm, on Civil Rights, Survey of School Desegregation in the Southern and BorderStates 1965-66. p. 1.37/tdd.: see footnote 3 : Appendix B. Rate of Change and Status of Desegregation.See Section III A of this opinion.m' In Davis v. Board of School Commissioners of Mobile County. 5 Cir. 1966. 364 P.2.1s96. S9S, Judge Tuttle. for the Court. said: "This is the fourth appearance of this casebefore this court. This present appeal. coming as it does from an order of the trialenurt entered nearly eighteen months ago, on March 31. 1965. points up. :MOM: otherthiegs, the utter impracticability of a continued exercise by the courts of the responsibility for supervising the manner in which segregated school systeM4 break out ofthe policy of complete segregation into gradual steps of compliance and toward comoletecompliance with the constitutional requirements of Brown v. Board of Education. 347 FA453. One of the reasons fur the impracticability of this method of aVer:.eollta the tratedtionalstages of operations of the sehool beards involved is that. under the Supreme Court's'deliberate -.peed* provisions. it has been the duty of the appellate courts to interpret andreinterpret till, hingengt. as time has grown apace, it now toeing the to eifth school carshoes. the Supreme Court's tic-TH.0n:""The pupil assignment acts have been the principal obstacle to desegregation inthe South." U.S. Comm. on Civil Rights, Civil Rights C.S.A.Public Schools. SouthernStates 15. 1962. See Note. The 1 mral Courts and Integration of Southern Schools:Troubled Status of the Pupil l'Inceme .t Acts. 62 Cohn... L. Rev. 1448. 1471-74 (1962) :MI v. Orleans Parish School Roard. C f. 1962. 30S P.2.1 491. Such laws allow carefullyscreened Negro children. on their application, to transfer to white sehools from thet-ecregated schools to which the Negroes were initially unconstitutionally assigned.Often. even after six to eight years of no desegregation. these transfers were limitedto a grade n year. When this law first came before us we held it to be unconstituinnal.Ih11 v. Orleans Parish Seionn, NO rd. E.D.La. 1936, 138 P. Supp. 337. ai.? 242 P.2.1 136.err ?. ilen'd 314 U.S. 921 (19371. Later. in a narrowly focused opinion, we held that theAlabanta version wns constitutional on ifs Jeer. Shuttle:41%mM v. ItIrmiughara Board ofEducation. N.D.Ala. 1938. 162 P.Supp. 372. ant per euriam. 338 .S. 101 11918). Aslong ago as 1939 and 1960 this Court disapproved of such acts as reasonable starttoward full compliance. Gibson v. Board of Public Instruction of Dade County. 272P.2t1 763; NImnings v. Board of Public Instruction of IIIIIborough County. 277 P.2.1 370.See also Rush v. Orleans Parish School Board. 5 Cir. 19r1. .:08 }'.2d 491 : Evers v.Jackson Municipal Separate School District. 5 Cir. 1964. 328 P.211 405 "I'llhe entirepublic knows that in fact (the Louisiana law( Is being used to maintain segregation.. It is not n plan for desegregation nt all." Bush v. Orleans Parish School Roam, 30SPid at 499-500.

26

chief means of c::forcing desegregation. Judges naturally shrink fromusing it. against citizens willing to accept the thankless. painful re-sponsibility of serving on a school board." (4) School desegregationplans are often woefully inadequate: they rarely provide necessarydetailed instructions and specific answers to administrative problems.*-And most judges do not have sufficient competencethey are not edu-cators or school administratorsto know the right questions. much lessthe right answers. (5) But one reason more than any other has heldback desegregation of public schools on a large scale. This has been thelack. until 1964, of effective congressional statutory recognition ofschool desegregation as the law of the land.'

"Considerable progress has been made . . . Nevertheless, in the lastdecade it. has become inewasingly clear that progress has been too slowand that national legislation is required to meet, a national need whichbecomes ever more obvious.- 4 4 Title VI of the Civil Rights Act of1964, therefore, was not only appropriate and proper legislation underthe Thirteenth and Fourteenth Amendments: it was necesary to MOWschool desegregation from the bog in which it had been trapped forten years."

The Civil Riplits Commission, doubtless better able than any otherauthority to understand the significance of the Civil Rights Act of1964, had this to say about Title. VI :

"This statute heralded a new era in school desegregation ... Mostsignificantly . . . Federal power was to be brought to bear in amanner which promised speedier and more substantial desegrega-tion than had been achieved through the voluntary efforts of

41 Bush v. Orleans Parish School Board is an example. The board was plagued by bundlesof Louisiana statutes aimed at defeating desegregation. There were five extra sessionsof the houPJana legislature in 19611. After the School Board had for three }ears failedto comply with an order to submit a plan. the district judge wrote one himself. Thetrial Judge simply said: "All children [entering New Orleans public schools . . . mayattend either the formerly all white public schools nearest their homes. or the formerlyall Negro public schools nearest their homes. at their option. B. Children may be trans-ferred from one school to another, provided such transfers are not based on race". 204F.Supp. 568, 571-72.

4 For example. the order of the nble district judge in Bash. See footnote 41. JudgeBohanon underscored this point in Dowell v. School Board of Oklahoma City PublicSchools, W.D.Okla. 1965. 244 F. Supp. 971, 976: "The plan submitted to this Court . .is not a pinn. but a statement of policy. School desegregation is a difficult and coinyplicated matter, and, as the record shows. cannot be accomplished by a statement ofpolicy. 5 Desegregation of public schools in a system as large as Oklahoma City requires:i definite and positive plan providing definable and ascertainable goals to he achievedwithin a definite time according to a prepared procedure and with responsibilities clearlydesignated."

43 The Civil Rights Act of 1964 had its direct genesis in Preqdent Kennedy's messageto Congress of June 1 1963. urging passage of an omnibus civil rights law. Ile noted :"In the continued absence of congressional action, too many state and local officials as wellas businessmen will remain unwilling to accord these rights to all citizens. Sonic localcourts and local merchants may well claim to be uncertain of the law. while thosemerchants who do recognize the justice of the Negro's request (and I believe these con-stitute the great majority of merchants. North and South) will be fearful of being thefirst to move. in the face of official customer. employee. or competitive pressures. Negroes.consequently. can be expected to continue increasingly to see the vindication of theserights through organized direst action, with all its potentially explosive consequences.such as we have seen in Birmingham, in Philadelphia, in Jackson, in Boston, in Cam-bridge, Md.. and In many other parts, of the country. 'In short, the result of continuedFederal legislative inaction will be continued if not increased, racial strifecausingthe leademship on both sides to pass from the bands of reasonable and responsible mento the purveyors of hate and violence. endangering the domestic tranquillity. retarding ournation's economic and social progress and weakening the respect with which the rest ofthe world regards us. No American. I feel sure. would prefer this course of tension. dis-order. and divisionand the great majority of our citizens simply cannot accept it." II.Doe. 124, 88th Cong. 1st Sess..rune 20, 1963, Itep, Emanuel Cello, Chairman of the HouseJudiciary Committee. introduced II.R. 7152 embodying the President's proposals. Thesame day Senator Mike Mansfield introduced a similar bill. S. 1731. II.R. 7152S. 1731, asamended. became the Civil Rights Act of 1964.

44 II. Rep. No. 914. 88th Cong.. 1st Sess.44"It was the Congressional purpose, in Title VI of the CM! lt,glits Act of 1964. to

remove gam& desegregation efforts from the courts. where they bad been bogged down formore than a decade. Unless the power of the Federal purse is more effectivelyresistance to national policy will continue and. In feet. will be reinforced," Report or theWhite Iionse Conference "To Fulfill These Rights", June 1-2, 1966. p. 63.

school boards and district-by-district litigation. ... During fiscalyear 1964, $176,546,992 was distributed to State and local schoolagencies in the 17 Southern and border States. The passage of theElementary and Secondary Education Act of 1965 added an addi-tional appropriation of $589,946,135 for allocation to the 17Southern and border States for fiscal year 1966. With funds ofsuch magnitude at stake. most school systems would be placed ata serious disadvantage by termination of Federal assistance. ";'

B. The congressional mandate, as embodied in the Act and as carriedout in the IIEW Guidelines, does not conflict with the proper exerciseof the judicial function or with the doctrine of separation of powers.It does however profoundly affect constructive use of the judicial func-tion within the lawful scope of sound judicial discretion. When Con-gress declares national policy. the duty the two other coordinatebranches owe to the Nation requires that, within the law, the judiciaryand the executive respect and carry out that policy. Here the ChiefExecutive acted promptly to bring about uniform standards for de-segregation. The judicial branch too should cooperate with Congressand the executive in making administrative agencies effective instru-ments for supervising and enforcing desegregation of public schools.Justice 1h; rla n F. Stone expressed this well :

Legislatures create administrative agencies with the desire andexpectation that they will perform efficiently the tasks committedto them. That, at least, is one of the contemplated social advantagesto be weighed in resolving doubtful construction. Its aim is so ob-vious as to make unavoidable the conclusion that the functionwhich courts are called upon to perform, in carrying into opera-tion such administrative schemes, is constructive, not destructive,to make administrative agencies, whenever reasonably possible,effective instruments for law enforcement, and not to destroythem."

In an analogous situation involving enforcement of the Fair LaborStandards Act, the Supreme Court has raid, "Good administration ofthe Act and good judicial administration alike require that the stand-ards of public enforcement and those for determining private rightsshall be at variance only where justified by very good reasons." Skid-more v. Swift d Co., 1944, 323 U.S. 134, 65 S. Ct. 161, 89 L. Ed. 124.In an appeal from the district court's denial of an injunction to enforcelabor standards under the Act this Court has pointed out :tt this proceeding is only superfically related to a suit in

equity for an injunction to protect inteiests jeopardized in a pri-vate controversy. The public interest is jeopardized here. The in-junctive processes are a means of effecting general compliancewith national policy as expressed by Congress, a public policy

"Rep. U.S. Comm. on Civil Rights, Survey of School Desegregation in the Southernand Border States--1965-6,6, p. 2.',Stone. The Common haw in the United States, 50 Marv, L. Rev. I, IS (I036). In asimilar vein, writing for the Court. Justice Stone has said : "... in construing a statuteetting up an adainistrative agency and prodding for judicial review of its action. courtand agency are it'd to Lao regarded as wholly indeoendent and unrelated instramentalltie.of justice, each acting in the performance of its prescribed statutory duty without regardto the appropriate function of the other in securing the pllaly indicated objects of thestatute. (.'oars a nil agency are the mean., adopuvl to ottahn t he pr,.,ertm.d end. and so far a.their dully.; are, defined by the words of the statute, tho.e word- should be construed so asto attain that end through coordinated action. Neither body .1tould repeat in thl daythe mistake made by the marts of taw when equity was troggling for rect.guition as anameliorating sy.tem of justice.: neither can rightly be regardel M the other I., an amenintruder. to be tolerated if tans.t be. bat never to be eneouraged er aided by the other in theattainment of the emomon aim:' 1nited States v. Morgan, 1939. 307 I S. 1S3, 1:01, 9S. Ct. 79.3, 799, S3 L.Ed. 1211.

28

judges too must carry outatnated by the spirit of the law andnot begrudgingly as if it were a newly imposed fiat of a presidi-um. Implicit in the defendants' non-compliance, as we read thebriefs and the record, is a certain underlying, not unnatural. Ac-tonian distaste for national leffislation affecting local activities.But the Fair Labor Standard's Law has been on the books fortwenty-three vears. The Act establishes a policy for all of the coun-tr, and for the courts as well as for the agency required to ad-minister the law. Mitchell v. Pidcock, 5 Cir. 1942, 299 F. 2d 281.2ST, 288.

C. We must, therefore cooperate with Congress and the Executive inenforcing Title VI. The problem is: Are the HEW Guidelines withinthe scope of the congressional and executive policies embodied in theCivil Rights Act of 1964.We held that they are.

The Guidelines do not purport to be a rule or regulation or order.They constitute a statement of policy under section 80.4(e) of theHEW Regulations issued after the President approved the regulationsDecember 3,1964. HEW is under no statutory compulsion to issue suchcztatements. it is, however, of manifest advantage to school boardsthroughout the country and to the general public to know the criteriathe Commissioner uses in determining whether a school meets the re-quirements for eligibility to receive, financial assistance.

The Guidelines have the vices of all administrative policies estab-lished unilaterally without it hearing. Because of these vices the courts,as the school boards point out, have set limits on administrative regula-tions, rulings, policies, and practices: an agency construction of astatute cannot make the law: it must, conform to the law and be reason-able. To some extent the administrative weight of the declarations de-pends on the place of such declarations in the hierarchy of agency pro-nouncements extending from regulations down to general counsel mem-oranda and inter-office decisions. See Manhattan General ElectricCompany r. Commissiover. 1936, 297 U.S. 129, 56 S. Ct. 397, 80 L. Ed.528: United States v. Bennett, 5 Cir. 1951. 186 F.2d 407: United States

.11Thsi.wlippi Chemical Corporation. 5 Cir. 1964, 326 F.2d 569; Chat-tanooga Auto Club v. Commissioner, 6 Cir. 1950, 182 F.2d. 551.

These and similar decisions are not inconsistent with the court'sgiving great weight to the IIEW's policy statements on enforcementof Title VI. in Sleklin 0 re 9'. Swift Co.. 323 U.S. 134. an action wascommenced in a federal district court by employees of Swift cc: Co.to recover wages at, the overtime rates prescribed by the Fair LaborStandards Act (52 Stat. 1060. et, seq.) for certain services which theyhad performed. At issue was whether these services constituted "em-ployment- within the meaning of section 7(a) of that act. The districtcourt and this Court. on appeal, decided this issue against the plain-tiffs. The Supreme Court reversed. After acknowledging (323 U.S.at. 137) that the statute had granted no rule-making power to theWage and Hour Administrator with respect to the issue at hand("Mnstead, it put this responsibility on the courts"), the Courtreferred to an "interpretative Bulletin" issued by the Administratorcontaining his interpretation of the statutory phrase in question. TheSupreme Court said :

"We consider that the rulings, interpretations and opinionsof the Administrator ender this Act, while not controlling uponthe courts by reason of their authority, do constitute a body ofexperience and informed judgment to courts and litigants

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V(il'S iat(1' ( 'iariidon ( ouiitv seiioois s iii totally s(r(.

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14:1 WS. t I w I host elket I ye t met III i(1 11L 191 iei' at unit i ng sri i' )Oi smgreg;u t Ion.

nd it is not suirprisilig t ii:ut sdiool oliiriu is-t lie /ryy. li;t un dinnedI ut 0 t I ui r en u's for a dmtade-i iiuvm not u ioW meet! ill) to f:irui it ,v mt ezra-I on. I I wm ye r. us t Ii is ('on rt 's mx I mrieI lee in I in uid Ii ng Sri uooi eases

iuiriviiseti. t lie ( 'ouurt hme:i Int' a v:u re of t lie fruist rat iug (Ileets ofn,;,.,..

Iii ..:;IIf/l.foII / 'V( re ferred to t lie (lietulili 8S "ilI('OIISiSt(IIt wit Ii flroiiliii nut! t lie later dmveIopuuieiit of derisiona I and stat ntory law int lie a re;i of mlvi I rights. :14S J'.d nt 730 ii.. Iii ,hu,k/o,, 1/ ma I lid

it au Thersi nupi ilied eonst nuet iou 0! 1/muir,. I. We added :('oust it iition foubuls iiiro1iSt ituitioni state art iou in the foriui of sv-regat et I f:uei lit ims. I lid uud lug st'gregat ed )uuI)I ie sd 100 Is. eI iooI uiut ! o r-

it ums. therefore, ale unitier the eouist ituit ni:tI eOuiii)uuIsiOiu of fuuruiisliuuiga siiigh.. iuilmrated sdiooi systeuii. ::, I.'.d at :1;t. Other federaleouirts ha 'i'm d isu pproved of t lie flriqj duet uuiui.

5'.' ltri,i,-.'': i it,nir, nt ..... of Srii.l,li l)iolrli'l "l 1 4 ('ir. 194i2. :ii 1 t"°iI 107$i,i, I i,s'r,j F,l.'n t liii R.'j..rI Iij S.ri'l.',., SI : l,' I SilillillO r .S'ii u'ifl4 . 4 fl

'i'ii' Fift Ii ( 'I reid I eu ..... or.' : uiur.lir v. RiiiI.. I 247 l.2.l 24i5. 27 I :

u{luii.y, 1ii;i4. 2S i.2i 4$. 45 u..0 Iwl I i. utimrd of u'.lui':iliun of Mucog.,. ('olIlily. ('Ir.I i;i, :142 I'.2.l 22i : .'t i'ery r. 'iVirli II a Vi Ii I llii,'il..il,'l.l $ti,i.ol I )il ru. 1 4i, 24 I V.2i1

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rio :i lit of .'o.'o 114 iii iui'r 'ir,uiil'. s.'.. fi ll,li' Ill iiiil II In liloekir i i1oar,IIi : .. o I: ! ' V Iln;l 22': i Sill. i'.. ?'i i I:ImL, ,' .11011.',' '/..uIll

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Amendment pro, ulcs. -nor shall any state . . . deny to any personwithin its jurisdict ion the equal protection Of the laws". The dictumum.% also I w defensible, if the ThjyriN court used the term -niteglattoilto mean all absolute command at all eosts that each and every Negrochild at tend a raeially balanced school.'" Hut what is wrong about the(181 11111 is more important than what is right :flout it. What is wroor.about B1 figs is that it drains out of Brown that decision's significanceas a class action to secure equal educat halal opportunities for Negroesby eompelliiig the states to reorrau ize their public. school systems.~' A.11

four of the original School scgre(olion eases were laSs arelottS anddescrilwd as such in the opin ions, 347 U.S. at 455.

We do not minithize the importance of the Fourteenth .t 111(40-

ment rights of an individual. but there was more at issue in Brown,than the controversy between certain schools and certain children.firigyx overlooks the fart that Negroes collectively are harmed whenthe state: by law or custoill. Segrtgaied schools or a schoolsystem wit 11 uncorrected effects of segregat

Denial of access to the dominant culture. lack of opportunity in allymeaningful way to participate ID imlitica 1 and other plddiethe stigma of aim rt held condemned in the Thirteenth .1me»ilm nt areconcomitants of the dual educational system, The unniallealAe facttranscending in importance the harm to individual Negro children

tliat the separate school system was an integral element in theSouthern State's general program to restrict Negroes as a ela::.4 from

Part icipat Ion in the life oftn he community, tIIP affairs of the State. and. . . . ,

constitutional privile.ge has helm Invaded". Nleralee v. Atchison. T. & 5.1'. Hy.. 1914. 2:15F.S. 151. 101 112'. :35 S.Ct. 09. 59 10:11. 109. The legislative Idstory of the 14th Ante:ohne litprovides no information uu thls point. See. Frank and Munro. The Original enderstatillIngof Equal Proteet ion of the I.ans. ou redeem. I. Rev. 131 (1115111: Bickel. 'nip Original Fleelorstanding and the Segregation Devil-ion. 1111 ilarv. 1.. Rev, 1 11:1551. not "the personal natureof the right Ill 110 free from 4161.1111111111110k was declared In order to make the ezhetetu 0 of.eel right independent of the member of other members of the SOME radial group who werevietinel..el 10 the diserlmina:ltt. 11.0.1111.01, The Ingle( to l'apeal FahleatIonal Opportesalt le. aN Personal and Present flight, 9 :13 lee I.. Um'. 424. 427 (1903).

4 What Is meant by the statement of "11.1 duly to Integrate- 1.e that a ?whim' bonrel "domenot heti I' 1st completely alter boundaries and to insure that eiers seliesel distrlel is mixed.mete though some .indents n III hove 0 gloat 111,411044. to fr0VI1 . . If:lien 0101101 thestate ie. me: required to integrate fully 4%ory sel ..... I and child, this does not meals thatthe state may not 10101 certain responsibilities to children of a minority :nee while coneating them. the failure to perform nhicll may he einconsifttellonal, seller, School Segregation In the North and west: Legal Aspet.e, 7 51, Louts 1%1...1. :2'25 5I (19031. See alsothe ellseeisslent of Barksdale v. Springfield School Comm., at 05.87, Infra.

Rule 23a. Feel. It eh% berme the. re, ent anienelments, nos ueicar as :0 whrtrfavewahle deeree applies to members of the doss n leo do not ;oh: in the soft eomeeceMom.. Federal Preemie.. 341:4 12e1 with elielfee. 80111t Prole...111g in 1.111111y OP

119.411. .10:11111g %%It h [segregation] (111K. ittrt have largo!)' 416reganled Moore',11111111..111011. and Fuse Inelleated that an 110111111ho11 W11111(1 run to the benefit tittees." OW Imw-NlefitIparty Litigation In the Federal Courts. 71 Baru,I. lier. 574..135 119551. Clam: 'frown 349 1%5. at 300 301 airtime; //town f. 847 1%:":13 ttin ullrteuu : now, School Board v. Hash. S ell% 11(57. 42 2d 15(1, 105 00

41:.1111111 1:roweler v. (1:12,1e. .11,1), Alm 19:10, 142 1' Stipp. 707. 711. 714, a.ff el per cashes.312 F.S, 903 4195114: Frasier 0. Board of riestees of I nlversily of Sortie Carolina. M ItN 14:15. 114 I' Soul. 559, off d per enrinm. 350 1'.s.:179 195in

buns of the Fourteenth Amendment are .1* course violations of leollvIdlial orperomnI rights. bat where they are 1 1111131111 1..li , geudrally iri.t..111..s. of race. they are nn

entitled to be made the subject of class netlems and edass aeljnelications her :tile. than are other several rights." 111141.: City V, V1111.1111. Cir. 1953.. 201 17. 5_ .

eert. denied 311; F.S. 5211 1953o. : :160 I1011114... y, City of .ttlanta. N.1) Oa. 11,54. 124P. Stipp. 290. a8"41 223 2.I tla Judgencht ineated and remanded for a hroadel elcerto cotif.rfolty 01th Mayor and City of Baltimore v. Dawson. 3:01 l',S. 977 (19551: defiers

Whitley. 4 elr 1(02. 309 V.241 021: Ilruelsou v. Hoard of *rm.:tees of Sellout Died:letNo t, 4 elr. 19412. :111 F.241 1117. amt. denied 373 t' S. 933 (19631

See commenf. The (lass .lotion Device in Antisegregettion eases. 20 1'. ehl. 1. Pm'. 577(195:31. 5..e also netunient. 11e111party Litigation In the Federal Courts. 71 nary I. Ifei.574. 935 NI-I:ay. "With All 11014r:11 S10411 -A Study of School Desegregation. 31

N.1* 1*.I. 'Rev. 1054-Q8 (1950 : Class Aeil0tes-A Study of Group interest Lit hzation.1 Race nel. Rep. 9111 119501 : Meador. Tile Constitution :11111 1111. .tssigittnetet of pupils to

Publle ..... 45 Vet. i. new. 517, 523 (1959e.

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firoira I was decided. !miler- beyond recognition of the -per,oaarright in the individual plaintiffs, fashioned a remedy appropriate forthe class. The Court imposed on the states the duty of Enmeshing- anintegrated school system. that is, the duty 'if "effectuat('infri a transi-tion to a racially nondiscriminatory select); vysteni.""7 (Emphasisadded.) In addition. Brotrie. II subordinated the "present.' right inthe individual plaintiffs to the right. of Negroes as a class toa unitary,teonracia I systemsome time in the future: 5

The central vice in a formerly de jure segregated public schoolsystem is apartheid by coal zoning: in the past by law. the use ofone set. of attendance zones for white children and another for Negrochildren. and the compulsory initial assignment of a Negro to theNegro school in his zone. Dual zoning persists in the continuing oper-ation of Negro school identified as Negro) -historically and becausethe faculty and students are Ner-oes. Acceptance of an itulividuarsapplication for transfer. therefore. nmy satisfy that partienlar in-dividual: it will not satisfy the class. The class is all Negro children ina school district attending. by definition. inherently unequal schoolsand wearing- the badge of slavery separation displays. Relief to theclass requires school boards:to desegregate the school from which atransferee comes as well as the school to which he goes. It requiresconversion of -the dual zonse into a single system. Faculties. facilities,and activities as well as student bodies must be integrated. No matterwhat view is taken of the rationale in Brown 1. Brown 11 envisaordthe remedy following the wrote... the state's ttorreeting its diserimina-tine' ar-a hist Negmes as a class. thre,nrie separate schools. by initiating:and operating a unitary interrated school system. The gradual tran-sition the Supreme- Court authorized was to allow the states time tosolve the administrative problems inherent in that change-over. Node /ay HYMN hare seen Beeexxacy if the right .at i&sile in Brown hadhero ooh/ the right of ;m1;e;floa7 :Vegro pliant*, to adoil.wdoo to awhir,' xehaal. iloreoree. the delay of ope yar it, deritnag Brown Tiand the gradual remedy Brown II fashioned pull he jamt;fiell only onthe around that the "per:rowdy and ppesent- right of fle iotliridaalplaintiffN maxi yield to the ()ern-Nitg eight of Neyroex a* a elms toaeon,pletely teg regal et! isahne etlaeatioo.

Althonrie psychological harm and lack of edneational opportunitiesto Yerfroes may exist whether caused by de facto or de jtere segregation,

pouts will require that the defendant make a prompt and roasonal4e startand full compliance with our May 17. 1954. ntint:. Once such a start has hoen made.the courts may find that additional time 14 nece.otart to carry out r o ruling in anolTti ye manner.... To that end the courts may con.hler problem.: related is, atIndoNica.tin. ari.in2 from the physical condition of the school plant. the sellout transportationseem actwomet. .41 I 0,3011Tsi 011.1 :#1 -srr-: omt.et wilts coachieve a system of determining athnis.lon to the toddle schools on a nonracial basis.and revision of local laws and reunlations which may be neee,4ary In solvinc fore:v.1n=problems.- Brown V. 11oard of Education. 219 1..1%. 291. nnel_en. toidetl.1-if it is the Negro population as a minority croup which is entitled to attend oobliefailitIes, limn the olkleeti, . of any corrective plan would he to Icing about PoMSsiptpI.,(1.gr:ft lam of :111 Negro children in politic etIttrathm.- Hartman. The ;acid to 1:qtialnowtanIties to n renutl and Prscot itit.:ht. 9 Wtwur 4 !ler. -94- *II(190:::, f:reellitry. Itace -tol nrtio treerests in the Tin- I:trs t, !le50;.:,01, (19591. There would he no neceytary conillet between the individual's "neosonaland present- right and the class richt if the 1:rown. oomer v. .%aren, Bradley. and IttnrersY. decisions were rend as recut:nit:hut the immediate right of any Ne2p, pilintiff tosr-luster to a white %Omni. over and Whore the state's ditty to reorganize tis splint,' system.'rims in Wooeti v. rite of \temp ".1. Ittf;::. l".S 321; r.33. rt 131.1. Irt L.V 1,,Zat 119,the Sunrme (ours dated 11-a4 the A =Its wo-marl in that 1-1. -are. Ilk. all .otelt olhts.present .. warrants far the here and now and. unless there is an ',remind:flint:1yeompellitc: ream they are to 1.e promptly

a state volley of apartheid aTravates the harm. Thus, Chief ins: iceWarren quoted with approval the finding of the district court in theit'aosar case: -The impact [of the detrimental effect of segregationupon Nero children I is .rreater when it has the sanction of the law:for the policy of separati11.7 the race is usually interpreted as ib 'Toting-the inferiority of the Nerro group. A. sense of inferiority affects themotivation of a child to leant. Se:rregatin with the sanetion of law,therefore, has a tendency to [retard] the educational and mental devel-opment of Negro ehildnIt and to deprive tlient of some of the benefitsthey would reeeive ;n a aeittl[Igl itegeoted xrhoof :cyder»: (Em-phasis added.) I roar, /. 347 LS. at 494. The State, therefore, shouldhe under a duty to take whatever corrective action is nett ary to undothe harm it created and fostered.49 =State authorities were thus lintyhound to devote every effort toward initiating tlexegeration and bring-ing about the elimination of racial discrimination in the public saw!xxtem.- (Emphasis added.) COO/ter ..10I011,458 U.S. at - Some maydoubt whether tolerance of de facto se."Tegation is an _unsubtle form ofstate action. There can be no (Ionia as to the nature and effect of serre-grain', that came into bein:r and persists because of state action as partof the longstanding pattern to narrow the access of Negroes to politicalpowerand to the life of the community.

In a school system the persons capable of giving class relief are ofcourse its administrators-7. It is they who are under the affirmative dutyto taT,:e corrective action toward the goal of one interrated system. SsJudges Sobelott and Bell said in Thrui/cy v. schod llorrcr/ oi the Pityof Mehmood..1 19u5., F.4,1 ftro.

the fnitiotie is aehicing desegregation of the p»hl:eonixt coo' /ma) the xchool antinwiticI 4ifirinntice

aetion means more thoo felling Mow ratan hoer' long bee), Werlredof .freedm» of erlootti000l u' nose hare a ehoire:. . . It is now l96:i and hi:rh time for the court to insist that goodfaith eompliane requires administrators of schools to proceedactively with their nontransferable ditty to mtdo the segre:rationIvitich both by action and inaction has.been persistently perpet-uated. (Emphasis added.)

In Notherosn Board of dneation of the; illy of Mem nhig. 6 Ci.1962. :tt12 F.'2d NIS. the defendants a----serted. as the defendants asserthere. that continued segregat ion is "voluntary oa the part of Negro

and parents becawe they do not avail themselves of the transferpnivisions.- The Court held : "The Pupil Assignment Law . . .not serve as a plan to convert a biracial system into a manurialsystem . . . Negro children cannot be required to apply for that towhich they are entitled as a matter of right.... The hawk?, rextx:Pith the sehool author:Hes; to initiate tlexegreit . . . [The Board]

the renniretn.nt of antral:111re nrtioto IS. i at the very hart nr T:roirtl: .eet.: n:11,14 isnti to ntmolst: rnein1 eritrin ntt,1 nairnontirelr shun: nttenst.itue.

Vt.e.. Ravin! Itnhaln tire ht the Sehne Thr emtottztt1.8,81 Coned, t'. 7.;Hon 38;4. .12 truz). S.Y. 81.. (a:118nr and Mende. Intezrat rnt.thSehoo:tt? Sotne.tmlietnt R41..ott-t nntl n 43. t tutu:). -st.4,

nr eettre:rnt...1 ehnot, t1 :row.:11 ot1y urrantrentt. telturrzott tutok. or 1ropertr.cows.: .ttortrt.t1 cat! the mintsl toroteettnti eht:.r." Cooper r. Anron. 197.g. :t3S r.s. I. v.'.

s. c.. . . Mott nt the tn" for slerkhol. of the Warren Court Unt:0"th. .4;11:4 prOterti..:1 0a11.1 ,tnt1..

Veri Illanltreg iir..tztvz ti,. ::erntut torerr-Tht !rum partientnr rpm% of rev:I:Wpm Now the upon notsureq the ootettpm. t odo ,.rrvioc th;.- petit Me, :'ht they tun.t nke teeett to f.rniotto'o Hot or tt.i eren rewerol ; ralte.titutleeol Adjudication rail the Pt...mo-t. of 11tinnati 1:1=11. Bn /Iir. L. in... nu. n:: Itfttat).

39

shoal/ mdmat some realistic plan for the organization of their schoolson a nonracial basis-. (Emphasis added.) In Dowell r. School Boardof Oklahoma City Public iSchools.W. IX Okla. 1965. 244 F. Supp. 971,975. 978-79. the School Board in Oklahoma City had superimposed"a geographic zone plan on ~already existing residential segregationinitiated by The court held: A school board nuts4 *adopt policiesthat would increase the percentage of pupils who are obtaining adesegregated education. . . . [The) failure to adopt an affirmative pol-icy is itself a policy. adherence to which. at least in this case, has slowednp. . . the desegregation process. . . . [W]here the cessotion of (14-xignmea and ti »sfer policies based solely on race is insufficient tobring ',hold more than token change in the segregated system. theBoard mast derise offirmatiee action reammahly pu rposed to effectuatethe desegegation goal. This'conclusion makes no new law."

The position we take in these consolidated cases is that the only ade-quate reds e4X for a perioasly ored symfent-tride pulley of segregatioxdirpeted against Negroes UN a rolleetire entity is a xgxtem-teideof integration. In .S'ingleton I the Court touched on the states duty tointerTate:

"In retrospect. the seem] Brown opinion clearly imposes on pub-lic school authorities the duty to provide an integrated school sys-tem. Judre Parker's well-known dictum should be laid to rest. It isinconsistent with Brown and the later development of decisionaland statutory law in the area of civil rirlits." 348 F.2d at 730 n.5.

Three years before Singleton I this COH a nalyed the problem in PottsFlo.. 5 Cir. 1963. 313 F.2d 284. in that case the Court rejected a

se cool board's contention that a snit brought by two Negro parents wasnot a class action even though the record contained testimony that oneparent was bringing the :tenon only for his own children and not forother Negro children. The Board contended that a court order wasmint needed because it was willing to admit anv Negro child to a whiteschool on demand of any Negro child. Judge Brown, speaking for the

"Properly construed the purpose of the suit was not to achievespecific assignment of specific children to any specific grade orschool. The peculiar rights of specific individuals were not incontroversy. It was directed at the system-e4de policy of racialsegregation. It sought obliteration of that policy of system-wideracial discrimination...." 7°

Even before Potty r.Flate.in Bush v. Orleans Parish School Board,Cir. 1962 :108 P.M 492. 4991 the Court said:

"In this aspect of [initial] pupil assignment [to segregatedschools] the fads present it clear case whee then is not only dep-rivation of the rights of the individuals directly concerned but

,"The Court also said "There 14 at least considerable (Ionia that relief ronfine41 to in-dividual specified Negro ehildren either coniti be granted or if granted, could be so limitedin its operative effect. By the nature of the Controversy, the attack is on the unconstint-thmal or:1.1'1..1f racial discrimination. Once that is found to exist. the Court must ordertha: it be dlwentinued. Such n decree. of course, might name the suceessfut plaintiff astit tarty hot to he discriminated against. But that decree may noteither expressly orimpiledly affirmatively authorize continued dierint:ontime by r.eson of rare :aminstothers. Cf. Shclb:y v. Kramer. 194S. 334. U.S. 1. 08 S.Ct. 92 1161. Moreover,to regnire t: school system to admit the specific successful plaintiff Negro chill whileothers. having nu -itch protection. were required to attend schools in a racially segregatedsystcm. would be for the comet to rontribute actively to the c/osx dierimintbm proscribed

ititIt V. Orletm: Parish School Board. Ch. Iftirz. %fig .20 491. 499, nn rehearing 3081' 2d 7013: see n!,a It9+:: v. 1)3er. n Cir. 19112. at 2 F.2:I 191." Pats v. Flax. 31% P.::41 at 289.

40

deprivation of the rights of Negro school children as at classa class, and irrespective of anv individual's right to he admittedon a non-racial basis to at particular school, Negro children in thepublic slools have it constitutional right to have the public schoolsystem administered free front an administrative policy of seg-rep-at ion.

See alSO flaws V. kye. S Cir. 1963, 312 F.2d 191, 194-95; AuguAtiof 2'.Boort, of futil hoctrortion of Escattibia County, 5 Cir. 1963. :MG F..2(186 . 8(i9: Holland r. Boort! of Public 11)4)0;0o of Palm BeachComity.. Cir. 1958. 258 F.2d 130; Or/cong Porish School Boort/ i.Bush. 5 Cir. 195_ .212 F.2d 156.

Brown was an inevitable. predictable extension of ,Sieat r.Poi)itee.1950. 339 t". S. 629. 70 S.Ct. 848. 9 LEd. 114. and .1h-1 oori» e. Oaf-hmoo Mote Begeotx. 1950, 839 V.S. 637. 70 S.Ct. 851, 94 14.Ed. 1149.'"Those cases involved separate but equal or identical graduate facili-ties. Factors "incapable of objective measurement" but crucial to agood graduate education were not available to segregated Negroes.These were the intangible factors that prevented the Negro !rraduatestudents front having- normal contacts and association with whitestudents: Apartheid made the two groups unequal. In firown I thesesame intangibles were found "to apply with added force to childrenin grade and high schools"; educational opportunity in public schoolstwist be made available to all on equal terms.

The Egon'', I finding that segregated Schooling causes psychologi-cal harm and denies equal educational opportunities should not beconstrued as the sole basis for the decision.73 So construed, the waywould be open for proponents of the status quo to attempt to show. on

'Phe Court also .aid: "Geogntphical districts based on race are a pari-Jwhie systemof mumn.titntional elassititatbm. Of course. It is undoubtedly true tint !Ironer v. Boardof Education dealt with only an individual child's right to be admitted to a particularschool on a non-racial basis. And it Is also true, as the -.Proud Brown opinion pointed mat.that courts most bear In mind the 'personal interest' of the plaintiffs. In this sense. theBrown eases held that the law requires non.dierlinination as to the individual. not hetrcratiote. lint %%Iwo a statute bas state-abbe discriminatory effect or when a SOBoard maintains a pscishwide dkeriminatory policy or system. 111PM-4Th:titration is againstNegr-e, as a etas. Here. for mmtpl. It I. the Orleans Parish dual .. }.(run of segregatedschool distrk affecting all school children In the Parkli by rare. that. first. was a rib:-erindrat tory laslticatIott. amt. second. est:drib-lied the predicate narking it poible for thePupil l'Ineement .let to fulfill its beleind.tbrface function of preserving segregation." Boshv. Orleans Parish School Ron rd. 3018 1'.21 at 499.4 See. for eva mple. lta itsteder. %%le . f.111 riven 11 A Ilielidnient and the "Separate but limear

Doctrine. :dr Melt. I.. Rev. 20:3. 230.3-40 (1(131) : itnrhr. EduentIon. :tel.:legation and theSupreme Court-A Political Anal)sis. Pa. L. Rev. 949 (19311: tor. The pookeof Rove Ite.trietion. in Graduate Education. 1 Duke D. Jour. 133 (1981) : Note. 25 St.John's I.. !ter. 123 (1951).Profes-mr ihlicort r der r.reteried r "n1.411" the notion that the !frowndeebdon wre. "sociological" rather than "legal". Calm: .111ri-ioplence. 31 N.V.C. L. Rec.15 019313): Calm. Jurisprudence. 30 N.Y.C. 1.. Rey. 130 11933). "I would not havethe eonstitotiotlal rights of sogroos--or of other .tnerie.1110,--rest on any Miellfotindation as some of the scientific demptearations in these reeord. . . . Ileretotfon.ue gvernmnt (Miele/ int. molten:tell that he roitld deny equal protection with impunitymiles the complaining parties offered competent proof that they would sustain or hailSII taitied some permanent Ile4yelielngieal or other kind of) aanowe. The right toequal protection has not boom aillgjeetd to any such irrovlso." ('alai. Juri.prodenee.N.Y.U. 1,. Rev. 1811. 1"07. 185. 105 (1988). Professor mock loot .aid: *1110 charge thatit is lologirml* Is either a truism or it ranard--a truism if it meann that the Court.precisely like the f'imery court, and Ilke Innumerable 41tht'Y oltrt4 raving innumerableother !.sues of law. had to resolve and did resolve a question abbot social fact :canard if it means that anything like principal reliance was placed on the formally'Scientitie* authorities. which are relegated to a footnote and treated :or merely eorrobora-tory of monoton sense." Black. The ',awfulness of the Segregation Derision. 09 Yale421. 431) n.23 (1000).

Aeretance of these views is not inconsistent with the continued vitality of thepsyebologieal findings in Brown r. Indeed, several studies have reinforced those findings.The most recent is the 'United States Oilier of I:duration's "Morality of Edoent MendOpportunity '. the two%) ear :41edv anthorlied by seetion 4(12 of the Civil .bet of 1954to tove,tigoto "the lack of availability of equal educational opportunities for individualsby reason of race. color. religion, or national origin in public educational institu-tions- ." 42 U.S.C. § 2000c-1.

41

the facts. that integration may be harmful or the lesser of two evils.Indeed that narrow view of Brown 1 has led several district courtsinto error.'' We think that the judgment -must have rested on theview that racial segregation is. in principle, a denial of equality tothe minority against whom it is directed. '5 The relief Brown 11 re-quires rests on recognition of the principle that state-imposed sep-aration by race is an invidious clasiification and for that reason aloneis unconstitutional.'" Classifications based upon race are especiallysuspect, since they are "odious to a free people."" in short. compul-sory separation, apartheid, is per se discriminatory against Negroes.

A number of post-Brown per curiam decisions not involving educa-tion make it clear that the broad dimensions of the rationale are notcircumscribed by the necesity of showing harmful inequality 'to theindividual. In these cases NepToes were -separated from whites butwere afforded equal or identical facilities. Belying on Brown, theCourt ordered integration of the facility or activity.'" See also Ander-son V. Martin, 196.4, 375 U.S. 399, 02, 84 S.Ct. 454. 11 L.F.d.:241 430,433. holding that compulsory designation of a candidate's race On theballot. is unlawful. The designation placed "the power of the Statebehind a racial classification that induces racial prejudice at the polls."

Bolling V. Sharpe, 1954, 347 U.S. 497, 74 S.Ct. 693, 98 L. Ed. 884,provides further evidence of the breadth of the right recognized inBrown. There, because the case concerned the District of Colunthia,the Court had to rely on the due process clause of the Fifth Amend-ment instead of the equal protection clause of the Fourteenth Amend-ment. Gobi!r beyond any question of psychological harm or of thedenial of equal educational opportunties to the individual, the Courtconcluded that racial classifications in public education are so unrea:.on-able and arbitrary as to violate due process: 79

"Liberty under law extends to the full range of conduct whichthe individual is free to pursue. and it cannot be restricted exceptfor a proper governmental objective. Segregation in 'midi(' edu-cation, is not reasonably related to any proper Borer »mental ob-jectire, and thus it imposes on Negro children ... a burden that

74 SP.. Still v. SavannaleChatitam County Board of Education Si .Ga. 1963. 220 F.Stipp. 007. rev'd 333 F.241 33: 253 F.Si'op 54 (1965 ). ai",11 PPIlding; 253 P.8111)10, 58U1000). tIPIleal Pending. Sc.' Muntelpal Separate School Dist net v. Evers. 3('ir. 19116,857 1" .211 633.

nWpelar.h.r. 'Toward Neutral ('outitntional Law. 73 Iltv. L. litv. 1 3311939), Profe.,:or Wech.ler (.m1(11111.41 : "For me, equal the ques.tionmwl' stateenforeed m.giegation 1.. not one Of tlierlmination at all. Its human andeonstitutional dimen.ion lie entirely en:where. in the denial by the Mate of freedom to

The art fete started a vigorous (101./Itl See t 1111ritiPq ..1/1101.teli in MI11111.1%4011anal Halter. Political and Civil Right. 1623-1029 (10671. See also Kaplan. Equality in anUnequal World. 01 NW C.L. Rev. 303 (1066).

For aielleiell of the inherentlyarbitraryehe,..itieation principle agniteo the prinelpleof equality of edueatisusal 01/11Ort11111iS. see the S.11001,(.111/liillti011:11 Concept. 78 Cary. L. Rev. 364. 190-98 (19651.

"See Pollak. IDIOM Dkerimination and Judicial Integrity : A reply Profsorw.4.1,..qm.. los 1-. Ira. L. Rev. 1 (19591 : Kaplan, Segregation Litigation and the SchoolsParts 1. 'lite New Rochelle Experience 58 NW U. 1.. tier. 1. 21 (1964).

.1:oreniatstt v. United States. 1944. 323 C.S. 214. 210. 05 S. Ct. 193. 59 L. Ed. 194.7,s E.g.. Sehiro v. Bynum. 375 U.S. 895 (1904) (municipal auditoriums) :.Tolnl.nn v,

Vim:1015. 373 U.S. 01 (1983) (courtrooms) : State .athletic Comm n v. Dorsey. 305 U.S.11959) (atilletie contests) New Orleans City Park Improvement A:s..4'11 v. Detlege.

33s U.S. 34 (1938) (mobile parks and golf courses) Gayle v. Browder. 352 U.S. 903 (intra-state busses) : Holmes v. City of .1thutta. 350 U.S. 579 (1935) (municipal golf courses)3layor of Baltimore v. Dawson, 350 U.S. 877 (1955) (public beaches and hathhouseS).Muir v. 1.0131.tville Park 'Theatrical As.411. 347 U.K. 971 (1934) (munielpal amphitheater).For lower court decisions to the same effect. see cases collected in Emmerson and Huber.Political and Civil Bights in tile United States 1678 (1067).

79 See Calm. Jurisprudenee. 30 N.Y.U.L. Rev. 150, 133 (1935). Cf. .1ntleau. EttualProtection Otuside the Clause. 40 Cal. L. Rev. 262. 264 (10541 Pollak, Racial Discrimina-tion and Judicial Integrity, 108 U. Pa. L. Rec. 1, 27-28 (1959).

constitutes an arbitrary deprivation of their liberty." 347 C.S. at498. (Emphasis added.)

As in the jury exclusion cases, when the classification is not ,"reason-ably related to any proper governmental objective" equal protectionand due process merge.

If Brown has only the narrow meaning Briggs gives it, the system ofstate-sanctioned segregated schools will continue indefinitely with onlya little token desegregation. White. school boards. almost universal inthis circuit, will be able to continue to say that their constitutional dutyends when,they provide relief to the particular Negro children who, asindividuals, claim their personal right to be admitted to white schools.If the Briggs thinking should prevail, the dual system will, for allpractical purposes, lie maintained: white school officials in most keypositions at the state and county levels; Negro faculties in Negroschools, white faculties in white schools; no white children or only afew white children of way-out parents in Negro schools; a few Negroesin sonic white schools; at best, tokenism in certain school districts.

Broum's broad meaning, its important meaning. is its revitalizationot the national constitutional right the Thirteenth, Fourteenth, andFifteenth Admendments created m favor of Negroes. This is the rightof Negroes to national citizenship, their right as a class to share theprivileges and immunities only white citizens had enjoyed as a class.Brown erased Died Scott, used the Fourteenth Amendment to breathelife into the Thirteenth, and wrote -the Declaration of Independencyinto the Constitution. Freed men are free men. They are created asequal as are all other American citizens and with the same unalienablerights to life, liberty, and the pursuit of happiness. No longer "beingsof an inferior race"the Dred Scott article of faithNegroes too arepart of "the people of the United States".

A primary responsibility of federal courts is to protect nationallycreated constitutional rights. A duty c- the States is to give effect tosuch rightshere, by providing equal educational opportunities freeof any compulsion that Negroes wear a badge of slavery. The Statesowe this duty to Negroes, not just because every citizen is entitled to befree from arbitrary discrimination as a heritage of the common lawor because every citizen may look to his state for equal protection ofthe rights a state grants its citizens. As Justice Harlan clearly saw inthe Civil Rights Cases (1883), 109 U.S. 3,3 S.Ct. 18,27 L.Ed. 835, the'Wartime Amendments created an affirmative duty that the States erad-icate all relics, "badges and indicia of slavery" lest Negroes as a racesink back into "second-class" citizenship.

B. The factual situation dealt with in Ben v. School City of Garil,N.D. hid. 1963, 213 F. Supp. 819, afd 7 Cir. 1963, 324 F.2d 209, cert.den'd ',77 ES. 9-24 (1964) is not the situation the Supreme Court hadbefore it in Brown or that we deal with in this circuit. Bpown. dealtwith state-imposed segregation based on dual attendance zones. Beainvolved nonracially motivated de facto segregation in a school systembased on the neighl.hood single zone system. In Bell the plaintiffsalleged that the Gary School Board had deliberately gerrymanderedschool attendance zones to achieve a segregated school system in viola-tion of i's "duty to provide and maintain a racially integrated system"..On the .;lowing,* that the students were assigned and boundary linesdrawn based upon reasonable nonracial criteria, the court held that the

43

school board did not deliberately segregate the races: the racial balancewas attributable to geographic and housing patterns. The court ana-lyzed the problem in terms of state action rather than in terms of theNegroes right to equal educational opportunities. Finding no stateaction the court concluded that Brown did not apply. In effect, thecour held that de facto segregated neighborhood schools must be ac-cepted. At any rate, the court said, "states do not have an affirmativeduty to provide all integrated ion". The Seventh Circuit affirmed.

We must. assume that congress was Well aware of the fact. that Bellwas concerned with de facto segregated neighborhood schools-only.Notwithstanding the broad language of the opinion relating to the lackof a duty to integrate, language later frequently quoted by SenatorIfumphrey and others in the debates on the Civil Rights Act of 1901,Congress went only so far as to prohibit cross-district busing andcross-district assignment of students.

The facts, as found by the Court in Bell, favored the Gary SchoolBoard. Other courts, on very similar facts, have decided that there arealternatives to acceptance of the status quo.`° A commentator on thesubject, has fairly summed up the cases: "Using Brown as a govern-ing principle, racial imbalance caused by racially motivated condo'"is clearly invalid. When racial imbalance results fortuitously, there .a split of authority.- 81

11(114e4(ktie 1J, Sjningfleld School Committee. D. llass. 1905, 231 F.Sapp. 543, similar on the facts to Rell, holds squarely contrary toBell:

"The defendants a rgnv,.ncmi helcss, that there is no constitutionalmandate to remedy. racial imbalance. Bell v. School City of Gary,324 F.2d 209 (7th Cir. 1963). But that is not the question. The .gOstioni8 whether there is a constitutional duty to provide equaleducational opportunities for all children within the system. While

.0"The central constitutional fact Is the inadequacy of segregated education.The educational system that is thus compulsory and public afforded must deal with theinadequacy arising front adventitious segregation : it cannot accept and Indurate segregationon the ground that it is not coerced or planned but aecepted." Branhe v. Board of Educa-tion. 264 P. Stipp. at 153. See Wright. Public. School Desegregation Legal Remedies for IlePatio Segregation, 40 N.Y.C.', Rev. 2R5. 001 (1965) ; Fish. 78 liar'. 1,. Rev. 564. 009 (1965)Ia telotive approach) : Settler. School Segregation in the North and West Legal Aspeets.

$t. Louis 1 Ite, 225. 233-2:19, 275 (19031; Maslow, De Facto Public School Segregatioit,1; VIII. L. Rev. 353 (1961).Ming. It:tad Imbalance In the Public Schools, IS Vand. L. Rev. 1290, 1337 (1905).Wehl v. Board of Education of Chicago. N.D.III, 1963. 223 F.Supp. 466: Deal v. CincinnatiBoard of Education, S.D.Ohlo 1965. 2 F.Supp, 572: Lynch v. Nenston School Dist: let. N.D.(Min 1964, 229 F.Supp. 740 : Downs v. Board of Edarathat. 10 Cir. 1963.:136 F.2(1 955.cert. denied 3401'.x. 914, R5 S.Ct. 895. 13 1,.Ed. 211 800; and Sealy v. Departmet of Publieinstnetion of Penns,v1vania, 8 Cir. 1958. 252 F.2d 598. are more or less in agreement with

eases usually rely on the school board's good faith, lack of racial motivation,and the propriety of considering transportation. geography. safety. access roads. and otherinland criteria as national eases for school districting. Taking the contrary posithm are!looker v. bird of Education of Plainfield. 1965. 45 N.J. 161. 212 1.2d 1: Brambe v.limp:4 E.D.N.Y. 1962. 204 F.Supp. 150: DItteker v. Board of Palm- Mon of Manhasset.n.D..y, '964. 226 F. Simi). 208. 220 Sum). 709: Barksdale I. Springfield School COD.mittec. D.Mass. nm. 237 '.Supt 543. vacate,' for other tetanus 1 Cir. 1965.: :49 F.21 261kodcson v. Pasadena City School District. 1962. a Cal. 20 870. 31 Cal. ltei,t, 0100. :N2 P.2057S. School authorities may act to offset racial imbalance: See Addbbo v. Donovatt. 250X.Y.S. 20 178, Ord 261 N.Y.S.2d 68. 209 N.E.2d 112 (10051, err:. dried 382 1*.S for,191t11. Nee also Rnlab m v. Robin, 245 N.Y.S.2d 574. affil 250 N.Y.2t1 291, 109 N.11.211375 (1064), cert. den'd 370 P.S. 881 (10641 (Board nat "take into voliAilPilltIon the ethniccomposition of the children" before drawing the attendance lines for a Hew school) Oh,on

lloard of Etication. E.D.N.Y. 1966, 250 P. Rupp. 1000 (the Prineetou 14.111--Set lo 114.infra) Offerman Nitkoski. W.D. N.Y. 1065. 248 F.Supp. 129: Cabin v. Boa' 0 or E.iii-,t!on of New iiacn. 20 Conn. Stipp, 121, 213 12d 843 (nom) : Striopoll v. It rut tl. 250N.Y.S.2d MM. .11T'd 84. 209 N.E.2t1 123 (19651 (busing) : Moreau' v, ;Marti of1.:Oneatlon (42 N.J. 200..%.211 97 (190:11 Vetere v. Allen. 255 N.Y. 77, 'MU 1..211 174100151 (redistricting of attendance zone approved because "mill 11:11:1111, Is essential to 1sound education") > Van Illerkom v. Donovan. 1965. 15 N.Y.2d notl. 259 N.Y.S.20 825, 207N..211 503.

44

Brown -answered that question affirmatively in the context ofcoerced segregation, the constitutional factthe inadequacy ofse(rregated ediicationis the same in this case, and I so find: .TO.? is 110t to imply that tlte neighborhood school polity per Rtix micon8litutional. but that it must be abandoned or modifiedOlen it remult's in 'segregation in fort:. . I cannot accept the view in Bell that only foled segregationis incompatible with the requirements of the Fourteenth Amend-ment, nor do I find meanhigfal the ...statement Mot 111 Conxtito-tion ...doeR not refinleei»tegration. It merely forbax dlxerimlna-lion.' 324- F.2d at 213.. . . ¶ This court recognizes and reiteratesthat the problem of racial concentration is an educational. as wellas constitutional, problem and. therefore. orders the defendantsto present at plan no later than April 30. 1965. to eliminate to thefullt extent immible racial concentration in its elementary andjunior high schools within the framework of effeetive-oducationalprocedures. as guaranteed by the equal protection clause of theFourteenth Amendment to the Constitution of the United States...( Emphasis added.)

"In short. Parlosdale [does not analyze Brown] in terms of proprietyof school board action. but proceeds in terms of a right on the part ofNegro students to an equal educational opportunity. which in light ofthe Ailing in Brown that separate schools are inherently unequal. mustperforce be a right to an integrated educat iona I setting." On appeal.the First Circuit accepted the district court's tindi14,..s of fact but va-cated the order with directions to dismiss without prejudice becausethe school board. on its own initiative, had taken action identical withthe court-ordered action. 348 F.2d 261. The Court noted a differencebetween "the seeming.absolut ism" of the opinion and the lees sweepingorder "to eliminate 1.segregation1 to the fullest extent possible . . .Ivithin the framework of effective educational procedures." Takino.both opinions together. they recognize that "the state would not bepermitted to ignore the problem of defacto segregation. The holdingBeoico, unexplained by its underlying reasonum requires no morethan the decision in Bell, but when illuminated bt-y the reasoning., itpermits the result iu Bark..gbde and may require that result. s' At thevery least, as the Barbulab, eourt saw it, there is a duty to integrate inthe sense that integration is au educational goal to he given a highhigh, priority among the various considerations involved in the properadministration of a system beset with de facto segregated schools.(illituor am' Insti:o Integrate Publie,Sehools: Some .1tolielal responses and aStotote, 4I1 BUM. . I,. Rev.Tile. FIrm. (lrenit Pow:trued the court's order as tiot calling for "inn absolute rightin the Plaintiffs to have wlmt the emtrt found to be "tantamount to segregation'

1`1.1111/V141Of all costs." At the saute time, the Court said "Itather we take It to &lel mine that .racial Negri, SIIIile108 (rt.; their Nine:Mount opportunitiesa.: compared with other raees to it degree that they have a right to inst.( that thedefendants: mushier their special problem.: along nit!' all other relevant factors whenmaking relevant tieeisions." Springfield gelato! Committee r. I:art:Male. :118244.

,1;4111nor 01111 theolle supra 11140 S2.. at 414, t'empare the statement IMIIPX In Ole311Igts:1121111M.II$ statute. .111 .1e1 Proritling for the Elimination of Racial Imbalance in thePiddle Selma', I M.tsg. Atis. 411; I :it hereby tied:Iced to he the pellet' of the eonmoonn paint P. encourage. all schoolcommittees to adopt as educational objectives the promotion of racial balance and thecorrection of eNisting racial imbalance in the 'addle sehuuh. The111111i 1011 of r. vial imbalance filitlit he alt objeetive in all tiee1,10m4 Savo, big the lira a 114:or altering of school attendance lines and the selection Of nen school site..The statute was marred it month after Bo/ botote me. derided.

45

Although Brow,' points toward the existence of a duty to integrate1k' lingo se.rregated sehools."5 the holding in 'alike the hold-ing in Bed lint like the holdings in this c'irc'uit. occurred within thecontext of state-coerced segregation. The similarity of pseudo de fart°seg.repit ion in the South to actual de facto segregation in the North ismore apparent than real. Here school boards, Willy:mg the dual zoningsystem, assigned Negro teachers to Negro seltools and selected Negroneighborhoods as suitable areas in which to locate Negro schools. Ofyour.% th concentration of Negroes increased in the neighborluxid ofthe school. Cause and effect value together. In this circuit, therefore.the location of Negro schools with Negro facilities in Negro neighbor-hoods and white sehools in white neighlxirhoods cannot he describedas an unfortunate fortuity : It came into existence as state action andcontinues to exist as racial gerrymandering, made possihle by thedual syt.tem:" Segregation resulting from racially motivated gerry-mandering is properly characterized as "(10 jure" segregation. see7.0.1//or /1001.(1 of Ifelac(ction of the City of New Rochelle. S.1).N.Y.I961. 191 F. Stipp. 181.'7 The courts have had the power to deal withthis situation since POW II I. In Holland v. Bomy/ of PH/Vie instrile-/ion. of Palm Beach Count11,5 Cir. 1958, 258 14'.2d 730, although therewas no erideink. of g.errynntodering as such, the court found that theboard -maintained and enforced" a completely segregated systemby using the neighborhood plan to take advantage of racial residen-tial patterns. See obio Evan* v. Buchanan. 1962. :207 Sapp.8.20. where, in spite of a genuflexion in the direction of fieiggx. theCourt found that there was gerrymandering of school districts snper-inqaved on a pre-Bro len policy. of segregation.C. The defendants err in their contention flint the IIEW and thecourts cannot take rave into consideration in establishing staudardsfor desegregation ''The Constitution is not this color-blind."The' Constitnt:on is both color blind and color conscious. To avoidconflict with the equal protection clause. a classification that deniesa benefit. causes harm. or imposes a burden must not be based on race.In that sense, the Constitution is color blind. But the Constitution iscolor conscious to prevent discrimination being perpetuated and toundo the-effects of past discrimination. The criterion is the relevancy

.1 -Some of the Supreme Court's language in Brown can apply to thi type of segregathat as well as to that before the Court. stove this type of Imbalance may also 'generatea feeling of Icferlority as to [the NPgro it effittillitititY Mot ionYtee; t ' tor be.o Io 111 W)1 ke1) eer t.. Ire unemte.' hu,. If 0.that ate blINIS of the Brown decision was the Court's finding that separate school, weremwoostitiitIonal simply heettuse they heed a feeling of inferloritv In the Negro. one otte401-o believe that the neighborhood school must also be utteonstitutional If It tweeds thee feeling of Inferiority ' 1:anian, Segregation Litigation and the s,hools--rirt 1 Th.New Rochelle Experience 3S NW 1..1, Rey. 1. 21 (1864). "Neve-airily Implied In iltrown',1. ProcrIption of segregat wis 1)10 ploZitime a .11,,lnis r ,inntlir,) r.liteat too of tile env of NOW 1{0e1IPII, 5.1).N.Y. 1961. 191 191.ntr..1284 F.2i136. cert. ilenirti 365 U.S. 940.i1114111 V. Board of EdneatIon of Ililkboro, IS Clr. 1936. 225 F.2(1 S33. cert. doted'000 t Mgt. ('f. GomIllion V. Lightfoot. 191;0. 364 F.S. 339. SI S.Ct. 123. 3L.I.:11.24 110.

:Unaided plan approved. 193 P.Stipp. 231, ord 2 Clr. 1061. 294 F.24 39. cert. doted941) 11961). See Segregation Litigation and the Schools -Pars 1 ; TheNow Rochelle PAperienVe. NW.I' I.. Rev. 1 (19641. .111Cb011 V. Se110111 Board of the Cityof Lynchburg. \VAL Va. 1962. 20:1 F. Snpp. 701: Dowell v. titian)) Board of Ohlalonna CityPoldle Schools. W.D. Okla. 1963, 244 P.Supp. 971 *: 81141 g:1111% V. (Itarlotte-Mecklenintrgl'oard of Education. W.I).N.C. 1965. 243 F.8upp. 667. followed Totifor on the utteott-',4111119m011v ge. ""."1,11 g,r,11111eieling See Also .lockrcit v. ltavalletut City g..booi DItlt;79 Ca1,24 576. 352 P241 575; Clemons c. Roan' of ithe:Mon of 11111gboro. 0 ('ir.I :tin, 225 1.26 .533, cert. ileted 330 U.S. 106 (1936) Fuller v. Volk. 3 CIL 1965. 331 F.24n23."Taylor V. Ituard of Education of the City of New Rochelle. 1961. 191 F.Sapp.15'.. 19g, otrit 294 F,2t1 36 Kaufman. .1.).

71-326-72---4

46

of color to a legitimate governmental purpose. For example, juryvenires must represent a cross-section of the community. Straaderirest Virginia, 1880, 100 U.S. 303, i5 L. Ed. 664. The jury commis-sioners therefore must have a "conscious 'awareness of race in extin-guishing racial discrimination in jury service". Brooks r. Beto. 5 Cir.1966. :866 F.2d 1. Similarly, in voter rep.ist ration cases %ve have usedthe -freezing princiele" to justify enjoining the use of a constitu-tional statute where, in effect, the statute would perpetuate past racialdiscrimination against Negroes. United States e. Louisiana, E.D. La.1963...'25 F.Supp. 853, aff'd 1065, 380 U.S. 145, 85 S.Ct. 817, 13 L.Ed.2d817. -lilt is unrealistic to suppose that the evils of decades of flagrantrace discrimination can be overcome by purging registration rolls of\villa.. voters. . . . [U jnless there is some appropriate ,...ay.to equalizethe present with the past, flue injunctive prohibitions even in the moststringent, emphatic, mandatory terms prohibiting discrimination inthe future, continues for many years a structure committing effectualpolitical power to the already istered whites while excluding

rureo.

Negroes from this vital activity of citizenship." United State8 r. Ward,:Cir. 1065, 349 F.2d 795, 802. "An appropriate remedy ... should undothe results of past discrimination as %yell as prevent, future inequalityof treatment'. Ultited,..Sitates v. Duke, 5 Cir. 1064, 332 F.2d 759, 768. Ifthe Constitution were absolutely color-blind, consideration of racein the census and in adoption proceedings would be unconstitutional.

I sere race is relevant," because the governmental. purpose is to otterNegroes equal educational oppcOunitim The means to that end, suchas disestablishing segregation among students. distri:ai: Cie fmtterteachers equitably, eque,i',. mg facilities. selecting appropriate loca-tions for schools, and a .oiding resegregation mast necessarily bebased on race. School officials have to know the racial composition oftheir sehod populations and the racial distribution within the schooldistrict. lime Courts and HEW cannot measure officials' good faith orprogress without taking race into account. "When racial imbalanceinfects a public school system. there is simply no way to alleviate_itwithout consideration of race.... There is no constitutional right tohave an inequaliy perpetuated." Judge Soberoirs answer in Wannert. rowdy School Board of Arlington Comity. 4 Cir. 1966, 357 F.2.(1-152, 451-55, is our answer in this case :

-If a school board is constitntional 17. forbidden to institute asystem of racial segregation by the use of artificial boundarylines, it is likewise forbidden to perpetuate a system that hasbeen so instituted. It would be stultifying to hold that a boardmay not move to undo arangements artificially contrived to ef-fect, or maintain segregation, on the ground that this interference

'"The Justification for the kchool hoard's Incorporation of racial 41i:4/actions in Itscorrectional $1.1wHie is that race is a relevant characteristic. glen the school board's ourmew. which is to avid,' psychological Injury to the Negro break down soelal intr.Hers. and mitigate the academic Inadequacy Of the itobalaocell schools. Of 1111ri:(1, Itmight be argued that many of the evil, the tchool hoard attempts to eliminate when ittakes correctional steps are not etrlinitable to the race of the individuals within the Int-balanced school. but instead are attributable to their social etas, yet. certain of theseevils are uniquely related to the fact that the imbalance is a racial one namely. Moreattribtuable to the personal impact of the Imbalance on the Negro. Moreover. most NegroesIn the ghetto. and hence attending an Imbalanced school. are members of the lowest ecoauntie class, and thus the board'; remedial measures will tend to core the social Imbalance:14 well." Fire:. Ravin' Imbalance in the Public Schools: The Coo...Motional Concepts, I'SHarr. L. Rev. 544, 577-78 (1965).

Wright. Pane School Dem.gregation: Legal Remedies for De Facto Segregation, 16West. lies. L. Rev. 47k, 439 (1965).

1

7with the status quo would involve 'consideration of race.' Whenschool authorities, recognizing the historic fact that existing con-ditions are based on a design to segregate the races, act to undothese illegal conditionsespecially eonditions that have beenjudicially condemnedtheir effort is not to 1w frustrated on theground that race is not a permissible consideration. This is nott he 'consideration of Nee' which the Constitution discountenances.

.. There is no legally protected vested interest in segregation. Ifthere were. then Brown v. Board of Education and the numerousdecisions based on that MSC would be pointless. Courts %vill notsay in one breath that public school sy stems may not practicesegregation. and in the next that they may do nothing to eliminateit.

D. Under Brigg'N blessing. school boards throughout this circuit firstdeclined to take any affirmative action that might be considered a movetoward integration. Later. they embraced the Pupil Placement Laws aslikely to lead to ILO more than it little token desegregation. Now theyturn to freedom of choice plans supervised by the district courts. Asthe defendants construe and administer these plans, without the aidof HEW standards there is little prospect of the plans' ever undoingpast discrimination or of coming close to the goal of equal educationaloppoitunities. Moreover. freedom of choice. as now administered, nec-essarily promotes resegregation. The only relief approaching adequacyis the conversion of the still-functioning...dual system to a unitary, non-racial systemlock. stock. and barrel.

If this process lw "integration" according to the 1955 Braggy court.so be it. In 1966 this remedy is the relief commanded by Brown. theConstitution, the Past, the Present, and the wavy fore-image of theFuture.

IV.

We turn now to the specific provisions of the Civil Rights Act onwhich the defendants rely to show that ITEW violates the Congres-sional intent. These provisions are the amendments to Title IV and VTadded in the Senate. The legislative history of these amendments issparse and less a uthoritath'e than usual bemuse. of the lack of com-mittee reports an the amended version of th, bill.

A. Section 401(b) defines desegregation :

"'Desegregation' means the assignment of students to publicschools and within such schools without regard to their race, color.religion. or national origin. but 'desegregation' shall not mean theassignment of students to public schools in order to overcome raeia Iimbalance."

The affirmative portion of this definition, down to the "but" clause.describes the assignment provision necessary in a plan for conversionof a de jure dual system to a unitary. integrated system. The negativeportion, starting, with, "but", excludes assignment to overcome raeialimbalance. that is. acts to overcome de facto segregation. As used inthe Act. therefore. "desegregation" refers only to the disestablishmentof segregation in de jure segregated schools. Even if a broader meaningshould be given to "assignment . . . to overcome racial imbalance".Section 401 would not, mean that such assignments are unlawful :

"The intent of the statute is that no funds and no technicalassistance will be given by the United States Commissioner ofEducation with respect to plans for the assignment of students to

4S

pu ll t rliool In order to oVere)i i ie rueja I nil in l:i ii re. Tlitt :ituil (' ii iflV lint K' jut ('Ii )it'1 ('( I tci fl iei ii t lint Slid I ;issugil ii iei itis iIIe!iuI oi tluiut re:isoivablc' iiitt'tnit ion efforts ;i re ii rhit ra rror uiiulawfuuL '

Tli' I rlu ii ut l( Iii 8!18 ii ust assugui iiu'nt of st 11(1(1 its to ovi' rca ii ie iii ii Ki I -

8ut: was :tdtlett as an amenilinent durnig the debates ni (he I IOUS&' tofi eli le V(' t lie sn w "''511 It a ( Iii' a lit i-I uiising

I)rOVIsiOi I ii Seet iou 4( ).

Soiir of I lie dillio'r fr iii uiuidt'it;iiidiiug t lie .et 1111(1 its legislat ire his-tory :1 rises frau i a' stat nb's use of t lie inidt'ti i nd tt'ii i ......ucla I liii-

1 ni 1:1net'. Ii is dt':i r however front the lieu ii jugs ii jul debates t lint('nuigress t'tu:itetI the tt'riiu. as do tIn' ouiunt'niutors ritli "oh' faetos('gregetn)iI that is. non-nieially nuotivateci segregation iii a 5(11001 -.

I ieoi on a single iu'ighborbood school for all vhihlreu in aolelinti I )le ii reii."- Tlu us. Congressmn ii Wil I lain ('raiiier who offeredtIn' aiiiendiiit'nt. was concerned that the bill as originally proposedii iiglit a iithioih'.e the goveriiineiut to reqii ire lmssiiug to overcoiiie (IC

t:rto segregation. In explaining the anit'nolineut. lie said"l;i the hen iliugs before the committee I ni ised quest iouis on

'racial mimi laiice and in the siuhcouiiniittee we had lengthy dis.

(IISSiOUS III rt'feri'nce to Iiavmg these \VOId5 sti,ekeu in the title.as it then consisted. and to strike out tIn' words 'piwiiil hnliFiiui"I)1lse(l by the adininistnition. ¶ The purpose is to ,nereit (lfli/en b1aiue of eOIU/IvlSh)1(ai 1l(/)tilhIee 01 fl/)/I10 nil of the eoli-

ee/)t of 'Je fato' .w,ieyaton or to include in the definition of'desegregat mu, bmilmnimhy of .,m'hooi iiftpi(luimei' /J.'/ limo 1;llf t a-mlmitt (ia"l'(PR l(li00/ (1114t1ld"t llime to lenel off pereeitaqm' lrhene oimel(Wl.' OlitWe;(/h8

'I!ie neiglilioi4iuod .S('lIOOl svsteiui is rooted deeply in Ainericaii ciii-tiire. Whether its eoiitiniiel USC S coiistitu(iontth VhOIi it leads to

.,i,iubt.,, . Piin.,yu n. 2 .% M. julv.2,i :is$. iu x.Y.s.2i1 i . i s. u fl,.t,t. i rnu i.n-'i. 10 .Y.thi ti in. i;i 65. 209 . iiI I I (1 96 I ct'rt. ii'ttii. IS 1LS. 9O

o 1n.;t.I\.r .0 liijiii.. "itiieiu I Ii liliiitie.." u nh "ii,. rudy ,.lriI I li,ii" u ri ,.11oIlNliIi,llsiti I r..frr I.. :1 sIt ii:, huh lVtH.r.. ii eiiui.i i 11r1911.nlI vii lit ciihlit.ip,.i.,l '.( N'.ri, sI viui'tit,not il II rdslhl t if stilt' iiit ii.li 11111 ru thir us t1i. i.tiil lruiItitt yf s,gri:i t...l )ii.lt5Ihi ii nitu.1tur.ju. t ,, I iii. ii'liiiiiiirju..,.i i.iiiiiiti jun11." caii mi'r u uii ( i,iiii. 46 linstoti U. I.. i:e. 45. 461 91:4:1. III,. term p 0litiu tin ii" j,as t,'ei,,ni. ,leeipt i.,j us ili.miiutilic tl,.lm'rlm,.I.lII iumi.t l

.lI t.I s.pu rut liuti if lii.. ruie.s us uij.1.in.i.ii to ij,. Jun. ..rput jon" il,'tiotltii ,islih,i.rati. .ej)fl.rut ui' Iii.. ruens tuy iiW. $3 y. . .I.rdi.'l j..hi k nne.uti.t It lit 11411:4 I. uiiii Is :4 civil ruutici 11,11 IIIti5 I )lio St iiul..lit of 'ii.. iIr1iiI4lil ii i'i'il,tiui intl. "Tit.. I 11111 tb furli, ircat t Inn ticikoslii.. ru,iii I iiit.:iits ii,.iii si.b.., 1 ii i,,,,..i i . . . II'' is. 1 I Pi. N.irl luerhi ii,tll,tert.:I rt of t.,i"1 ,h,.l II,I ''iiIii' .1 Ii. ( "'w iii .......... lldll hi,. I i'rni ,'I,.tiu.j s uci lit V :1,1,1 98 rj i.5iIii4hlzl'I. I i .ciiii I lIhlIlli', l.ii. Is (n.ullu.tit '. i:itsl.ql (:ict.i ,.in.::i I limit Iii slli$8$t t icit I tier 'nls.t n. h,l.vt:it Ivci1vu.liliii t euiin.t ii,. fin, Ill)." VI", i{it.4is1 I hIlt' J1l lire iii I iso luiltili,.

'I'I,u 'nIl-I 11111 In,u:ii Ciili,'i'tuts. 7$ un rc, I.. !t.'c.5.'.4. Sulo; :i.i , n.:s i , A lifit lIlt tin-i'. ''A'. ill,in,' ,i"i'',rlt, lunill. raci:d illiiu.i In lIe.' vt1I I.. 1i.Nl iii .li.ttuu:n fi,ninii lullS ru .1:11.'',t,'t l..i I It I hi. jill' Silliliuis". il lli, jttiel'. i tittI.:iI:i lidl' Iii liii' P111,11.' 5.'ji,uu,j$:('illi,t Itli''I ..... I 11! lili'i$Iiu,i em lilt .1 niil,'j:i I tti'5lliilll'. 15 "Ci liii. 1.. Its'. 1 2t14) 12141 ii 11015 I.

fle fau'uu i'riut Inn lids ii.'eilhpli. Ii'.' ti.unt wu ,r uji.,'rII.It,.. liii' .' lt lil it ii' 111111 illli.,nt ii.ui'ii 1' Ii" . . . :i ,.i'IIiu.ui ,. 't,'III ,VIitl'il is llvi ri:i.ii ii :t r.'r,,' iiitli jlniljio rt loti 'ui Neetriunsof t ,.3,onj s 111111 Ow or llilli' Iii iutli..n$. liii t Iii whIch I ills dIvl rut liii, bus tu kent.tii.,. w)t)i,nit tboi',llnIuli3on ut ;' tu I.' 1:1w 'in olflclultx a lilllullluI ouuiii',v nitni nilut 111:11ii4 wimi I,. ,'liII,tri.n II,' ju'aeeii ill siI,;i nut,' seiui,, is." Ii 11111111 :1 'lii i'i hi.slls.. I)eu'ttno":i.Ilu.'u 'if t hi' Se)i,wul I 'ti,. j'ri'se..t L1.nli Sit 11111 ioe. 1 liilfl L. ibv. 0N 221 oI 9f4 I. Si'.. itt-i.

Ca nt.r, iii. V;i,'tii Sl.gn,.g:l(Iiull, 10 Iti's. L fli'V. 502. 505 (19651..m'.,. rut b'.i"ie of I be mietirjiiuoniio,ui seiiooi O'stdhil IS tiiult ti,i. cliisui S,'n%.i'S as I ito

ru nu' t .11l0, noeni'nt Ion:ui, ullil ellit final i"llten (if liii. l'011lflllli. t,, Si.. T1:i il,i'hl. Till' itol,. (ifV.'1.,. '.ur $4 Nut ii. fl, illi' ft%. 652. 654 (19591. Pro;nn..11t of I ito Vli'w I tiflt llu'IedI,or.iioi.ui Sdjlu,i,15 lilu t'df'fllllf sti rai'l:iii c Ituislia lleeiI :15 to nellil In.' ufllrtuu t j% corn.'et I ci' :li't tollisiilll I lull ....... iu' lllilil'nIi.ii;l V lii'kzIllsunil,,ui,I ciiOOi ('lilitlOt i.e (qIm:i toul With till' i'Ohlllli(lll M'jifluiiut ,e 'ori'iu4 nt iie In t ten i'.,llSl I tiltis .%llIdnlea's lurch of Ii ,3('lll(uenlIt Ic Illuitit Ut lollu sjhhiZlt'St rut..' fir,' son%'ltic ci iinteno..liootii, ('otIlhilil miity iii tviiieil ('illi,Irdll nf cu niu'ul racIal. dlii mmnai.noiiliolls. 81111 soeto','ci,lconue ba('kUr,lIlftli,. W('r( t.ltlltilt t,u.tli,'t'..-.t III' rovrniuiii i lli,.ii thiiP''t lidc:llhi.ft Of nljlui metal Zulu uoeln.u'cohh,,IhlIc 0.tndlt ifle:m I ion. iink' a lid cia,. S liulia nit.jins iui'4'Oluli' tiZ. tItlist S:tiIdllt t n,'sdhIt-ul:l IleigilhuOniiOosl cicuruetenist i(. 9:1 ttlelii:lniy Ill iini,afla ni.:u S. Tile 11(1 ciihonliouu,i ehooi. widcii elleotlurlassis :1 Iioiluogt'luec,us racIal 8 lId so(iO.defiflohlIll' Znolljuin. as is t nte today. Is 1110 (.% chIll it uitsi of t hi' ColhIhlInti seliuiOi jIdnIt,,10."Canter. fle Facto School Segnegatlolu : .%n ExaminatIon of tile l,ugai atld Coml,itiltioll:iIQuestions Presented 10 West lIes. 1. It.v. 502, 507 (1005. See also Sedier, Si.liool Sgre.

atIoIl in the North 81111 Vest: I.i'.ii .%spects. 7 St. Louis U.LJ. 228, 252-50 (19h$).

49

'grossly bid :danced schools is a quest ion someday to be answered by I lieSupreme court, but that quest um is not present in any of the cases be-fore this ( 'mut .1s noted In the previous section of this opinion, wehave titany instances of a heavy concentration of Negroes or whites incertain areas. but always that type of imbalance has l)ten superinq tosedon total school seitaration. And always the separation origitmlly wasracially motivated 1111(1 SalletiOned by low in a system based on t tettschools within a neighborhood or overlapping neighborlmods. eachschool serving a different race. Tlw situations have some similarity lintthey have different origins, create different problems, and require f-

ferent corrective action."'In the 1904 Act (and again in 1960 during consideration of umend-

mitts to the Elementary and Secondary Education Act of 19(;) Con-gress, within the context of debates on aid to de facto segregatedschools declined to decide just what should he done about hub:dancedneighborhood schools."'" The legislative solution, if there is one to thisproblem, will require 31 carefully conceived and thoroughly debatedcomprehensive statute. In the 1904 Act Congress simply directed thatthe federal assistance provided in Title IV. 4034 was not to be usedfor developing plans tO assign pupils to overcome racial imbalance.'-Similarly, Congress withhehl authorizing. the Attorney General, inschool &segregation actions, to ask for a court. order carting forImsitt!, pnpils from one school to :mother to "achieve a 111611ha la nee"."

B. Section 407(a) (2) of Title IV authorizing the Attorney Generalto file suit to desegregate,. contains the "anti-busing" proviso :

4... . nothing herein shall empower any official or court of the

United States to issne any order seeking to achieve it 1116311 b11111IPTin any school by mini ring the transportation of pupils or studentsfront one school to another or one Alum' district to :mot her in oilierto achieve such racial compliance with constitutional standards:

First. it should lie noted that the prohibition applies only to trans.portation: and only to transportation across :zehool lines to achieveracial balance. The fundshing of transportation as part of a freedomof choice plan is not prohibited. Second. the equitable powers of thecourts exist independently of the Civil Bights Act of 1904. It is notcontended in the instant cases that the Act eon ferret! new authority

"liar sl.1111 Idea of the number and complexity of the administrative ;million. school°Metal. face to dealing with de (delft segregathol: Nee Kaplan. um:rev:01011 1.111/r10.11 Oldthe Nei IS !'art : The General Northern Problem. :.g NW. I'J.. lbw, 157. Istl-141110:11, Prof.sor Wanton modes: at length exeerpts (non the te4initoty In

tineAtion of providing .gleelal, en r.tnarked federal fond. for school 411st:dots that%%ere tram: to correct imitalanced neighborhood schools came lip again in eounetion withrho 11106 111111101111tIts to OW Eillielitar and et:nil:try Education .let of 11105. The lIonseeommittee wconitriendedspeelal priority fur apPlIe.itions tinder '1111.- III of the .let fromlocal rtiti.01 disti.,k which sought help with problems of oyererowldlum oboleseenee. orracial itabalance.'fito House withdrew Priority for dealing with problems of racial imbalanceand added an attuoultacnt to Section 004 of the .1et to the effect den nothlug In tho .letbe cot:stiled to "require the assignment or transportation of student. or teacher In orderto overcome racial Inthalattec." The Senate went along with both actions. The debate make4clear Wit Congress MIN Oiler again talking about metal imbala nee . tn the contet of do factonot do lure. school segregation. See partleularly emigre-Anna! liecord. 4/other U. Ifign.1. 24:1:IR-9: 21:41 a. See also 1066 rm. eagle connret,tonal and Administrative NewQ.No. 11, hn, .71019-90, for language in Itotem committee report recommending the priorityposition of appileatimi. to deal a Ith racial hithalanee.

" Vongressma it 4'r:tomes itmenthoent."This restriction appear. In 1407 of the .t et, In Its eontevt it Qeent. clearI to restrict

the ,'Mon General to remtesting only .tack relief as is constitothemily ...lapelled. In otherwords. the .let I, oat to be construed a. authorizing a statutory flute to rednee habalaneoby layAttit, certainly tine language of 1 407 dote: not ef.II for a rontruetion that prohibita court order directing the school board abandon racially ilkerimIttotory practiee.: whichviolate the Ponstituthm. Nor does it sugge.:t that the .%ttorney General k precluded fromrtplesting (mart orderA to end racial Imbal.the rosolting from tineonstittitional practiceq.

lap j au, lippmagridp latIon! pun ;10,1dpimilli,, il; ifm <Ain lowiag ay; I! laHls!i) looti.,s I: Jo Slmilm a to alum

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09.

51

that there is a racial imbalance per se is not s.-omethinr- which isunconstitutional. 'flint is why we have atteMpted to elan fy it withthe language of Sectioe 4." (Emphasis added.)

C. Section 601 states the general purpose of Title VI of the Act :No person in the United States shall, on the groand of nice,

color, or national origin. be excluded from participation in. bedenied the benefit.; of, or be subjected to discrimination under anyprogram or activity receiving Federal financial assistance." (Em-phasis added.)

This is a clear congressional statement. that racial discriminationagainst the beneficiaries of federal assistance is unlawful. Childrenattending schools which receive federal assistance are of course amongthe beneficiaries. In the House. Congressman Celler explained.

"The legality is based on the general power of Congre to applyreasonable, conditions ... ¶In general. it seems rather anomalousthat the Federal Government should aid and abet discriminationon the basis of race, color or national origin by granting moneyand other kinds of financial aid. It seems rather shocking. more-over. that while we have on the one hand the 14th amendment,which is supposed to do away with discrimination since it pro-vides for equal protection of the laws, on the other hand. we havethe Federal Government aiding and abetting those who persist inpracticing racial discrimination."

In the Senate, Senator Javits, au assistant floormanager, expressedconcern as to the clarity of the statement of policy :

"I ask the Senator whether we now have a clear 'indent:. ndingthat if title IV shall be enacted as it .s now proposed. the expressand clear policy of Congress against aiding discrimination willprevail . . ."

Senator Ilimiphrey answered:"Some Federal agenciis appear to have been reluctant to act inthis area. Title VI will require them to act. Its enactment will thusserve to insure uniformity and permanence to the nondiscrimina-tion policy."

D. Section 604 of the Act, 4=2 2000d-3 is the section the de-fendants principally rely upon and the section most misunderstood:'It provides:

"Nailing contained in this title shall be construed to authorizeaction under this title by any department or agency with re-ipectto ""!/ employmeot practice of any em ',Zoller, employment agency.or labor organization except where a primary objective of theFederal financial assistance is to provide employment:: (Empha-sis added.)

The defendants contend that this section bars any action requiringdesegregation of facilities and school personnel.

Section 604 was not a pant of the original House bill. SenatorHumphrey. while introducing the Act explained: Trhei Commis-sioner might also be justified in requiring elimination of racial dis-elimination in employment or assignment of teachers. at least wheresite!' discrimination a treci ed the educational opportunities of st ildents.See 11171.riOlt C. Botriil of Poblir nxt portion of Dom, Omni y. :") Cir.1064, 62!;14%.2(1 G162* 110 Cong. Rcr. p. 6::15. That was in March 1964.

0 Sri, Ilenellgv: Before the Committee on Rule.. IlonQe of Itopnowtototiveg. S9 Corm 2tolSo..... on 11. Rep. S21t. Sept. 1966. 24-21;.37-40.

In June 191, in explaining the amemintents. Senator II tunphrey said.Thi7 provision is in line with the provisions of section 692 "' and:.:ercvs to svell out more precisely the declared scope of nicer:wof the title... In the same speech he stated (11 ('.R. 12714) : -We havemade no changes of substance in Title L. This explanation plainlyindicates that the amendment was not intended as a statutory barto faculty integration in schools receiving federal aid.

I however. in the interval between these two explanations the Attor-ney ieneral. in response to it letter front Senator Cooper. stated thatSection fin2 would tint apply to federally aided employers who dis-criminated in employment pradires: "Title VI is limited ... to dis-crimination against the beneficiaries of federal assistance programs.. . . Where. however. employees are the intended beneficiaries of aprogram. Title VI would apply-.'" 11e gave as an example acceleratedpublic works programs. It was after the receipt of the AttorneyGeneral's letter that the amended Senate bill was parsed. The schotilboards argue therefore that Section f;a1 was enacted. because of theAttorney General's interpretation. to exclude interference with em-ployment practices of schools.

in its broadest application this argnment would allow racial dis-crimination in the lining. discharge. and assignment of teachers. Incits narrowest application this argument would allow discriminationin hiring and discharging but not in assigning teachers. as inexplicableanomaly.' There is no merit to this argument. Section ih04 and theAttorney General's letter are not inconsistent. since tinder Section t;o1it is the school children. not the teachers (employees). who are theprimary beneficiaries of federal assistance to public, schools. Facultym.,teration is essential to student desegregation. To the extent thatteacher discrimination jeopardizes the success of desegirgation. it isunlawful wholly aside from its effect upon individual teachers.

After Section 601 was proposed. additional clarifying language wassurested to make it clear that. discrimination in certain employer-employee relationsliips. not affecting the intended beneficiaries ofpro&ram..-would be excluded from the reach of the statute. See Hear-ings. H.R. Coca. on Rules. 11.1i. 7152. 88th ('ong.. d Sess. (1904).pp. :14. 220: 11n C.R. 9544-10 (Senator Ifumphrev). For example.there was a serious question as to whether the bill would forbid afanner who was receivin:, benefits under the Agricultural AdjustmentAct from discriminant:, upon the basis of race in the selection of hisemployees. I lea rinrs. Comm. on Rules. 1I.R. 7151 SS Cong.,?(ISess.. 1964. p. 94. 110 C.R. 0545 (Senator Humphrey).'The additionof Section WI to the bill as original' proposed clearly excluded theapplieation of the Act to this type of situation. ('oiuzress did not. ofcourse. intend to provide a forum for t he relief of individualteachers who might. be discriminatorily discharged: Congress wasinterested in a general requirement essential to interests of the programas :1 whole. ""

' See footnote Ift.itNA Operation.: 3fammi. The Civil melts Art of 196-1. p.5... 1)1.$11,:r."...:1 11.11 of Public Sodom! Articitles. lima t.. Let'. I I, an(1 -nn

Pl.:4011110r ilomphrey explained: Tim -elimination of racial disrrimitm lion in employmost or 8.edzItittnt of taritrrx oot turait that Title '1.1 would nuthothe n fedrdt°Mehl to pr.-writ.- Ip..rtienlarI pupil motiatomonta. or to mdert n ipartitolar fartttc a.optsmnts of lite hill hare sozarstod. only authority roncerred would he authority to,pletrt, with tb.- approni of the Pre:dolma. a gefientl n,Iluirom.tot that the local qehmst:vitt ifort:S refrain frosts rneini discrimination ht treatment of pupil' aml tealter; ..." I It)row:. her. 1:51:1.

53

Collaterally to their argunteCtt on Section 604. the defendants citeSection 701 (b) of Title VII, covering Equal Employment Oppor-tunities. which specifically excepts a "state or political subdivisionthereof' This section has no application to schools. Section 701( b).defines -employer- as "a person engaged in an industry affecting coin-

:-merce who has twenty-five or more employeesSection 604 was never intended as a limitation on desepTegation

of schools. If the defendants' view of Section 604 were correct thepurposes of the statute would be frustrated. for one of the keys todesegreTat ion is integration of faculty. As lone, as a school has a Negrofaculty it will always have a Negro stude body. As the District('ourt for the 'Western District of Virginia put it in Brown ,r.Cooloty.School Board of Frederirk Coonty,1965, 245 F. Supp. 549, 560:

"[Ti he presence of a H Negro teachers in a school attended solelyby Negro pupils in the past. denotes that school a 'colored school'lust as certainly as if the words were printed acro:-.'. its entrancein six -inch letters.'

As far as possible federal courts ninstearry out congressional policy.But we must not overlook the fact that "we deal here with constitu-tional rights and not with those established by statute". "r1 The rir-htof Negro students to he free from racial discrimination in the form ofa segregated faculty is part of their broader right to equal educationalopportunities. The "mandate of Brown . . . forbids the [discrimina-tory( consideration of race in faculty selection just as it forbids it inpupil placement." ehandow r. IlenilrAvonnille City Board of Mom-a-t:mi.-fell% 1966.364 F.2d 159.

In Brown II the Supreme Conrt specifically referred to the reallwa-tion of staff as one of the reasons p.rmittim, desepTer-ation "with alldeliberate speed". "In deterininp, the additional time necessary .courts may consider problems related to administration. arisin!,from ... per:amid. . (Emphasis added.) 849 V.S. at 301. For tenyears. however. this Conrt and other circuit courts had approveddistrict marts' postponher healinr-s on faculty desegmration. Bradlpyr.Srboo7 Board of the eily Of Mel/mood. 101i5. 382 U. S. 103. fib S.Ct.22-1. 15 1-..-Ed.2d 1s7 put an end to this practice. In Braelley the Su-preme Court held that faculty segregation bad a direct impart op des:et-regat ion plans. The mirt mum:11.11y mmanded the case to the dis-trict court holding* that it was improper for that (-(flirt to approve adesegregation plan without considerinr. at a full evidentiary lieuthe impart of faeult alloration on a racial basis. The (ono- 5:0(1."[There is1 no merit to the suggest ion that relation between facultyallocation on an alleged racial basis and the adeonney of the dese.rrr-ation ohms a re enfi rely speenlat ire." Moreover. "Dela vs in desegre,ra -t ion of school systems are no longer tolerable." 352 U.S. at 10::. In/?,/ficrs P. Awl. 1965. 352 V.5. 19S, 200. 86 lift. 358. 15 L.F.(0(.1 205.the Supreme Court held that Negro students in grades not vet deseg-

rettated were ent it led to nil immediate transfer to a white high school.They "nlainly had standing" to sue on two theories: (1) "that rorio1ono,of;on of fornify denies, Men) equality of educed/moil opporfmth'Y

"="Ainifli v. Mord of Edimition of 3torrilton. R Or. HMG. ral5 T- 2.l 77n. 7c4." nu. ev,:tville Tooekett v. 1:41.1rd of 1-51:teatIott Niiicogcc r"ultIv t- 1vist-r.2.1 225. 229: rallimtn 191:3, p2,1 i!, Itroilly v. S. hootii -ird of Ow City of Richmond. 4 rig. 1955. 345 F.211 :110.:50.

54

without regard to segregation of pupils. and (2) that it renders in-adequate an otherwise constitutional pupil desegregation plan soonto be applied to their grades." In .C7nyleton II this Court. relying onBradley. held that it was "essential- for the Jackson schools to makean "adequate start toward elimination of race as a basis for the em-ployment and allocation of teachers. administrators and other per-sonnel." 355 F.2d at 870.

In a recent decision of the Eighth Circuit. riork r. Board of Eduea-tion of Little Rork School District. No. 18.368. December 15. 1966. theCourt required a "positive program aimed at ending in the near futurethe segregation of the teaching and operating sta fr. The Court stated :"We agree that faculty segregation encourages pupil segregation andis detrimental to achieving a constitutionally required non -raciallyoperated school system. It is clear that the Board may not continue tooperate a segregated teaching staff.... It. is also clear that the time fordelay is past. The desegregation of the teaching staff should havebegun many years ago. A this point the Board is going to have to takeaccelerated and positive action to end discriminatory practices in staffassignment and recruitment." -

In Braxton .v. Board of Public In8tructio» of Duval Con»ty. 1964,326 F.2d 616. 620. cert. denied 377 F.S. 924. the case cited by SenatorHumphrey. this Court affirmed an order of the district court prohibit-ing assignment of "teachers and other peozo»nel . on a racially segre-!rated basis." Tn Smith v. Romd of Edueatio» ofMorrilto». 8 Cir. 1966,:165 F.2.(1 770. 778, the Court said :

'It is our firm conclusion that the reach of the Brown decisions,although they specifically concerned only pupil discrimination,clearly extends to the proscription of the employment and as-sianment of public school teachers on a racial basis. Cf. UnitedPublic Workers v. Mitchell, 330 V. S. 75. 100 (1947) : Wieman y.Updegraff, 844 V. S. 183. 191-192 (1952). See Colorado Anti-Discrimination COMM.11 v. Continental Air Lines, Inc., 372714. 721 (1963). This is particularly evident from the SupremeCourt's positive indications that nondiscriminatory allocation offaculty is indispensable to the validity of a desegregation plan.Bradley v. School Board of the City of Richmond. supra : Rogersv. Paul. supra. This court has already said, 'Such discriminationrfailure to integrate the teaching staff] is proscribed by Brownand also the Civil Rights Act of 1964 and the regulations promul-(rated thereunder'. Kemp v. Beasley. supra. p. 22 of 352 F.2d."

Tn Wheeler r. Durham, City Ronwl of Edneatio». 4 Cir. 1966. 363 F.2d73°,. 740 the Court stated: "We read Iftraylle.y1 as authority for theproposition that removal of race considerations from faculty selectionand allocation is. as a matter of law; an inseparable and indispensablecommand within the abolition of pupil segregation in public schoolsas propminced in Resign 1'. hoard of Education. 847 V.S. -183. Trence noproof of the relationship of faculty allocation and pupil assignmentwas required here. The only factual issue is whether nice was a ractorentering into the employment and placement. of teachers." In Wrightr. County School Board of Creeymrille County. E.D. Va. 1066, 91)2R Stipp. .378.184. holding that a faculty desegregation provision ap-proved by the Commissioner of Education was not. sufficient. the courtsaid:

35

"The primarily responsibility for the selection of means to achieveemployment and assignment of staff cm a nonracial 18r-is rests withthe school board '-;everal principles must he observed by theboard. Token assignments will not suffice. The elimination of a ra-cial basis for the. employment and assignment of staff must beachieved at the earliest practicable date. The plan -must containwell defined procedures which will be put into effect on definitedates. The board will be allowed ninety clays to submit amend-ments to its plan dealing with staff encployment and assignmentpractices.-

In Kier r. Comity gehool Bool1 of A ofporta Coonty.W.D. Va. 1966.249 F. Stipp. 239. 247. the court held that free choice plans requirefaculty integration:

"Freedom of choice. in other words. does not mean a choice betweena dearly delineated 'Negro school! (having an all-Negro faculty811(1 staff) and a 'white school' ( with all-white faculty and statI).School authorities who have heretofore operated dual school sys-tems for Negroes and whites must assume the duty of eliminatingthe effects of dualism before a freedom of choice plan can be su-perimposed upon the pre-existing situation and approved as afinal plan of desegregation. It is not enough to open the previous-ly all-white schools to Negro students who desire to go there whileall-Negro schools continue to be maintained as such. The dutyrests with the School Board to overcome the discrimination of thepast. and the long-established image of the 'Negro school' can beovercome under freedom of choice only by the presence of anintegrated faculty."

See also Dowell r, nCrhool Board of Oklahoma City Magi(' Rrhook.D . Okla . 1965. 244 F. Stipp. 971. 977. and Franklin r: C °only oS 'eh ool

Board of (Tiles County. 4 Cir. 1966, 36(1 F.2d 325.We cannot, _impute to Congress an intention to repudiate Senator

Humphrey's explanation of Section 604 and to change the substance ofTitle. VI. tearing the vitals from the statutory objective. Inteationof fa eulty is indispensable to the success of desegregation plan. Norcan we impute to Conaress the intention to license, unconstitutionally.discrimination in the employment and assignment of teachers, a con-spicuous badge of de jure segregated schools."'

E. As we construe the Act and its legislative history, epseciallv thesponsors' reliance on Bell. Congress. because of its hands-off attitudeon bona fide neighborhood school ssytems, qualified its broad policy ofnondiscrimination by precluding IIEW's requiring the bussing of hil-dren across distriet lines or requiring compulsory placement of chil-den in schools to strike a balance when the imbalance results from defacto. that is, non - racially motivated segregation, As CongressmanCramer said, "De facto segregation is racial imbalance". But then, ix

us Chambers v. Henderson% ille City Board of Education, 4 Cir. 1966, 364 r.2(1 189. 192.Involved the problem of surplus Negro teachers who lost their jobs when nn n11 NPCro schoolwas abolished. The School Bonrd treated them ns new npplicants. The court held that thiswas discriminatory. Speaking for the mniority. .Tudge Bell said : "First. the mandate ofBrown v. Board of Ednention. 347 U.S. 483 (19341. forbids the ennsideration of race infaculty selection Just as it forbids it in pupil *cement. See Wheeler v. DurImm City Boardof EduentIon. 346 F.211 765, 773 (4 Cir. 1963). Thus the reduction in the number of Negropupils did not Justify a corresponding reduction In the number of Soar() tenchers. Franklinv. County Board of (311PC County. :160 F.2(1 325 (4 Cir. 1986). Second. the Negro schoolteachers were public employees who could not he discriminated agnInst on account of thirrace with respect to their retention in the system. Johnson v. Branch, 364 F.2(1 177, (4 Cir.19M). ."

56

notlilng in the language of the :let or in the legislatire history thattamales eoereeti re arts to desegregate or to integrate a dual sehool sys-tem initially based On de Jure segregation with gets to briny about aracial balance in a system based on bona fide neighborhood schools.

Congress recognized that I I 14,'W's requirements for qualifying forfinancial assistance are one thing and the courts const mit-mai andjudicial responsibilities are something else again. The Act states, there-fore. that it did not enlarge the courts' existing poweis to ensure com-pliance with constitutional standards. But neithep did it. reduce thecourts' power'.

V.

The. HEW Guidelines agree with decisions of this circuit and of thesimilarly situated Fourth and Eighth Circuits. And they stay withinthe Congression«I mandate. There is no cross-district; or cross-townbussing requirement. There is no provision let-wiring school authoritiesto place white children in Negro schools or Negro children in whiteschools for the purpose of striking a racial balance in ,a school orschool district proportionate to the racial population of the communityor school district.'°7. The provision referring to percentages is a generalrule of thumb or objective administrative 12-nide for measuring progressin desegregation rather than a firm requirement that must be met."'"See footnotes 105 and lOG Good faith in compliance should be meas-ured by performance, not promises.

r'r'fhe present Commiseiosser of Education. Harold Ilowe 11. In a cirnaressional hearingft, :

-rite guideline., do not mention and du mot 1 (I.nin rarial Italattee' or the correc-tion of racial inbalattee.' Nor bare we in the administration of our 0141ga:ions underTitle VI .ought to establish *racial balance.' They deal only with desegregation plansdesigned to eliminate the thsal echoot systems for ithltes and Negruee, system beingoperated 111 violation of the 1914 Supreme Court ruling. . . Racial Inthalanee certainlymeans the notion of trying to est:Mikis eon"' proportion of )osttigsters that aunt 1 e 1s1enell :'oil evert school. We are not about suet: all enterprise.- We me trying to givethe effect of free choices to enter into, or to allow 0(... hi havingenter into whatever school they may wish to attend. I do not believe that free choiceplans were veer 1111..1111Pd by the (vinyls or by IN to be an arrangement whereby the dualM.1101 2.3 Nteln eoni,l continue without support of law. lint rather an art angel:rent bywhich over a period of time we would gradually have one echoed system rather Omittwo sont.ste reltool systems. I do not er t* chat we are engaged ill any way iu elai'

procedures for balattee." Ilcarisigs before the Committee egi Ilitem8901 21111 011 H. 1Tes, _lie Sept. 29 -90. MIL p. 22- 3.1.

See also footnote lot;.in. to a letter addressed to Members of Congress and Governors. dated April

and given wide publicity in the tires., .Tobn \V. Gardner. Secretary of Health. I.:lineationand Welfare explained the purpose of the pet:Pitt:Mee :

"The second area of roneern involves the perelltile;e:4 mrutioued to the guideline..Some have contended that this portion of the gnitlelities imposes a formula of *racialbalairce."ffitis eontention tnisctweives the purpose of the percentages. The pre-galling liwt hod *or deeegregation is what Is called the free choice plan. Puller:melt a plan. students selet their shoot inetend of being assigned to them on .tern; rapid' basis. ronrts have expreesly cosolitlom1 their approval of such plans onaffirm:dile action by school boards to instire that 'free choice' virtually exists. It is

our responsibility to review etr!' plans to 'moire that the choler* N. in fact. free ;milto indicate to school districts what procedures should be ued to assirr truefreedom of choice.

Ill seeking appropriate criteria to guide us its review of free choice lie haveadopted the objective criteria omitted by the courts in sltnilar shill:011ms. One suchcriterion k the distributiou of students by race in the ration.: schools of a systemafter the stmlent bare made their chokes. If .411).000H:11 numbers of Negro childrenchoose and go to previously allwIlite schools, the choke system ie clearly operatingfreely. if few or mine eboose to do Ir in :t community where there ant. been apattern of :..egrvintiou, then it Is approprbste that the free eltolee plan be reviewed. 4 other factors roneldered to determine whether the system is operating freely.

With more than 2000 len:tate districts to consider, suet, percentoge* are Mu.,odminhirdtirc guide which helps as to drienihne iti...tricts requiring

further reriete. Such effirro in turn tent determine whether or not the freedom ofIhoire ohm ;S working NON." New York Tittles. Aps11 12. 1960. page 1.

Printed In !hearings before the Committee on ltnies. Hones* of Itepresent:stivee. S9 l'otig.2r1 Sc'.'.,, on II. Res. 820. Sept. 29-491. 1900, p. 21, Commissioner Howe reaffirmedSeeretec Gardners policies as Stated in t lie letter. See ilearing,i on II. iteN. SSG,p. 30-33.

In reviewing the effectiveness'of an approved plan it seems eason-able to use some sort of yardstick or objective percentage guide.The percentage requirements in the Guidelines are modest. suggestingonly that systems using free choice plans for at least two years shouldexpect 15 to 18 per cent of the pupil population to have selecteddesegregated schools. This Court has frequently re ied on percentagesin jury exclusion cases. Where the percentage of Negroes on the juryand jury venires is disproportionately low compared with the Negropopulation of a (-minty, a prima facie case is made for deliberatediscrimination against Negroes.' °' Percentages have been used inother civil rights eases.'"` A similar inference may be drawn in sehooldesegregation cases, when the number of Negroes attending schoolwith white children is manif-stly out of line with the riitio of Negroschool children to white school children in, public schools. Com-mon sense suggests that a gross discrepancy between the ratio ofNegroes to white hildren in a school and the I IFAV percentage guidesraises an inference that the school plan is not working as it shouldin providing a unitary, integrated system. Thus Brows e. 13ilehanan.D.C. Del. 1962, 207 F. Sapp. 820 held that this natural inferencecoupled with the board's possessing the probative facts that mightrebut the inference created a presumption that the proposed desegre-gation plan was unconstitutional.

The Guidelines were adopted for the entire country. However. theyhave been formulated in a context sympathetic with local problems.Sections 03-105 of the 1964 Civil Rights Act provide that, upon re-quest. the Commissioner of Edneation may render technical assistanceto public school systems engaged in desegregation. The Commissionermay also establish training institutes to counsel school personnel hav-ing educational problems occasioned by desegregation: and the Coin-missioner may make grants to school boards to defray the costs of pro-viding in-service training on desegregation. In short. the Commissionermay assist those school boards who allege that they will have difficultycomplying with the guidelines. When desegregation plans do not meetminimum standards, the school authorities shonld ask HEW for as-sistance. And district courts should invite HEW to assist by givingadvice on raising the levels of the plans and by helping to coordinateat school's promises with the school's performance. In view of the com-petent assistance 1-114.1W may furnish schools, there is a heavy burdenon proponents of the argument that their schools cannot meet HEWstandards.

VI.

School authorities in this circuit, with few exceptiong. have turnedto the "freedom of choice.' method for desegregating- public schools.The method has serious shortcomings. Indeed. the "slow pace of inte-

"7Very decided variations 'n proportions of Negroes and whites on jury 11sts fromracial proportions In the population, Which variations are not explained and are longcontinued. furnished evidence of systematic excluhlon of Negroes from jury ,Nervice.Coited States ex rel. Seals v. Wilinan. 5 Cir. 19112. 30-1 1''.2d 53. 07.In United States v. Ward. supra at 803. the Court compared the number of Negroes

registered with the number of Negroes eligible to vote. A similar prays fie is used inprocm systematic exclusion of Negroes from jnrieg. Casr.ell v. Texas, 1950. 3:in 1%8.; Avery v. Georgia, 11153. 345 U.S. 5:M; Smith v. recess. 1910. 311 V.S. 128. In eachInstance, 1m-cottage tests have been used not a.: al' effort to effect racial balance, butas a means of determining whether a challenged procedure k operating in a tv:o Outviolates constitutional rights. See Finkelstein. The Application of Statj.t fold I )oekiollThome to the Jury Discrimination Cases. 80 flarv. I,. Itev.'"

See footnote 58.

5S

gration in the Southern and border States is in large measure attribut-able to the manner in which free choice plans . . . have operated." "1'When such plans have school officials with a broad area of uncontrolleddiscretion, this method of desegregation is better suited than any otherto preserve the essentials of the dual school system while giving papercompliance with the duty to desegrepte.

A free choice plan does not abandon geographical criteria, but re-quites no rigid ad' orence to attendance zones. Theoretically every childmay choose his sc:mol, but its effectiveness depends on the a vaicabilityof open places in balanced schools. Moreover, unless there is some pro-vision to prevent white children transferring out of an Unbalancedschool this plan will promote resegregat ion." 1.

"I'nder freedom of choice plans, schools tend to retain their racialidentification," "2 Such plans require affirmative action by parentsawl pupils to disestablish the existing system of public schools. In thiscircuit white students rarely choose to attend schools identified asNegro schools. Negro students who choose white schools are, as weknow from many cases, only Negroes of exceptional initiative and forti-twit.. New eonstruetion and improvements to the Negro school plantattract no white students and diminish Negro motivation to ask fortransfer. Nevertheless, the Eighth Circuit. has approved freedom ofchoice plans "as a permissible method at this stage." although recogniz-ing that such a plan "is still only in the experimental stage and it hasnot yet. been demonstrated that such a method will fully implementthe decision of Brown and subsequent cases and the legislative declara-tion of § 2000(d) of the Civil Rights Act of 19(31-." 13 We have said :-At this stage in the history of desegregation in the deep South a'freedom of choice plan' is an acceptable method for a school boardto 11Se in fulfilling its duty to integrate the school system. In the longrim, it is hardly possible that schools will he administered on anysuch haphazard basis". Singleton II, 355 F.2d at 71. IIEW recog-nizes freedom of choice as a permissible means of desegregation. SeeRevised Guidelines, Subpart B, 181.11, and all of Subparr D.

Courts should closely scrutinize all such plans. Freedom of choiceplans "may . . . be invalid beimuse the 'freedom of choice' is illusory.

110 Rep. U.S. Comm. on Civil Rights, Survey of School Desegregation in the Southernand Border States-1965-6(i. p. 51. "Freedom or Attlee plans ;tepted by the ()Mee ofducation hove not disestablished the dual and racially segregated school systems Involved,fur the following reason.: a. Negro and white schools have tended to retain their ends)Identity White .tridents rarely elect to attend Negro schools 5 c. S Negro studentsare reluctant to sever normal school ties, made stronger by the racial Identilleation of their.stools d. Iany NOV' a children and parents In Southern States. having lived for decadesIn positions of subservienee. are reluctant to assert their rights a e. Negro children andinueios in Southern States frequently will not choose a formerly all - white S1I 001 Arpall..4.they fear retaliation and hostility from the white community : f. In some :shoal districtsin the S'outh. retool efflclnls bore fliled to prevent or puul.h lmrassment by white childrenof Negro Olind011 who have elected to atteml white Qhoob4;, g. P, some Drew: hi the Southwhere Neurto have sleeted to attend formerly all white ebools. the Negro comet nifty hasbee suldeeted to retaliatory violence, evictions. loss of jolts, and then forms of intimida-tion,- Thld.

See Goss r, Board of Bthitation. 1903. 373 U.S. (S8. 83 S.Ct. 1405. 10 r,,D1.2,1 632:Binned V. Sellool Board of the City of Charlottesville. 4 Cir. 1962, 308 P.2d 920, cert. den'd374 'US. 827 (19631 Jnekson v. School Board of the City of I.viiehlmrg. 4 Cir. 1903... ^,21F 2d 230 For discussion of limitations to a free choice plan, see Piss, Racial Imbalancein the Piddle Schools. 78 IIarv. I.. Rey. 5(13. 572 (1965).

112 art, T A Conlin. on ('iv. iti,nt'4. Stirrer of Desegregatioh fn the B011.11Pra and BorderS.,tes. 1001-66, p. 33. The Commission also notes that racial blontlfiention of sehools as

..ohool% 1.4 strengthened by : (11 normal 4'21 Interest Negro ad.ministratos and teaeliers have in maintaining. the (Mal system (from May 19(x5 to Sep.tern'or 19115. 66R Negro teaeliers became surplus because of desegregation): (3) someNegro educators nre opposed to desegregation. because hoc, eeonomie and eultural depriva-tie eaes No roes 111 nreoared to compete with white children In schools.

311Kemp v. Beasley, 8 Cir. 1965, 832 P.26 14, 21.

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61

D. Transfers for Students in Non-deseggated Grades and withSpecial Needs. In Singleton 11 we held that children in still-segregatedgrades in Negro schools "have an absolute right, as individuals, totransfer to schools from which they were excluded because of ickrace." 114 335 F.2d at 869. See also Rogers v. Paul. 1965, 382 U.S. 198,15 L.Ed.2d 26:1.. transfer provision should be included in the' plan.The right to transfer under a state Pupil Placement Law should beregarded as an additional right that takes into consideration criteriairrelevant to the absolute right referred to in Rogers v. Paul.

E. Services, Facilities, Activities. and Programs. In Singleton 11 weheld that there should be no segregation or discrimination in services,facilities, activities, and programs that way be-conducted or sponsoredby, or affiliated with, the school in which a student, is enrolled. Wehave in mind school athletics and inter-schlastic associations of course,but also parents-teachers associations. In order to eliminate any un-certainty on this point, we hold that the plan should contain a state-ment that there will be no such segregation or discrimination.

F. School Equalization. In recent years, as we are all well aware.Southern states have exerted great dim; to improve Negro schoolplants. There are however many old and inferior schools readily iden-tifiable as Negro schools; there are also many superior white schools, in

'tennis of the quality of instruction. A freedom of choice plan win; be- ineffective if the students cannot choose among schools that are sub-

stantially equal. A school plan therefore should provide for closing in-ferio schools and should also include a provision for remedial pro-rams to overcome past inadequacies of all-Negro schools. This will,

of course, require the local school authorities and the trial courts toexamine carefully local situations and perhaps seek advice from quali-fied, unbiased authorities in the field.

G. Scheduled Compliance Reports. Scheduled compliance reports tothe court. on the progress of freedom of choice plans arc a necessity andof benefit to all the parties. These should be required following thechoice period and again after the opening of school. None of the schoolboards expressly objected to this provision, or one similar to it, and itdoes not appear onerous.

H. Desegregation of Faculty and Staff. The most difficult, problemin the desegregation process is the integration of faculties. See Section

D of this opinion. A recent survey shows that until the 1966-67session not a single Negro teacher in Alabama, Louisiana, or Missis-sippi has been assigned to a school where there are white teachers."As evidenced hi numerous records, this long continued policy has re-sulted in inferior Negro teaching and in inferior education of Negroesas a class. Everyone agrees, on principle, that the selection and assign-ment of teachers on merit should not be sacrificed just for the sakeof integrating faculties; teaching is an art. Yet until school authoritiesrecognize and carry out their affirmative duty to integrate faculties as

1H This was not now. In 1957 a district court in Maryland held that stair step 1111111:4do not justify excluding a qualified individual. notwithstanding a more gradual scheduleapplicable to the school population generally. Moore v. Board of Education of HarfordCounty, D.Md. 1957, 146 F. Stipp. 91 and 15'2 F.Supp. 114. aff'd sub.notu. Slade v. Boardof Education, 4 Cir. 1958, 252 F.2d 191, cert. deit'd 357 U.S. 906 (1958). This Courtapproved such an order in Augustus v. Board of Education, 5 Cir. 1962, 306 F.2d 863.IL/See footnote 35. However, the press has carried accounts that progress is being madetoward "desegregation of teachers. administrators and other _personnel" for 1967-6S inJackson, Mississippi. See Jackson Clarion Ledger, July 30, 1966. Pate 1.

71-526-72-5

62

well as facilities, there is not the slightest possibility of their everestablishing an operative non- discriminatory school system.'" Thetransfer of a few Negro children to a white school does not do awaywith the dual system. A Negro faculty makes a Negro school; theNegro school contineus to offer inferior educational opportunities; andthe school system continues its psychological harm to Negroesas a classby not putting them on an equal level with white children as a class.17To prevent such harm or to undo the harm, or to prevent resegregation,the school authorities, even in the administration of an otherwise ra-tional, nondiscriminatory policy, should take corrective action involv-ing racial criteria. As we pointed out (see Section III C) tin fashioningan appropriate remedy tending to undo past discrimination this Courthas often taken race into account.

In the past year, district courts have struggled with the problem offraming effective orders for the desegregation of faculty. (1) Somecourts have focused upon the specific results to be reached by reassign-ment of teachers previously assigned solely upon the basis of theirrace. Dowell v. School Board of Oklahoma C'ty Public Schools.W.D.Okla. 1965, 244 F. Supp. 971, Kier v. Colt? ty School Board ofAugusta County, W .D. Va. 1966, 249 F. Supp. N9.118 The orders en-tered in these cases require the defendant school boards to assign anynewly enivloyed teachers and reassign alread;-employed faculty sothat the'proportion of each race assigned to teach in each school will bethe same as the proportion of teachers of that race in the total teachingstaff in the system, or at least, of the particular school level in whichthey are employed. (2) Other ,_ourts have not been specific as to thenumber of teachers of each race that should be assigned to each schoolin order to remove the effects of past discriminatory assiounents. Thesecourts have focused nee: the mechanics to be followed in removing

ioneffect of past discrimination rather than u n the result as such.Thus, in Beckett v. School Board of the City of Norfolk, Civil ActionNo. 2214 (E.D. Va., 1966) ; Gilliam v. Schoo Board of the City ofHopewell, Civil Action No. 3554 (E.D. Va. 1966) ; and Bradley v.School Board of the City of Richmond, Civil Action No. 3353 (E.D.Va. 1966), the courts approved consent decrees setting forth in detailthe considerations that would control the school administrators infilling faculty vacancies and in transferring already-employed facultymembers in order to facilitate faculty integration. (3) In a third groupof cases, the district court, while emphasizing the necessity of affirma-tive steps to undo the effects of 'past racial assignments of faculty andwhile requiring some tangible results, has not been specific regardingthe mechanics or the specific results to be achieved. See Harms v. Bul-lock County Board of Education, M.D. Ala. 196G,253 F. Supp. 276;United States v. Lownde8 Board of Education, Civil Action No. 2328-

114 "Faculty desegregation is n necessary precondition of an acceptable free choice plan.A free choice plan cannot disestablish the dual school system where facultaies remainsegregated on the basis of the race of the teachers or the pupils. In such circumstances nschool inevitably will remain identified as "white" and "Negro" depending on the color ofthe teachers." Rep., U.S. Comm. on Civil Rights. Survey of Desegregation in the Southernand Border States-1965-66.9.

IT Faculties should be desegregated so that "both white and Negro students would feelthat their color was represented upon an equal level and that their people were sharingthe responsibility of high-level teaching Dowell v. School Board of Oklahoma City PublicSchools. W.D. Okla. 1965.219 F. Supp. 427.

US In Kier the Court sold that duty to desegregate faculty must be "immediately andsquarely met": there can be no freedom of choice for faculties and administrative staffsby the 1988-87 school year. Insofar as possible, "the percentage of Negro teaehers in eachschool of the system should approximate the percentage of Negro teachers in the entiresystem for the 1985-68 season". 249 F. Supp. at 22.

63

N CAD. Ala. 1966) ; Carr v. Montgomery C °Hilt it Board of Education,M.D. Ala. 1966, 253 F. Stipp. :306.

We agree with the Eighth Circuit's statement : "The lack of adefinite program will only result in further delay of 1011g overdueaction. We are not content at this late date to approve a desegrega-tion plan that contains only a statement of general good intention.We deem a positive commitment to a reasonable program aimed atending segregation of the teaching staff to be necessary for the finalapproval of a constitutionally adequate desegregation plan." Clark v.Board of Education of the Little Rock School District, No. 1S,368,December 15, 1966 (unreported). In that case the Court did not im-pose "a set time with fixed mathematical requirements". However theCourt was firm in its position: "First, as the Board has already posi-tively pledged, future employment, assignment, transfer, and dis-charge of teachers must be free from racial consideration. T..vo, shouldthe desegregation process cause the closing of schools employing indi-viduals predominately of one race, the displaced personnel should, atthe very minimum, be absorbed into vacancies appearing in the system.Smith, v. Board of Education of Morrilton, sicpra. Third, wheneverpossible, requests of individual staff members to transfer into minoritysituations should be honored by the Board. Finally, we believe theBoard should make all additional positive commitments necessary tobring about some measure of racial balance in the staffs of the indi-vidual s, in the very near future. The age old distinction of`white scl.A. $1 and 'Negro schools' must be erased. The continuation ofsuch distinctions only perpetrates inequality of educational oppor-tunity and places in jeopardy the effective future operation of theentire 'freedom of choice' type plan."

In Singleton 1 we agreed with the original HEW Guidelines inrequiring that an "adequate start" toward faculty desegregationshould be made in 1966-67. The requirement that l grades be de-segregated in 1967-68 increases the need for substantial progress be-yond an "adequate start". It is essential that school officials (1) ceasepracticing racial discrimination in the tiring and assignment of newfaculty members and (2) take affirmative programmatic steps to cor-rect existing effects of past racial assignment. If these two require-ments are prescribed, the district court should be able to add specificsto meet the particular situation the case presents. The.goal should bean equitable distribution of the better teachers.119 We anticipate thatwhen district courts and this Court have gained more experience withfaculty integration, the Court will be able to set forth standards morespecifically than they are set forth in the decrees in the instant cases.

"9 Rev. Theodore M. Besbargh. President of Notre Dame and a member of the Civil RightsCommission, makes these suggestions: "A realistic and quite possible approach to this is,I think, through the immediate improvement of all teachers of each race, beginning withthose who most need assistance in being better qualified as teachers. 9 At this precisetime of transition. why not institute along with the whole process of desegregation in theSouth a positive program of upgrading all teachers in the present systems? In fact, thebest teachers of either race, worthy of their profession. should be put in the schools needingthe most help to improve. One might even think of rotating teachers within the schoolsof a given district. There is already the existing pattern of academic year and summerinstitutes for Just this purpose of improving teachers.... ! If this positive action couldbe moved along quickly, with good will from all concerned, school administrators, parents.and students. then we could eliminate the present catandmouse game which is going onbetween the Federal Office of Education and the local Southern school districts. In fact,I have a feeling that the South could solve its problem long before the North, which hasan educational desegregation problem which may be less amenable to solution became ofentrenchment patterns of housing segregation." Rep.. U.S. Comm. on Civil Rights, Survey ofDesegregation in tb Southern and Border States-1965-66, p. 64.

64

VII.We attach a decree to be entered by the district courts in these cases

consolidated on appeal. (See Appendix A.)We have carefully examined each of the records in these cases. In

each instance the record supports the decree. However, the provisionsof the decree are intended, as far as possible, to apply uniformlythroughout this circuit in cases involving plans based on free choiceof schools. School boards, private plaintiffs, and the United Statesmay, of course, come into court to prove that exceptional circum.:stances compel modification of the decree. For example, school sys-tems in areas which let school out during planting and harvestingseasons may find that the period for exercise of choice of schools,March 144 should be changed toa different month.

As Brotru dictates. thechanged

places responsibility on the schoolauthorities to take affirmative action to bring about. a unitary. non-racial system. As the Constitution dictates, the proof of the puddingis in the eating: the

isof a school board's complianee with con-

stitntional standards s the. resultthe performance. Has the operationof the pronilsed plan actually eliminated segregated alai token-deseg-regated schools and achieved substantial integration ?

The substantive requirements of the decree derive from the Four-teenth Amendment as interpreted by of the Supreme Courtand of this Court, in many instances before the I fEW Guidelines werepublished. For administrative details, we have looked to the ()Mee ofEducation. For example, those familiar with the HEW Guidelines willnote that the decree follows the Guidelines exactly as to the form letterswhich go to parents announcing the need to exercise a choice of schools,and the forms for exercising that choice are the same. Indeed it closeparallel will be noted between lunch in Pats II through V of thedecree and the Guideline provisions.

The great bulk of the tkhool districts in this circuit have applied forFederal financial assistance and therefore operate under voluntarydesegregation plans.'" Approval of these plans by the Office of Educa-tion qualifies the schools for federal aid. In this opinion we have heldthat the HEW Guidelines now in effect are constitutional and arewithin the statutory authority created in the Civil Rights Act of 1964.Schools therefore. in compliance with the Guidelines MIL in general beregarded as discharging constitutional obligations.

Some schools have made no move to desegregate or have had plansrejected as unsatisfactory by district courts or the 1IEW'. We expectthe provisions of the decree to be applied in proceedings involvingsuch schools. Other schools have earlier court-approved plans whichfall short of the terms of the decree. On motion by proper parties to re-open these cases, we expect these plans to be modified to conform withour decree. In some cases the parties may challenge various aspects ofI IEW-approved plans. Our approval of the existing Guidelines and

in "Although only 164 (3.4 percent) of the 4,941 school districts in the South havequalified by the court order route, these districts include most of the major cities of theSouth tat, accordlugly, a large share of the population. Cow! orders are r significantmethod of qualification particularly in Louisiana. where official resistance to compliancewith Title VI has been most widespread. In Louisiana, :12 court orders have been accepted,*rhythm 86.5 percent of the school districts Judged qualified." 1966--U.S. Cconn. on eiC.Bights. Sane) of School Desegregation In the Southern and Border States M. See alsoTable 3 in Appendix B.

65

the difference (Aced to any future Guidelines is not intended to deny aday in court to any person a&soting: individual rights or to any schoolboard contesting HEW :union. In any school desegregation case theissue concerns the constitutional rights of Negroes, individually and asa class, and the constitutional rights of resStatenot the issuewhether federal financial assistance should be withheld under Title VIof the Civil Rights Act of 1964. -

When school systems arc under court-ordered desegregation, thecourts are responsible for determining the sufficiency of the system'scompliance with the decree. The court's task, therefore, is a continuingprocess, especi^.1y in major areas readily susceptible of observationand measurement, such as faculty integration and student desegrega-tion. (1) As to faculty, we have found that school authorities have anaffirmative duty to break up the historical pattern of segregated facul-ties, the hall-mark of the dual system. To aid the courts in its task, thedecree requires the school authorities to report to the district courtsthe progress made toward faculty integration. The school authoritiesbear the burden of justifying an apparent lack of progress.r22 (2) As tostudents, the decree requires school authorities to make reports to thecourt showing by race, by school, by grade, the choices made in each"choice period". A similar report is required after schools open toshow what actually happened when schools opened.

What the decree contemplates, then, is continuing judicial evalua-tion of compliance by measuring the performancenot merely thepromised performanceof school boards in carrying out their con-stitutional obligation "to disestablish dual, racially segregated schoolsystems and to achieve substantial integration within such systems."District courts may call upon HEW for assistance in determiningwhether a. school board's performance measures up to its obligation todesegregate. If school officials in any district should find that theirdistrict still has segregated faculties and schools or only token inte-gration, their affirmative duty to take corrective action requires themto try an alternative to a freedom of choice plan, such as a geographicattendance plan, a combination of the two, the Princeton plit11.124 orsome other accpetable substitute, perhaps aided by an educationalpark. Freedom of choice is not a key that opens all doors to equaleducational opportunities.

Given the knowledge of the educators and administrators in theOffice of Education and their day to day experience with thousandsof school systems, judges and school officials can ill afford to turn theirbacks on the proffer of advice from HEW. Or from any responsible

in For an Tim approved desegregation plan held Insufficient to protect ronctIttitionelrights of Negro students see Brown v. Board of Education of DeWitt School District, E.D,Ark. 1066. P. Cupp. See nisi, Thompson v. County School Board of Hanover County.F.D. Va. 1966. 252 F. Stipp. 546: Turner v. County School Board of Goochland County.KD. Va. PIM 252 F. Stipp. 578.

12:"Innumerable cases have clearly established tht principle that under circumstancessuch as this where a history of racial discrimination exists, the burden of proof has beenthrown upon the party having the power to produce the facts ..." Chambers v. Henderson-ville City Board of Edneatien. 4 Cir. 1966. 364 F.21 189. 192. In Brown //, permittingdesegregation with "deliberate speed" the Supreme Court put the "burden . upon thedefendants to establish that (additional) time is necessary to carry out the ruling In aneffective manner". 349 iT.8. rt 302.

sw U.S. Comm. on Civil Rights. Survey of School Desegregation in the Southern andBonier States 1965-66. p. 54.04 The Princeton plan involves establishing attendaoce zones including more than oneschool and assigning students by grade rather than he residence location. Tbtet all of the

zone's students in grades 1 thorngh 3 would attend school A. while all students In grades 4through 6 would attend school B. For a discussion of xlte plan see Figs. Racial Imbalancein the Public Schools: The Constitutional Concepts, 78 Harr. L. Rev. 564:573 (1065).

government agency or independent group competent to work towardsolution of the complex problem of de jure discrimination bequeathedthis generation by ten precedi lig gen era t ions.

Now after twelve years of snail's pace pr ogres toward school de-segregation, courts are entering a. new era. The question to be resolvedin each case is: How far have formerly de jure segregated schoolsprogressed in performing their affirmative constitutional duty to fur-nish equal educational opportunities to all public school children? Theclock has ticked the last tick for tokenism and delay in the name of"deliberate speed".

* * *

In the snit against the Caddo Parish School _Board July 19. 1965,the United States moved to intervene under § 902 of the Civil RightsAct of 1964 (4:1 U.S.C. § 200h-2). The motion was filed tweke daysafter the Board submitted its plan in compliance with the districtcourt's decree of June 14, 1965, but two days before the originalplaintiffs filed their objections and before the court issued its orderapproving the plan. The district court denied the motion on theground that it came too late. In these circumstances we consider thatthe motion was timely filed and should have been granted.

This Court denies) the motion of certain appellants to consolidatetheir eases, but allowed consolidation of briefs and, in effect. treated thecases as consolidated for purposes of appeal. The Court, however, ineach case has separately considered the particular contentions of allthe parties in the light of the record.

The Court REVERSES the judgments below and REMANDSeach case to the district court for further proceedings in accordancewith this opinion.COX, District Judge: I reserve the right-to dissent in whole or in

part: at it laterdate.

Arersoix A-I."ROPOSFM DECREE

It is ORDERED, ADJUDGED and DECREED that the defend-ants, their agents, officers, employees and successors and all those inactive concert and participation with them, be and they arc perma-nently enjoined from discriminating on the basis of race or color inthe operation of the school system. As set out more particularly in thebody of the decree, they shall take affirmative action to disestablish allschool segregation and to eliminate the effects of past racial dis-crimination in the operation of the school system:

I-SFEED OF DFSEGREGATIOX

Commencing with the 1961-6S school .ear, in accordance with thisdecree. all grades, including kindergarten grades, shall be desegre-gated and pupils assigned to schools in these grades without regard torace or color.

II- EXERCISE OF CHOICE

The following provisions shall apply -to all grades:(a) Who May Exercise Choice. A choke of schools may be exercised

by a parent or other adult person serving as the student's parent. 1 stn-

67

dent mar exercise his own choice if he (1) is exercising a choice for theninth or a higher grade, or (2) has reached the age of fifteen at the timeof the exercise of choice. Such a choice by a student is controlling unlessa different choice is exercised for him by his parent or other adult per-son .sn-ving as his parent during the choice period or at such later timeas the student exercises.a choice. Each reference in this decree to a stu-dent's exercising a choice means the exercise of the choice, as appropri-ate, by a parent or such other adult, or by the student himself:

(b) Annual Exercise of Choke. All students, both white and Negro,shall be required to exercise a free choice of schools annually.

(c) Choke Period. The period for exercising choice shall commenceMay 1 1967 and end June 1.1967, and in subsequent years shall com-mence March 1. and end March 31 preceding the school year for whichthe choice is to be exercised. No student. or prospective student whoexercises his choice within the choice period shall be given any.prefer-ence because of the time within the period when such choice wasexercised.

(d) Mandatory Exercise of Choice. A failure to exercise a choicewithin the choice period shall not preclude any student from exercisinga choice at any time before he commences school for the year with re-spect to which' the choice applies, but such choice may be subordinatedto the choices of students who exercised choice before the expiration ofthe choice period. Any student who has not exercised his choice ofschool within a week after school opens shall be assigned to the schoolnearest his home where space is available under standards for deter-mining =Bab!' space which shall be applied uniformly throughoutthe system.

(e) Public Notice. On or within a week before the date the choiceperiod opens, the defendants shall arrange for the conspicuous publi-cation of a notice des-ribing the provisions of this decree in the news-paper most 0-enerally circulated in the community. The text of thenotice shall be substanfiahly similar to the text of the explanatory lettersent home to parents. (See paragraph -II(e).) Publication as a legalnotice will not be sufficient. Copies of this notice must also be given atthat time to all radio and television stations serving the community.Copies of this decree shall be posted in each school in the school system.and at the office of the Superintendent of Education.

(f) Mailing of Explanatory Letters and Choice Pot Ins. On the firstday of the choice period there shall be distributed by first-class mail anexp.. lanatory letter and a choice forte the parent (or other adult per-son acting as parent, if known to the defendants) of each student,together with a return envelope addressed to the Superintendent.Should the defendants satisfactorily demonstrate to the court that theyare unable to comply with the requirement of distributing the ex-planatory letter and choice form by first-class mail, they shall proposean alternative method which will maximize individufd notice, i.e.,personal notice to parents by delivery to the pupil with adequate proce-dures to insure the delivery of the notice. The text for the explanatoryletter and choice form shall essentially conform to the sample letterand choice form appended to this decree.

(g) Extra Copes of the Explanatory Letter and Choice Form.Extra copies of the explanatory letter and choice form shall be freely

68

available to parents, students, prospective students. and the generalpublic at each school in the system and at the office of the Superin-tendent of Education during the times of the year when such schoolsare usually open.

(h) Content of Choke Form. Each choice form shall set. forth thename and location of the grades offered at each school and may requireof the person exercising the choice the name ldrm, age of student,school and grade currently or most recently .ended by the student,the school chosen, the signature of one parent. or other adult personservino. as parent, or where appropriate the signature of the student,and the identity of the person signing. No statement of reasons for aparticular choice, or any other information, or any witness or otherauthentication, may be required or requested, -without approval of thecourt.

(i) Return of Choice Form. At the option of the person completingthe choice form, the choice may be returned by mail, in person, or bymessenger to any school in the school system or tp the office of theSuperintendent.

(j) Choices not on Official Form, The exercise of choice may also bemade by the submission in like manner of any other writing whichcontains information sufficient to identify the student and indicatesthat he has made a choice of school.

(k) Choice Forms Binding. When a choice form has once been sub-mitted and the choice period has expired, the choice is binding for theentire school year and may not be changed except in cases of parentsmaking different choices from their children under the conditions setforth in paragraph II (a) of this decree and in exceptional caseswhere, absent the consideration of race, a change is educationallycalled for or where compelling hardship is shown by the student.

(1) Preference in Assignment. In assigning students to schools, nopreferences shall be given to any student for prior attendance at aschool and, except with the approval of court in extraordinary circum-stances, no choice shall be denied for any reason other than over-crowding. In case of overcrowding at any school, preft.ence shall begiven on the basis of the proximity of the school to the homes of thestudents choosing it, without regard to race or color. Standards for de-termining overcrowding shall be applied uniformly throughout thesystem.

(in) Second Choice where First Choke is Denied. Any studentwhose choice is denied must be promptly notified in writing and givenhis choice of any school in the school system serving his grade levelwhere space is available. The student shall have seven days from thereceipt of notice of a denial of first choice in which to exercise a secondchoice.

(n) Transportation. Where transportation is generally provided,buses must be routed to the maximum extent feasible in light of thegeographic distribution of students, so as to serve each student choos-ing any school in the system. Every student choosing either the for-merly white or the formerly Negro school nearest his residence mustbe transported to the school to which he is assigned under these provi-sions, whether or not it is his first choice, if that school is sufficientlydistant from his home to make him eligible for transportation undergenerally applicable transportation rules.

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(o) Officials not to Influence Choke. At no time shall any officialteacher. or employee of the school system influence any parent. orother adult. person serving as a parent. or any student, in the exerciseof a choice or favor or penalize any person because of a choicemade. If the defendant school board employs professional guidancecounselors. such persons shall base their guidance and counseling onthe Individual students particular personal. academic. and vocationalneeds. Such guidance and counseling by teachers as well as professionalguidance counselors shall be available to all students without regardto race or color.

(p) Protection of Persons Exercising Choke. Within their author-ity school officials are responsible for the protection of persons exer-cising rights under or otherwise affected by this decree. They shall,without delay, take appropriate action with regard to any studentor staff member who interferes with the successful operation of theplan. Such interference shall include harassment. intimidation, threats,hostile words,or acts. and similar behavior. The school board shall notpublish, allow, or cause to be published, the names or addresses ofpupils exercising rights or otherwise affected by this decree. If officialsof the school system are not able to provide sufficient protection, theyshall seek whatever assistance is necessary from other appropriateofficials.

III---PsosrEctIvz STUDENTS

Each prospective new student shall be required to exercise a choiceof schools before or at the time of enrollment. All such students knownto defendants shall be furnished a copy of the prescribed letter toparents, and choice form.-by mail or in person, on the date the choiceperiod opens or as soon thereafter as the school system learns that heplans to enroll. Where there is no pre-registration procedure for newlyentering students. copies of the, choice forms shall be available at theOffice of the Superintendent and at each school during the time theschool is usually open.

IV-TRANSFEES

(a) Transfers for Students. Any student shall have the right at thebeginning of a new term, to transfer to any school from which he wasexcluded or would otherwise be excluded on account of his raceor color.

(b) Transfers for Special Needs. Any strident who requires acourse of study not offered at the school to which he has been assignedmay be.permitted, upon his written application, at the beginning.ofany school term or semester, to transfer to another school whichoffers courses for his special needs.

(c) Transfers to Special Classes or Schools. If the defendants oper-ate and maintain special classes or schools for physically handicapped,mentally retarded, or gifted children, the defendants may assignchildren to such schools or classes on a basis related to the functionof the special class or school that is other than ffreedom of choice.In no event shall such assignments-be made on the basis of race orcolor or in a manner which tends to perpetuate a dual school systembased on race or color.

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V- SERVLCFS, FACILITIES, ACTIVITIES AND PROGRAMS

No student shall be segregated or discriminated against on ac-count of race or color in any service, facility, activity, or program(including transportation, athletics, or other extracurricular activity)that may be conducted or sponsored by or affiliated with the school inwhich he is enrolled. A. student attending school for the first time ona desegregated basis may not be subject to any disqualification or wait-ing period for participation in activities and programs, includingathletics, which might otherwise apply because he is a transfer ornewly -assigned student except that such transferees shall be subjectto long-standing, non-racially based rules of city, county, or stateathletic associations dealing with the eligibility of transfer studentsfor athletic contests. All school use or school-sponsored use of athleticfields. meeting rooms, and all other school related services, -facilities,activities, and programs such as Conunencement exercises and parent-teacher meetings which are open to persons other than enrolled stu-dents, shall be open to all persons without regard to race or color.All special educational programs conducted by the defendants shallbe conducted without regard to race or color.

%I-SCHOOL EQUALIZATION

(a) Inferior Schools. In schools heretofore maintained for Negrostudents, the defendants shall take prompt steps necessary to providephysical facilities, equipment,courses of instruction, and instructionalrasteroils of quality equal to that provided in schools previously main-tained for white students. Conditions of overcrowding, as determinedby pupil-teacher ratios and pupil-classroom ratios shall, to the extentfeasible,- be distributed evenly between schools formerly maintainedfor Negro students and those formerly maintained for white students.If for any reason it is not feasible to improve sufficiently any schoolformerly maintained for Negro students, where such improvementwould otherwise be required by this subparagraph, such school shallbe closed as soon as possible, and students enrolled in the school shallbe reassigned on the basis of Ireedomof choice. By October of eachyear, defendants shall report to the Clerk of the Court pupil-teacherratios, pupil-classroom ratios, and per-pupil expenditures both as tooperating and capital improvement costs, and shall outline the stepsto be taken and the time within which they shall accomplish theequalization of such schools.

(b) Remedial Programs. The defendants shall provide remedialeducation programs which permit students attending or who havepreviously attended all-Negro schools to overcome past inadequaciesin their education.

IiIi-NENV CONSTRUCTION

The defendants, to the extent consistent with the proper operationof the school system as a whole, shall locate any new school and sub-stantially expand any existing schools with the objective of eradicat-ing the vestiges of the dual system and of eliminating the effects ofsegregation.

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VIII - FACULTY AND STAFF

(a) Faculty Employment. Race or color shall not be a factor in thehiring, assignment, reassignment, promotion, demotion, or dismissalof teachers and other professional staff members, including studentteachers, except that race may be taken into account for the purposeof counteracting or correcting the effect of the segregated assignmentof teachers in the dual system. Teachers, principals, and staff membersshall be assigned to schools so that the faculty and staff is not composedexclusively of members of one race. Whereever possible, teachers shallbe assigned so that more than one teacher of the minority race (whiteor Negro) shall be on a desegregated faculty. Defendants shall takepositive and affirmative steps to accomplish the desegregation of theirschool faculties and to achieve substantial desegregation of facultiesin as many of the schools as possible for the 1967-68 school year not-.withstanding that teacher contracts for the 1966-67 or 1967-68 schoolyears may have already been signed and approved. The tenure ofteachers in the system shall not be used as an excuse for failure tocomply with this provision. The defendants shall establish as anobjective that the pattern of teacher assignment to any particularschool not be identifiable as tailored fora heavy concentration of eitherNegro or white pupils in the school.

(b) Dismissals. -Teachers and other professional staff members maynot be discriininatorily assigned, dismissed, demoted, or passed overfor retention, promotion, or rehiring, on the ground of race or color.In any instance where one or more teachers or other professional staffmembers ar 4-o be displaced as a result of desegregation, no staff va-cancy in the *:ool system shall be-filled through recruitment fromoutside the system unless no such displaced staff member is qualified tofill the vacancy. If, as a result of desegregation, there is to be a reduc-tion in the total professional staff of the school system, the qualifies-

-- tions of all staff members in the system shall be evaluated in selectingthe staff member to be released without consideration of race or color.A report containing any such proposed dismissals, and the reasonstherefor, shall be filed with the Clerk of the Court, serving copiesupon opposing counsel, within five. (5) clays after such dismissal,demotion, etc., as proposed.

(c). Past Assignment. The defendants shall take steps to assign andreassign teachers and other professional staff members to eliminatepast discriminatory patterns.

IX-REPORTS TO THE COURT

(1) Report on Choice Period. The defendants shall serve upon theopposing parties and file Nith the Clerk of the Court on or before.April 15,1967, and on or before June 15,1967, and in each subsequentvear on or before June 1, a report tabulating by race the number of*choice applications and transfer applications received for enrollmentin each grade in each school in the system, and the number of choicesand transfers granted and the number of denials in each grade of eachschool. The report shall also state any reasons relied upon in denyingchoice and shall tabulate, by school and by race of student, the num-ber of choices and transfers denied for each :rich reason.

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In addition, the report shall show the percentage of pupils actuallytransferred or assigned from segregated grades or to schools attendedpredominantly by pupils of a race other than the race of the applicant.for attendance during the 19G6 -67 school yea'', with comparable datafor the 196 -66 school year. Such additional information shall be in-chided in the report served upon opposing counsel and filed with theClerk of the Court.

(2) Report After School Opening. The defendants shall, in additionto reports elsewhere described, serve upon opposing counsel and filewith the Clerk of the Court within 15 days after the opening of schoolsfor the fall semester of each year, a report setting forth the followinginformation

(i) The name, address, grade. school of choice and school ofpresent attendance of each student who has withdrawn or re-quested withdrawal of his choice of school or who has transferredafter the start of the school year, together with a description ofany action taken by the defendants on his request. and the rea-sons therefor.

(ii) The number of faculty vacancies, by school, that have oc-curred or been filled by the defendants since the order of thisCourt or the latest report submitted pursuant to this subpara-graph. This report shall state the race of the teacher employed tofill each such vacancy and indicate whether such teacher is newlyemployed or was transferred from within the system. The tabu-lation of the number of transfers within the system shall indicatethe schools from which and to which the transfers were made.The report shall also set forth the number of faculty membersof each race assigned to each school for the current year.

(iii) The number of students by race, in each grade of eachschool.

EXMANATORY LETTER

(School System Name and Office Address)(Date Sent)

DEAR PARENT:All grades in our school system will be desegregated next year. Anystudent who will be entering one of these grades next year may chooseto tend any school in our system, regardless of whether that school

W ormerly all-white or all-Negro. It does not matter which schoolyour child is attending this year. You and your child may select anyschool you wish.

Every student, white and Negro, must make a choice of schools. Ifa child is entering the ninth or higher grade, or if the child is fifteenyears old or older, he may make the choice himself. Otherwise a par-ent or other adult serving as parent must sign the choice form. Achild enrolling in the school system for the first time must make achoice of schools before or at the time of his enrollment.

The form on which the choice should be made is attached to thisletter. It should be completed and returned by June 1,1967. You maymail it in the enclosed envelope, or deliver it by messenger or-by handto any school principal or to the Office of the Superintendent at anytime between May 1 and June 1. No one may require you to return

73

your choice form before June 1 and no preference is given for return-ing the choke form early.

No principal, teacher or other school official is permitted to influenceanyone. in making a choice or to require early return of the choiceform. No one is permitted to favor or penalize any student or otherperson because of it choice made. A. choice once made cannot bechanged except for serious hardship.

No child will be denied his choice unless for reasons of overcrowd-ing at the school chosen, in which case children living nearest theschool will have preference.

T.ransportation will be provided, if reasonably possible, no matterwhat school is chosen. [Delete if the school system does not providetransportation.]

Your School Board and the school staff will do everythinfr we canto see to it that the rights of all students are protected and that de-segregation of our school's is carried out succesfully.

Sincerely yours,Superintendent.

CHOICE Font

This form is provided for you to choose a school for your child to at-tend next year. You have 30 days to make your choke. It does notmatter which school your child attended last year, and does not matterwhether the school you choose was formerly a white or Negro school.This form must be mailed or brought to the principal of any school inthe system or to the office of the Superintendent, [address], byjune 1,1967. A choice is required for each child.Name of child

(Last) (First) (Middle)AddressName of Parent or other

adult serving as parentIf child is entering first grade, date of birth :

Grade child is enteringSchool attended last yearChoose one of the following schools by marking an X beside the

name.

(Month) (Day) (Year)

Name of School Grade Location

SignatureDate

To be filled in by Superintendent :School Assigned I

In subsequent years the dates in both the explanatory letter and the choice form shouldbe changed to conform to the choice period.

74'

APPENDIX B-RATE OF CHANGE AND STATUS OF DESEGREGATION

(Leeson, Faster Pace, Scarcer Records, Southern Education Report28-32 (Jan.-Feb. 1966), quoted in Emmerson and Huber, Politicaland Civil Rights in the *lilted States, 695-99 (1967) )

44. Both- the 11-State Southern area and the border area, the latterconsisting of six states and the District of Columbia, experienced asharper increase in the percentage of Negroes in desegregated schoolsfor 1965-66 than in previous years. But only the Southern Statesshowed a changed attitude toward reporting records by race; in onlythree Southern states could nearly complete statistics be obtaineddistrict by district. As in other years three of the border states plusthe District of Columbia continued to keep records by race, and threestates did not.

Correspondents for Southern Education Reporting Service... foundthat 15.89 per cent of the Negroes enrolled in the public schools of theregion attended classes with whites, mostly in formerly all-whiteschools but sometimes also in formerly all-Negro schools. This nuin-bered 567,789 Negro students out of the region's Negro enrollment of3,572.810.

In the first 10 years after the Supreme Court decisions on segregatedschools, in 1954 and 1955, the Southern and border region increased thenumber of-Negroes in schools with whites at an average of about onepercent a year. Although the impetus of the Supreme Court's rulingsand the possibility of direct involvement in legal action were factorsmost districts, desegregated through last year acted "voluntarily" andonly about 10 per cent required a specific court order. By the end ofthe 1964-65 school year, the region had enrolled 10.9 per cent of itsNegro students in biracial classrooms: --

The 1964 Civil Rights ACt brought presiure on every district in thenation but the compliance effort admittedly was concentrated on theSouth ... Beginning in the spring of 1965 and continuing even throughthe first months of the 1965-66 school year, HEW's Office of Educa-tion negotiated with officials in each district to obtain compliance bythe school officials either signing a statement, submitting a court-ordered desegregation plan or adopting a voluntary plan.

With the new school year, the region had increased the number ofNegroes in desegregated schools by five percentage points to reach15.9 per cent, while in the previous two school years the rate of increasein this figure had only been between one and two perCentage points.For 1964-65, the region had 10.9 per cent of the Negro enrollment indesegregated schools, an increase of 1.7 percentage points over 1963-64,and for that year the 9.2 per cent figure was an increase of 1.2 percent-age points over 1962-63. (See Table 1.)

?ABLE 1,-THE RATE OF CHANGE, PERCENTAGE OF NEGROES IN SCHOOLS WITH WHITES

SouthPercentchange Border

Percentchange Region

Percentchange

School year:1959-601 ...... .-. 0.160 45.4 6.41960-61 .162 0.002 49.0 3.6 7.0 0.61961.62 .241 .079 52.5 3.5 7.6 .61962-63 .453 .212 51.8 .7 8. 0 .41963-64... - 1.17 .717 54.8 3.0 9. 2 1.2196465 2.25 1.08 58.3 3.5' 10.9 1.71965-66. 6.01 3.76 68.9 10.6 15.9 5.0

1st school year in which SERS began recording number of Negroes in schools with whites.

...

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Up through the 1902-63 school year, the 11 Southern states togetherhad fewer than one per cent of their Negro students in schools withwhites. In 1963-04, the figure passed the one per cent mark and italmost doubled for 1964-65 to become 2.25 per cent of the Negroes inbiracial schools, an increase of more than one percentage point. For the1965-66 school year, the percentage more than doubled and reached6.01 percent.'

The six border states and the District of Columbia desegregated at afaster rate than did the South, and by the 1961-62 school year that areahad more than half of its Negro enrollment attending desegregated

ischools. The annual change in the number of Negroes in desegregatedborder schools averaged about three per cent a year, and by 1964-65,the border area had desegregated 58.3 per cent of its Negro enrollment;In the current school year, the border area has 68.9 per cent of its Negrostudents attending the same schools with whites, a jump of over 10percentage points from the previous year's figure.

This year, as in previous years, a disparity exists between whatmight be called "technical" desegregation and '`actual" desegrega' tion.Last year, for example, 56 per cent. of the region's Negro students were

ienrolled in districts having desegregation policies, but about 11 percent of the total Negro enrollment attended desegregated schools. Thisyear, the region has 97 per cent of its districts in official compliancewith federal desegregation regulations, and 93 per cent of the region'scombined Negro and_white enrollment collies from these districts.However, the actual attendance of Negroes in desegregated schoolsamounts to almost 16 per rent. The difference in these figures was accen-tuated this year by the fact that almost 2,000 school districts havingeither all-white or all-Negro enrollments are included in the "in com-pliance" statistics. . . .

Among the Southern states, Texas leads in the number and percent-age of Negroes in schools with whitesan estimated 60,000 Negroes or17 per cent of the state's Negro enrollment. TennesseA ranks second inthe area with 16 per cent and Virginia third with 11 per cent. Threestates Alabama, Louisiana. and AIississippicontinue to have lessthan one per cent of their Negro enrollment attending schools withwhites. The other Southern statesArkansas, Florida, Georgia, NorthCarolina and South Carolinavary between 1 and 10 per cent of theirNegro students in biracial classrooms.

All but one of the border states have more than half of their Negroenrollments in desegregated schools. Oklahoma has 38 per cent of itsNegroes in biracial schools, aryland has 56 percent, and Delaware,the District of Columbia, Kentucky, . . . Missouri and West Virginiahave desegregated more than three-fourths of their Negro student pop-ulation. . . .

I Other estimates are summarized in Report of the United States Commission on C1;11Rights. Survey of School Desegregation in the Southern and Border States 1985-88, 27-28(Feb. 1980

. The Once of Education based on a sampling of 590 districts through a telephonesurvey conducted in cooperation with State departments of education, estimates that216.000. or 7.5 percent. of the Negro students In the 11 Deep South States are enrolled Inschool this year with white pupils. (Office of Education, telephone survey. Table I, Sept. 27,1985.1 Civil rights organizations, relying upon figures obtained from a variety of sources,including field workers, advance a lower figure. The Southern Regional Council's estimateis 151,416 Negro pupils, or 5.23 percent of the total. ((Southern Regional Council, 'SchoolDesegregation Old Problems Under a New Law' 9. ge pt. 1985.) The American FriendsService Committee and NAACP Legal Defense and Educational Fund agree that the actualfigure is less than 6 per cent (American Friends Service Committee and NAACP LegalDefense and Educational Fund, 'Report on the Implementation of Title VI of the CivilRights Act of 1964 In Regards to School Desegregation' 4, Nov. 15, 1985)."

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The desegregation statistic showing the sharpest increase this yearwas the nunar of districts with desegregation policies. The regionnow has 4,804 public school districts that ltave received approval fromthe IT. S. Office of Education for their desegregation proposals. Whenthe last school year ended, SEES reported that 1,476 districts haddesegregated in practice or in policy.

TABLE HL-STATUS OF DESEGREGATION (17 SOUTHERN AND BORDER STATES AND DISTRICT OF COLUMBIA)

School districts

Negro

Negroes in schoolswith whites

Total

WithNegroes

andMotes

compliIn

anted

Not in Enrollmentcoma- -----ince% White Number Percent?

Alabama 118 119 105 14 %559.123 4295,848 31.250 0.43Arkansas 410 217 400 10 4337.652 4111.952 34.900 4.38Florida 67 67 67 0 3 1. 056, 805 3256, 063

325.0009.76

Georgia 196 183 192 5 3 784.917 3 355,950 39.465 2.66Louisiana 67 67 33 34 483.941 318.651 2,187 .69Mississippi 149 149 118 31 309. 41 3 296.834 3 1. 750 .59North Carolina. 170 170 165 4 %828,638 %349.282 318.000 5.15South Carolina.. 108 108 86 21 374.107 263.983 3.864 1.46Tennessee.. 152 129 149 2 3 714 241 3 176. 541 28.801 16.31Texas 1.325 850 1.303 7 3 2. 136.150 3 349, 192 360.000 17.18Virginia 130 127 124 12 1757, 037 %239.729 3 27, 550 11.49- ---- -

2.8- 92 2.183 2.742 140South 8,34L924 3.014.025 182.767 COI

Delaware 85_..-

47.=- ..._,..-_-_-.-

59 86.041 20. 485 17.069 83.32District ot Columbia 1 1 1 15.173 128.843 109.270 64.81Kentucky 200 167 ^114 4 713. 451 4 59. 835 46.891 78.37Maryland 24 23 24 583.796 178, 851 99.442 55.60Missouri 1.096 3 212 675 843,167 105,171 3 79.000 75.12Oklahoma 1.046 323 1, 044 3 564.250 3 45.750 317.500 38.25West Virginia 55 44 55 3 425.097 319. $50 315.850 79.85

...._.-- .... . _ _ .. _ _..... -Border 2.480 817 2.062 1 230.965 558.785 385.022 68.90

Region....,-., 5.372 3.000 4.804 144 11.572.889 3. 572. 810 567.7f9 15.89

I The sum of adding the districts "in compliance" and "not in compliance" will not always equal the total numberof districts because the Office of Education reports a different number of districts from that of some of the State depart-ments of education.

2 The number of Negroes in schools with whites, compared to the total Negro enrollment.3 Estimated,4 1964-65.

COX, District Judgetdissenting :The majority opinion herein impels my dissect, with deference, to

its general theme, that precedent required the public-scools to mixthe races rather than desegregate quell schools by removing all effectsof state action which may have heretofore compelled segregation, so asto permit these schools to be operated upon a proper free choice plan.This Court has heretofore firmly and soundly (as' decision and notgratuitously) committed itself to the views expressed by the distill-cmislied jurists in Briggs v. Elliott. 132 Supp. 770. The majoritynow seeks to criticize the llviggs case and disparage it as dictum, al-though this Court in several reported decisions has embraced andadopted Briggs with extensive quotations from it as the decisional lawof this Circuit.. Surely, only two of the judges of this Court may notnow single-handedly reverse those decisions and change such law ofthis Circuit.

These school cases all stein front the decision of the Supreme Courtof the -United States in the familiar Brown eases: Xothing was said in

I Brown 1 /frown r. Board of Education of Topeka, 347 US 433, 74 S. Ct. 639, 9337:1.

Ilrown IT Brown c, Board of 2:duration of Topeka, Kansas. 349 U.S. 294, 75 S.Ct. 753,00 1083.

On Decenopr if, 1b1I5 in Patricia Rogow, et at r Edgar F. Paul, et al, 382 US 198. 80S. Ct. 358. the Court decried delays in desegregation of Public £4014)013 and culled for anceleration of the proe:.s, but neither saki nor intimidated the existence of any power orthe jiNTItientio: for ony authority to forcefully mix or integrate these schools.

77

those eases or has since been said by the Supreme Court to justify orsupport, the extremely harsh plan of enforced integration devised bythe majority decision. Significantly, there is nothing in the CivilRights Act of 1964 to suggest the propriety of this Court adopting ant'following any guidelines of the Health. Education and Welfare Com-missioner in these school desegregation eases in such respect. The policystatement of Congress as contained in the act itself expressly disclaimsany intention or purpose to do that which these guidelines, and themajority opinion approving them, do in complete disregard thereof.

No informed person at this late date would now argue with thesoundness of the philosophy of the Brown, decision. That case simplydeclared the constitutional right of negro children to attend publicschools of their own free choice without any kind of restraint. by stateaction. T,hat Court has made it clear that the time for "deliberate"speed in desegregating.these public schools has now expired, but themajority opinion herein is the first. to say that the Brown case, togetherwith the Civil Rights Act of 1964, makes it necessary that these publicschools must, now integrate and mix these ,,ehools and their facilities,"lock, stock and barrel." That view comes as a strange constructionof the Fourteenth Amendment, rights of colored children. The passageof time since the rendition of the Brown ease; and of natural dis-parities which are found in so many school plans before the Court ;and the difficult problems posed before the Court by such plans cer-tainly can provide no legal justification or basis for this extreme viewand harsh and mailed fist decision at this time. These questions in-volving principles of common sense and law are readily resolved by acourt of equity without being properly accused of giving an advisoryopinion. The decision in such case is not overtaxing on a court of equity

iand its articulated conclusions can be implemented by an enforceabledecree even at the expenditure of some well spent time, patience andenergy of the Court. If a Court is to write a decree, it, should be thedecree of that Court and not. the ny-product of some administrativeagency without. knowledge or sworn obligation to resolve sacred con-stitutional rights and principles. Unilaterally prepared guidelinesallegedly devised by the Commissioner may or not accord with his ownviews, but such an anomalously prepared document could noi: justifythis Court in adopting it "lock, stock and barrel" under any pretext andeven with repeated disavowals of such intention or purpose.

The Constitution of the United States is not the dead hand of thepast, strangling the liberties of a free people; it is a living documentdesigned for all time to perpetuate liberty, freedom and justice forevery person, your or old, who is born under or who comes within itsprotecting shield. As was said many years ago, "in moving water thereis life, in still waters there is stagnation and death." The Constitutionwas framed nct: for one era, but for all time. But when the Courts trans-form via!iility into elasticity, constitutional rights are. illusory. Therope of liberty may be twisted end become a garrote which stranglesthose who seek its protection. If the majority opinion in these eases ispermitted to stand, it will, in the name of protecting civil rights ofsome, destroy civil rights and constitutional liberties of all our citizens,their children and their children's children.

The Supreme Court, in Broten II. said that "school authorities havethe primary responsibility for elucidating, assessing and solving theseproblems; courts will have to consider hether the action of school

71- :243-72-1.1

78

authorities constitutes good faith implementation of the governingconstitutional principles." It thereupon became the duty of the Court,acting as a Court of Equity, under such principles to see that. publicschools, still operating under the dual system by state action, weredesegregated (not integrated) in accordance with the vested constitu-tional right of colored children. Judicial haste and impatience cannotjustify this Court in equating integration with desegregation. No Courtup to this time luiA been heard to say that this Court now has the powerand the authority to force integration of both races upon these publicschools without regard to any equitable considerations, or the will orwish of either race. The decisions of this Court deserve and umst havestability and integrity. It was the 1905 guidelines of IIEW that wereapproved by this Court in Derek Jerome Singleton r. Jackson Munie-i pal Separate School District. 255 FA 865. Judge Wisdom wrote forthe Court. and Judge Thornberry concurred in that case on January 26,1966: and there was not a word in that case to the effect that this Courtthen 'thought that any decision or statute or guidelines under anystatute required or justified forced integration. Almost before that slipopinion reae1ted the bound volume, this Court has now written on De-cember 29,1966, a vastly different opinion with no change interveningin the law.

The last reported school case from this Circuit, decided August 16,1966 by Judge Tuttle and Judge Thornberry in Birdie Mae Dag, etdi r. Board of School Commisstoners of Mobile County. et al, 364 F.2d896, this Court still v....ote of accelerating a plan of dediegregation, As ifto foreshadow the point of Judge Wisdom's "nettle" in the majorityopinion in this ease, Judge Tuttle wrote in his Note 1 an explanation ofhis changing requirements in these school cases for the delayed enjoy-ment of constitutional rights by accelerating desegregation. Davis saidthat negro children, as individuals, had the right to transfer to schoolsfrom which they were excluded because of theirrace, and said that thishad been the law since the Brown decision; but that misunderstandingof that principle was perhaps due to the popularity "ofan oversinwli-tied dictum that the Constitution does not require integration. Briggsv. Elliott ; 132 F. Supp. 776, 777." That is the first and only expressedcriticism of Briggs found among the decisions of this Circuit, but theCourt did not comment upon the viability and soundness of the manydecisions of this Circuit which wholeheartedly embraced and repeat-edly reaffirmed the so-called dicta in Briggs. Davis dealt with an urbanarea in Mobile. Alabama, while these cases deal with small communitiesor rural schools but that could have no possible bearing on desegrega-tion versus or as distinguished from immediate forced integration ormixing of these schools.

In Alfred Avery. Jr., a Minor by his Mother and Next Friend, Mrs.11 f red Avery, et al v. Wichita Independent School. District, et al, 241

F.2d 230 (1957), this Court said:"The Constitution as construed in the School Segregation Cases,

Brown v. Board of Education. 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed.873; Id., 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083, and Bofling v.Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884, forbids any state ac-tion requiring segregation of children in public schools solely on ac-count of race; it does not, however, require actual integration of theraces. As was well said in Briggs v. Elliott, D.C.E.D. S.C., 132 F. Supp.776,777 :

79.

"* * * it is important that we point out exactly what the SupremeCourt has decided and what it has not decided in this case. It has notdecided that the federal courts are to take over or regulate the publicschools of the states. It has not decided that the states must mix personsof different races in the schOols or must require them to attend schoolsor must deprive them of the right of choosing the schools they attend.What it has decided, and all that. it. has decided, is that a state may notdeny to any person on account of race the right to attend any schoolthat it maintains. This, under the decision of the Supreme Court, thestate nay not do directly or indirectly; but if the schools which it main-tains are open to children of all races, no violation of the Constitutionis involved even though the children of different races voluntarily at-tend different schools, as they attend different churches. Nothing in theConstitution or in the decision of the Supreme Court takes away fromthe people freedom to choose the schools they attend. The Constitution,in other words, does not require integration. It merely forbids dis-crimination. It does not forbid such segregation as occurs as the resultof voluntary action. It merely forbids the use of governmental powerto enforce segregation. The Fourteenth Amendment is a limitationupon the exercise of power by the state or state agencies, not a limita-tion upon the freedom of individuals."

Again, this Court in Hilda Ruth Borders, a Minor, et al v. Dr.Edwin L. Nippy, et al, 247 F.2d 268 (1957) said: "The equal pro-tection and due process clauses of the Fourteenth Amendment do notaffirmatively command integration, but they do forbid anv state actionrequiring; segregation on account of their race or color of children inthe public schools. Avery v. Wichita Falls Independent School District.5 Cm, 1957, 241 F.2d 230, 233. Pupils may, of course, be separated ac-cording to their degree of advancement or retardation, their abilityto learn, on accoineof their health, or for any other legitimate reasonbut each child is entitled to be treated as an individual without regardto his race or color."

In a public housing case, participated in by Judge Wisdom, QueenCohen ,v. Public HO-using Administration, 257 F.2d 73, it is said:"Neither the Fifth nor the Fourteenth Amendment operates positivelyto command integration of the races, but only negatively to forbidgovernmentally enforced searenation." .0

This Court in Sandra CritiaBoston. et al v. Pr. Edwin L. Ri ppy. etal. 285 F.2d 43, said : "Indeed, this Court has adopted the reasoning inBriggs 1. Elliott, D.C.E.D. S.C. 1955, 132 F. Stipp. 776, relied on bythe Sixth Circuit, and has further said: 'The equal protection and dueprocess clauses of the fourteenth amendment do not affirmativelycommand integration, but they do forbid any state action requiringsegregation on account of their race or color of children in the publicschools. Avery v. Wichita. Falls Independent School District. 5 Cir.,1957,241 F.2d 230, 233. Pupils may, of course, be separated accordingto their degree of advancement or retardation, their ability to learn,on account of their health, or for any other legitimate reason, buteach child is entitled to be this

race or color.' Borders v. R ppy, 5 Cir.,:1957, 247 F.2d 268. 271.area ed as an individual without rega rd to

"Nevertheles, with deference to the views of the Sixth Circuit, itseems to us4hat classification according to race for purposes of trans-fer is hardly less unconstitutional than such classification-for pur-poses of original assignment to a public school." It is that dedision in

SO

nriggs V. V11011. $1,1011,. which the majority here now seek to criticizeand repdiate.In /Mph Still. r/ Sifewomh-rhathano t'ounty Bord of Ella-eotion. et al, (5('A) 3:13 F.2d 55. 59. in footnote 2 it is said: ~Nocourt has required a 'compulsory racially integrated school system' toHMI- the COHStitilt101181 madate that there be no discrimination onthe Irasis of race in the operation of public schools. See Evers v.Jackson Municipal Separate School District. S Cir.. l!)64. 328 F.2d40g, aml cases there cited. The interdiction is against enforced racialsegregation. Incidental integration. of course. occurs through the

process of desegregation. Cf. Stone v. Board of Education of Atlanta.5 Cir.. 1962,309 F.2d 638."

This Court in Darirll Kengatta Evers. et al r. Jaeleson _MunicipalSeparate School Maria, 328 F.241 -108 (1961) said : "This is not toPay that the Fourteenth Amendment commands integration of theraces in the schools, or that voluntary segregation is not legally per-

_ tniible. See Avery v. Wichita Falls Ind. School Dist 5 Cir.. 1957. 241F.2(1230; Itippy v. Borders. 5 Cir., 1957.250 F.2d 690: Cohen v. PublicRaising Administration. 5 Cir.. 195g. 257 F2d 73. cert. den.. 35Sr.S. 928, 79 S.Ct. 315. 3 L.F.d. 2d 302: 'Holland v. Board of PublicInstruction. supra : and Shuttlesworth v. Birmingham Board of Edu-cation. supra. The Supreme Conrt-did not hold otherwise in Brownv. Board of Education. 1954.347 I--S. -183..71aCt. 686.98 L.Ed.T, sane teaching is expressed fit a park case from this Court. styledrIty of Montgomery. _Alabama r. Georgia Theresa Gilmore. 277 F.:21I361. In the manv eases from this Court involving the race issue inimblie schools (there being some forty-one of them according to themajority opinion). not one of them speaks of any requirement or dutyof the school to forcefully integrate the races, or to compel the racesto mix with each other in public schools: but every one of them speakof desegregid;ng such schools. The word desegregaie does not appear inWebster's New International Dictionary. Second .3dition, Edited in1950. But Webster's New Collegiate Dictionary (al r.erriam-Webster)defines de.s.pyregation : 'To free itself of any law. provision or prac-tice requiring isolation of the members of a particular race in separateunits. esiwcially in military serviceor in education."

In sum. there is no law to require one of these public schools to-integrate or force mix these races in public schools. But these publicschools. which have been heretofore segregated by state action, andoperate under a dual system. should be required to remove everyvestige of state influence toward segregation of the races in theseschools. and these colored children should be fully advised of theireonstitutional right to attendpublie schools of their choice. completelywithout regard to race. Many problem's exist and are created by theproper enforcement of desegregation plans Ilia. assure a fullsweep of roal freedom of ehoice to these negro eliildren, and this Courtcannot by only two of its members become impatient as trail-blazersand rewrite the decisional law of this Circuit as my good friends haveundertaken to do in this case.

Such a course would do violence to the ancient rule of Stare Decisis.In Donnelly Garment 17o. r. National Labor &lotions Board, (SCCA)123 F.2d 215: "It is a long- established rule that judges of the samecourt will not knowingly review. reverse or overrule each other'sdecisions. Shreve v. ChessmanS Cir., 69 F. 785. 790. 791; PlattnerImplement Co. v. International Harvester Co., S Cir., 133 F. 376, 378,

MIL The necessity of such a rule in the interest of an orderly adminis-tration- of justice is clear." In Sonford Napoleo» Powell r. CnitedStates. (7C 1) 33S F.2d 556 (19641. it is said: "Our decision in Lauerhas been criticized. However. this decision is the law of this Circuitunless and until this Court (presumably sitting en bane) woulddetermine -otherwise or unless higher authority might so determine."

Rule 25(a) of the Fifth Circuit provides. for a rehearing in anyease upon vote of a majority of the circuit judges in active servicefor any reason which appeals to theni to be sufficient in the particularcase. Ordinarily, a hearing or rehearing en ham is not ordered except"when necessary to secure or maintain uniformity or continuity in thedecisions of the court, etc." The majority opinion simply does not re-flect.the well considered and firmly stated composite decision of thisCircuit: and in that view. is not an accurate or proper statement ofthe law in this case as it now exists in the Fifth Circuit.The Rights Act of 1964 (4f 1958 ed., 9.000c-6) refersto "desegmation in public education" and not to forced mixing orintegration of the races. That same section states "provided that 'loth-hie herein shall empower any official or court of the United States tois:gleam- order seeking to achieve a racial balance in any school by re-quiring the transportation of pupilsor students from one school to an-other or one school district to another in order to achieve such racialbalance, or otherwise enlarge the existingpower of the court to insurecompliance with constitutional standards." The English language sim-ply could not be summoned to state any m're clearly than does thatvery positive. enactmenof Congress, that these so-called `;..ruidelines".ofilusadminiArative agency are not sacrosanct expositions of schoollaw (if so intended), but are actually -promulgated and being used inopposition to and in violation of this positive statute. Contrary to themajority opinion, it was never the intention or purpose of the Congressto constitute the Commissioner of Health. Education and Welfare asthe sidewalk superintendent of this Court in these school cases. On thecontrary, 42 U.S.C., 1958 ed., § 2000c-2 provides that the Commis-sioner. only upon-application of a school board, state, municipality,school district or other governmental unit, can render any technicalassistance to such an applicant. Nowhere in that act is it contem-plated that this court should abdicate its power and authority to actupon and decide a case on appeal to it as a court of equity, and simplydecide it by rubber stamping one of the annual guideline bulletins of anadministrative' bureau of the United States in Washington. Theattitude and position of this Court in:doing exactly that in this case isnot improved by disavowing any intention or purpose to do so.

There were seven consolidated eases before the Court which areembraced in this decision. Most, if not all, of the plans in those caseswere defective and needed updating for a more realistic and effectiveapplication of the free choice principle under the former decisions ofthis Court: but they did not need or deserve the harsh and unprece-dented treatment accorded these schools by the majority decision inthese cases. The colored children are not befriended and their lot is notimproved by this unprecedented majority opinion and the enti re schoolsystem will suffer under the impact of this' improvident administra-tive directive as thu adopted by this Court.

My *duty impels me to file this DISSENT to the majority view inthese cases with great deference to both of my distinguished associates.

UNITED STATES OF AMERICA AND LINDA STOUT, BY HER FATHER ANDNEST FRIEND, BLEW:\ STOUT, APPELLANTS,

17.

JEFFERSON COUNTY BOARD OF EDUCATION ET AL., APPELLEES.

UNITED STATES OF AMERICA, APPELLANT,

THE BOARD OF EDUCATION OP THE CITY OF FAIR1FIELD EF AL, APPELLEES.

UNITED STATES OF AMERICA', errELLAN-r,

V.

THE BOARD OF EDUCATION OF rim CITY OF BESSEMER ET AL., .r.rrELLE.

UNITED STATES OF AMERICA, APPELLA".:T,

V.

CADDO PARISI/ SCHOOL BOARD Er AL, APPELLEES.

UNITIZI STATES OF AMERICA, APPELLANT,

b.

THE BOSSIFA PARISH SCHOOL Bono Er AL., APPELLEES.

MAEosErr M. trornisos rr AL., APPELLANTS,

V.

JACKSON PARISH SCHOOL BOARD ET AL., APPELLEES.

YVORNLIA. DECAROL BANKS ET AL, APTELLANTS,.

V.

CLAIBORNE PARISH SCHOOL BOARD ET AL., APPELLEES.

JIMMY ANDREWS ET AL., APPELLANT,

CITY OF MONROE, LOUISIANA ET AL/ APPELLEES.

( S2 )

83

CLIFFORD EUGENE Davis, JR., LT AL., APPELLANTS,

V.

EAST BATON ROUGE PARISI' SCIIOOL BOARD ET AL., APPELLEES.

Nos. 23345, 23331, 23335, 23274, 23365, 23173, 23192, 23253, 23116.

United States Court of Appeals Fifth Circuit.

March 29, 1967.

Dissenting Opinion June 27, 1967.

Certiorari Denied Oct. 9,1967.

See 88 S.Ct. 72, 77._

School desegregation cases. The United States District Court forthe Northern District of Alabama, Se bourn H. Lynne, Chief Judge,and Harlan Hobart Grooms J., the District Court for the WesternDistrict of Louisiana, Benjamin C. Dawkins, Jr., Chief Judge, and theDistrict Court for the Eastern District of Louisiana, E. Gordon West.J., entered judgment from which appears were taken. The Court ofAppeals, Wisdom, Circuit Judge, 372 F.2d 836, reversed and re-manded. On petitions for rehearing, the Court of Appeals, sitting enbane

' adopted the majority opinion of the original panel, and heldthat school boards have an affirmative duty to bring about uitegrated,unitary- school systems. The Court overruled certain cases whichdistinguished between "desegregation" and "integration". It held thepercentages referred to in the decreewere intended as rules of thumbin measuring the effectiveness of freedom of choice school integrationplans.

The court reaffirmed the reversal of the judgments below and theremand of each case for entry of decreeattached to opinion.

Gewin, Griffin B. Bell and Godbold, Circuit Judges, dissented.1. Schools and School Districts .2=151

Negro school children must have equal educational opportunitieswith white children.2. Constitutional Law ts=)20

Boards and officials administering publicschools have the affirmat iveduty under the Fourteenth Amendment-to bring about an integrated.unitary school ss. tern in which thereare no unintegrated schools and infulfilling duty it is not enough for school authorities to offer Negrochildren Ow. OPhortunity to attend formerly all-white schools: over-ruling certain cases which distinguished between "desegregation" and"integration."U.S.C.A. Const. Amend.-14.3. Constitutioilal ti OF0220

Schools and 8600l Districts 0=43Necessity of overcomin6 effects of segregated school system requires

integration of faculties, facilities, and activities, as well as students.U.S.C.A. Const. Amend. 14.

.

'54

4. Schools and School Districts c=.154A school chili; has no inalienable right to choose his striated and a

freedom of choice desegregation plait is but one of the tools available toschool officials for converting dual system of schools for Negroes andwhites into a unitary systeni.5. Constitutional Law C=)224

Schools and School Districts c=,13Criterion for determining validity of provisions in school elt-egrega-

tion plan is whether provision is reasonably related to accomplishingobjective of converting dual system of separate schools for Negroesand whites into a unitary system. U.S.C.A. Const. Amend. 14.6. Constitutional Law c=9.20

Schools and School Districts 0=43Percentages referred to in HEW guidePnes and in judicial decree are

simply a rough rule of thumb for measuring effectiveness of freedomof choice as useful tool inconverting dual-system of separate schoolsfor Negroes and whites into a unitary system and are not a method forsetting quotas or striking a. balance, and if desegregation plan based onpercentages is ineffective, school officials charged with initiating andadministering- unitary system have not metthe constitutional reqUire-ments of the Fourteenth Amendment and should try other tools.U.S.C.A.Const. Amend. 14.

(=institutional Law (3.t.120Schools and School Districts 0=43HEW guidelines establish minimum standards for disestablishing

state-sanctioned segregation and meet the constitutional requirements.U.S.C.A.Const, Amend. 14.

__S. Constitutional Law c220Schools and School Districts c=4:1Courts the Fifth Circuit should give (meat weight to future PEW

guidelines in seeking to disestablish statesanctioned segregation inschool systems. U.S.C.A.Const. Amend. 14.No. 23345:

'Matron L. Weaver, U.S. Attv., Birmingham Ala., Norman C.Amaker, New:York City, David. L. Norman, Atty., Dept. of Justice,Washington, D.C., William a Some Jr., *Fiirminghani, Ala..Tohn Doer, Asst. Atty. Gen., Dept of Justice. Washington, D.C..Nicholas deB. Katzenbach, Atty. Gen., Brian K. Landsberg, LeroyD. Clark, Alfred Feinberg, New York City, Vernon Z. Crawford,Mobile, Ala., John H. Ruffin, Jr., Augusta, Ga., Howard Moore Jr., At-lanta, Ga., St. John Barrett, Joel M. Finkelstein, Charles R. Nesson,Mint Leifer...Attys., Dept. of Justice, Washington. D.C., Orzell Bill-ingsley, Jr., Birmingham, Ala. David H. Hood, Jr:, Bessemer, Ala.,Jesse N. Stone. Jr., Shreveport:La.. A. P. Tnyeaud, New Orkans,,La.,Johnnie Jones, Baton Rouge, La., Jack Greenberg, Jamr M. Nabrit,III, Michael Meltsner, Henry Aronson,- Charles' H. Jones, Jr., -NewYork City, Oscar W. Adams, Jr., Demetrius C. Newton, Birmingham,Ala., Shelia Rush Jones, Conrad K. Harper, Fred Wallace, New York

c

/4.

85

City., Gerald A. Smith, Baltimore, Md., of counsel, for appellantsand-Mtervenors.

Maurice F. Bishop, Birmingham, Ala., John C. Satterfield, YazooCity, Miss., for appellees.

.No:9.3331:Macon L. Weaver, U.S Atty., Demetrius C. Newton, Orzell Bill-

ingsley;-Jr., Birmingham. Ala., David L. Norman, Atty., Dept of Jus-tice, Washington, D.C., William G. Somerville, Jr., Birmingham, Ala.,John Boar Asst. Atty. Gen., Nicholas deB. Katzenbach, Atty. Gen.,Brian=K-Landsiferg, St, Johr Barrett. Elihu Leifer, Joel Finkelstein-Mt-Y-s.iDept.LofiTustice.Washington,D.C., Jack Greenberg, James M.Nabrit,-III, -:Michael -Meltsner, Leroy D. Clark, Norman C. Amaker,Alfred Feinberg, Henry Aronson, New York City. DavidIL Hood,Jr.. Bessemer. Ala., JeSse N. Stone Tr., Shreveport,I.a..A&P,Tureand,

New Orleans.-La., Vernon Z. Crawford, Mobile, Ala., OS-Car-W. "Adams,Jr.. BirMingham. Ala.. Johnnie Jones, Baton Rouge, La.. John H.Ruffin, Jr.,- Augusta, Ga., Howard Moore, Jr., Atlanta, Ga., SheilaRush Jones, Conrad k Harper, Fred Wallace, New York City, GeraldA. Smith, Baltimore, Md...of-counsel; for appellants and intervenors.

Maurice F. Bishop, BiC:ningham, Ala., John C. Satterfield, YazooCity, Miss., for appellees.No. 23335 :

Micah L. Weaver U.S. Atty., Birmingham, Ala:, David L. Nor-maii- Atty., Dept. of Justice, Washington, D.C., Oscar W. Adams, Jr.,

William G. Somerville, Jr.. Birmingham, Ala., .Tolin Boar, Asst. Mtv.tn., Dept. of Justice. Rights Div.. Washington, D.C., Nicholas

cleB. T.C.atzenbach, Atty. Gen., St. John Barrett, Briaii K. Landsberg,Attys., Dept. of Justice, Washingtor:, D.C.. Elihu Leifer. Joel Finkel-stein; Attys., Dept. of Justice, Washington, D.C., Jack Greenberg.James M. Nabrit, HI, Michael'AfeltsneriLemy D. Clark. Norman C.AMaker, Henry Aronson, Charles II. Jones, Jr. Alfred Feinberg, NewYOrk City, David H. HOrd, Jr., Bessemer, Ala., Jesse N. Stone, Jr.,Shreveport, La., A. P. iiii.eaud New Orleans, La.. Vernon Z. Craw-tOrd. 491:4 Ala., Oscar W. Adams, Jr., Birmingham, Ala., DemetriusC. :Newton, OrZell Billingsley, Jr., Birmingham, Ala., .Tohnnie Jones,Baton Rouge, La:, John H. Ruffin, Jr., Augusta; Ga., Howard Moore,Jr., Atlanta, Ga., Sheila Rush Jones, Conrad K. Harper, Fred Wallace,New York City, Gerald A. Smith, Baltimore, Md., of counsel, for ap-.pelants End intervenors.

Reid B. Barnes, Birmingham, Ala., John C. Satterfield, Yazoo City,Miss., Lange, Simpson, Robinson & tSoMerville, :?n, Ala.,J. Howard MoEniry, Jr., McEniry, McEniry R McEniry, Bessemer,Ala., for appellees.No. 23274:

David L. Norman, Atty., Dept. of Justice, Washington, D.C., Nor-man C. Amaker, Charles H. Jones, Jr., New York City, A. P, Tureaud,New Orleans, La., John Doar, Asst. Atty. Gen., Dept. of Justice, CivilRights Div., Washington, D.C., Edward L. Shaheen, U.S. Atty., St.John Barrett, Alexander C. Ross, Elihu Leifer, Joel Finkelstein,Attys.,' Dept. of Justice, Washington, D.C., David H. Hood, Jr., Bes-

86

semer, Ala.. Jesse N. Stone, Jr., Shreveport, La.. Johnnie Jones. BatonRouge, La., Jack Greenberg James M. Nabrit. III, Michael Meltsner,Henry Aronson, New York City, Oscar W. Adams, Jr., Demetrius C.Newton, Birmingham, Ala., Leroy D. Clark, Alfred Feinberg, NewYork City, Vernon Z. Crawford, Mobile, Ala. John Ir. Ruffin, Jr., Au-gusta, Ga., Howard Moore, Jr., Atlanta, Ga.:Sheila Rush Jones, Con-rad K. Harper, Fred Wallace,'New ork City, Gerald A. Smith, Bal-timore, Md., of counsel, for appellants and intervenors.

William P. Schuler, 2nd Asst. Atty. Gen. of La., Arabi, La., John A.Richardson, Shreveport, La., Jack P. F. Gremillion, Atty. Gen. of La.,Louis H. Padgett, Dist. Atty., 26th Judicial Dist., Bossier City, La.,Fred L. Jackson, Dist. Atty., Second Judicial Dist., Homer, La., for.appellees.No. 23365:

David L. Norman, Atty., Dept. of Justice, Washington, D.C., JamesM. Nabrit, HI, New York City, John Doar, Asst. Atty. Gen., Dept.of Justice, Civil Rights Div., Washington, D.C., Edward L. Shaheen,U.S. Atty., St. John Barrett, Elihu.I. Leifer, Joel Finkelstein, Attys.,Dept. of Justice, Washington, D.C., Jesse N. Stone. Jr., Shreveport,La., Jack Greenberg, Norman C. Amaker, Michael Meltsner, Leroy D.Clark, New York City, David H. Hood, jr. Besssemer,Ala., Jesse N.Stone,,Jr., Shreveport, La., A. P. Tureaud:New Orleans, La., HenryAronson. Charles.H. Jones., Jr.. New York City, Vernon Z. Crawford,Mobile, Ala., Oscar W. Adams, Jr., Demetrius C. Newton, Birmingham,Ala.. Johnnie Jones, Baton Rouge, La., John H. Ruffin, Jr., Augusta,Ga.. Howard Moore, Jr., Atlanta, Ga., Conrad K. Harper, New YorkCity, Gerald A. Smith, Baltimore, Md., Alfred Feinberg, New YorkCity, of counsel, for intervenors and appellants.

J. Bennett Johnston, Jr., Shreveport. La., Jack P. F. Gremillion,Atty. Gen., State of La., Baton Rove, La., William P. Schuler, Asst.Atty. Gen., State of La., Louis H. Padgett, *Jr., Dist. Atty., BossierParish, La., Fred L. Jackson, Dist. Atty. Second Judicial Dist., Ho-mer. La., John A. Richardson, Dist. Atty., Judicial Dist., Shreve-port, La., for appellees.No. 23173:

Alvin J. Bronstein, Jackson, Miss., Harris David, New Orleans, La.,Carl Rachlin, New York City, David Norman; Atty., Dept.-of Justice,Washingtcn, D.C., John Doar. Asst. Atty. Gen., Dept. of Justice, CivilRights Div., Washington, D.C., Edward 1.. Shaheen, U.S. Atty., St.John Barrett, Frank M. Dmibaugh, Albert S. Pergam, Attys., Depart,ment of Justice, Washington, D.C:, Elihu Leifer, Joel Finkelstein,Attys.. Dept. of Justice, Washington,-D.C., Jesse N. Stone, Jr., Shreve-port. La., James Sharp, Jr., Monroe, La., William Q. Keenan, NewYork City, Robert F. Collins, Nils R. Douglas, Lolis E. Elie, NewOrleans, La., for appellants.

Fret L. Jackson. Dist. Attv., Homer, La., William H. Baker, :Tones-biro; La.. Teddy W. Airliart;Jr., .Asst. Atty. Gen. of La.. Baton Rouge,La., Jack P. F. Gremillion, Atty. Gen. of La., Baton Rouge,La. Louis H. Padgett, Jr., Dist. Atty., Twenty-Sixth JudicialBossier City, La., William Schuler, 2nd Asst. Atty. Gen. of La.,John A. Richardson, Dist. Atty., First Judicial Dist., Shreveport,La.,for appellees.

87

NO. 23192 :Alvin J. Bronstein, Jackson, Miss., Carl Rachlin, New Ye. .e City,

Harris David, Robert F. Collins, New Orleans; La., John Doar, Asst.Atty. Gen., Dept. of Justice, Civil Rights Div., 'Washington, D.C.,Edward L. Shaheen, Atty., St. John Barrett., David L. Norman,Elilm I. Leifer, Joel Finkelstein, Attys., Dept..of Justice, Washing-ton. D.C., Jesse N. Stone, Jr., Shreveport, La., JamesSharp, Jr., Mon-roe: La., William Q. Keenan, New York City, Robert F. Collins NilsR. Douglas, Lolis E. Elie; New Orleans, La., for appellants andintervenors.

'William P. Schuler, Arabi, La., Jack P. F. Gremillion, Atty. Gen.of La., Thomas McFerrin, Sr. Harrylixon, Jr., Asst.- Atty. Gen.,Baton Rouge, La. Fred L. Jackson, Homer, La., Teddy W. Airhart,Jr., Asst.Atty. Gen., Baton Rouge, La., Louis H. Padgett, Jr., List.Atty., Twenty-Sixth Judicial Dist., Bosier City, La., John A. Rich-ardson, Dist. Atty., First Judicial Dist., Shreveport, La., for appellees.No. 23253:

Alvin J. Bronstein, Jackson, Miss., Stanley E. Tolliver, Cleveland,Ohio, William Q. Keenan, New York City, James M. Nabrit, III, Newi

York City, Jesse N. Stone, Jr., Shreveport, La., James Sharp, Jr.;Monroe, La., Carl Rachlin, William Q. Keenan, New York City, Rob=ert F. Collins, Nils It Douglas, Lolis E. Elie, New Orleans, La., forappellant and intervenors.

William F. Pipes, Jr., Albin 'P. Lassiter, Dist. .Atty., Monroe, La.,Harold B. Judell, New Orleansl-La., William P. Schuler, Arabi, La.,for appellees.No. 23116:

A. P. Tureaud, New Orleans, -La., Norman C. A ranker James M.Nabrit, III, New York City, Michael Meltsner, Leroy D. dark, HenryAronson, Charles H. Jones, Jr., New York City, Alfred Feinberg,New York-City, David H.. Hood, Jr., Bessemer, Ala., Jesse N. Stone,Jr., Shreveport, La., A. P. Tureaud, New Orleans, La., Vernon Z.Crawford, Mobile, Ala., Oscar W. Adams, Jr., Birmingham, A:a.,Demetrius a Newton, Birmingham, Ala., Johnnie Jones, BatonRouge, La., John H. -Ruffin, Jr. Augusta, Ga., Howard Moore, ,Atlanta, Ga., Jack Greenberg New York City, Johnnie Jones, BatonRouge, La., Robert Belton, Conrad K. Harper, New York City, ofcounsel, for appellants and intervenors.

John F. Ward, Jr.; Baton Rouge, La., William P. Schuler, Arabi,La., Burton,, Roberts WaTd, Baton Rouge, La., for appellees.

ON PETITIONS FOR BEIIEARINV EN BANC.

Before Tumr. Chief Judge, and Bnowx, WISDOM, GEwIx, BELL,THORNBERRY, COLEMAN. GOLDBERG, AINSWORTH, GODBOLD, DYER andSIMPSON, Circuit Judges.

PER CURIAM:1. The Court sitting en bane adopts the opinion and decree filed in

these cases December 20, 1966, subject to the clarifying statements inthis opinion and the changes in the decree attached to this opinion.

[1] 2. School desegregation cases involve more than a dispute be-tween certain Negro children and certain schools. H Negroes are everto enter the mainstream of American life, as school children they musthave pal educational oppoitunities with white children.

88

[2, 3] 3. The Court holds that boards and officials administering pub-lic schools in this circuit I have the affirmative duty under the Four-teenth Amendment to bring about an integrated, unitary school'systemin which there are no Negro schools and no white-schoolsjust schools.Expressions in our earlier opinions distinguishing between integrationand desegregation 2-must yield to this affirmative duty we now recog-nize. In fulfilling this duty it is not enough for school authorities tooffer Negro cLildren the opportunity to attend formerly all-whiteschools. The necessity of overcoming the effects of tha dual schoolsystem in this circuit requires integration of faculties, facilities, andactivities, as well as students. To the extent that earlier decisions of thisCourt (more in the language of the opinions, than in the effect of theholdings) conflict with this view, the decisions are overruled. We referspecifically to the cases liSted 4*. footnote 3 of this opinion.3

[4, 5] 4.= Freedom of choice is not a goal in itself. It is a means to anend. A schoolchild has no inalienable right to choose his school. A free-dom of choice plan is but one of the tools available to school officials.atthis stage of the process of converting the dual, system of separateSchools for Negroes and whites into a unitary system. The go'vern-mental _objective of this conversif.n. _ , educational opportunities onequal terms to all. The criterion for determining. the validity of a provision in a school desegregation Plan is whether the provision is reason-ably related to accomplishing this objective.

[6] 5. The nercentages referred to in the Guidelines and in thisCourt's decree are simply a rough rule of thumb for measuring theeffectiveness of freedoin of choice as a useful tool. The percentages arenot. a method for setting" quotas or-striking a balance. If the plan isinoffectivet longer on promises than performance, the school officialscharged with initiating and administering a unitary system have notmet the constitutional requirements of the Fourteenth Amendment;they should try other tools.

8] 6. In constructing the original and revised decrees, the Courtgave great weight to the 1965 and 1966 HEW Guidelines. TheseGuide-lines establish minimum standards clearly applicable to disestablishingstate-sanctioned segregation. These Guidelines and our decree arewithin tht4'-decisions of this Court, comply with the letter and spirit ofthe Civil Rights Act of 1964, and meet the requirere^nts of the United

1"In the South", as the Civil Rights CommisSiOn has pointed out, the Negro "hastruggled.,toget !into the neighborhood school. In-the North, he is fighting to get out of it."Cfc.RtsComm.Rep., Freedom to the Free. 207 (1963).This Court did not "excuse" neighborhood schools in the North and West which havede facto segregation. No case involving that sort of school system was before the CourLSchool segregation is "inherently unequal" by any name and wherever located. But defacto segregation resulting from residential patterns in a nonracially motivated neighbor-hood school system has problems peculiar to such a system. The school system is alreadya unitary one. The difficulties lie in finding state action and in determining how far schoolofficials must go and how far they may go in correcting racial imbalance. In such casesShelley v. Kraemer, 334 U.S. 1, OS S.Ct. 836. 92 L.Ed. 1161 (1948) may turn out to be asimportant as Brown. A broadbrusli doctrinaire approach, therefore, that Brown's abolitionof the final gehool system solves all problems Is conceptually and pragmatically inadequatefor dealing with de factosegregated neighborhood schools.We leave the problems of de facto segregation in a unitary system to solutton in appro-priate cases by the appropriate courts.This distinction was first expressed in Briggs v. Elliott, E.D.S.C.11955. 132 F. Stipp. no:"The Constiiution, in other words, does mit require integration. It merely forbids dis-crimination."Avery v. Wichita Fails Independent School District. 1956, 241 F2d 230: Borders v.Rippy. 1957, 247 F.2d 268; Rippy v. Borders. 3957. 250 F.2d 690; Cohen v. Public HousingAdministration, 1958, -257 11.2d 73: City of Montgomery, Ala. v. Gilmore, 1960, 277 F.2d364: Boson v, Rippy 1960, 285 F.2d 43; Steil V. Savannah-Chatham County Board ofEducation. 1964, 333 F.2d 55 ; Evens v. Jackson Municipal Separate School District. 1964,328 F.2d 408; Lockett v. Board of Education of Muscogee County, 1985, 842 F.2d 225.

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States Constitution. Courts in this circuit should give great weight tofuture HEW Guidelines, when such guiddines al applicable to thiscircuit. and are within lawful limits. We express no opinion as to theapplicability of HEW Guidelines in racially Unbalanced situationssuch as occur in some other circuits where it is' contended that stateaction may be found in state tolerance of de facto segregation or m suchaction as the drawing of attendance bonndarks based on a neighbor-hood school system.

The Court reaffirms the reversal of the judgments below and theremand of each case for entry of the decree attached to this opinion.

The mandate n ill issue immediately.

CORRECTED DECREE

Tt is ORDERED, ADJUDGED and DECREET) that the defend-ants, their agents, officers, employees and successor; a ;.d all those inactive concert and participation with them, be and they are perma-nently enjoined from discriminating on the basis of race or color in theoperation of the school system. As set. out more particularly in the bodyof the decree, they shall take affirmative action to disestablish all schoolsegregation and to eliminate the effects of the dual school system

ISPEED OF DESEGREGATION

Commencing with the 1967-68 school year, in accordance with thisdecree, all grades, including kindergarten grades, shall be desegregatedand pupils assigned to schools in these grades without regard to race orcolor.

IIExmcisE_or_CnorcnThe following provisions shall apply to all grades :

(a) Who May Exercise Choice. A choice of schools may be exercisedby a parent or other adult persOn serving as the student's parent. A stu-dent may exercise his own choice if lie (I) is exercising a choice for theninth or a higher grade, or (2.) has reached the age of fifteen at thetime of the exercise of choice. Such a choice by a student is controllingunless a different choice is exercised for him by his parent or otheradult person serving as his parent during the choice period or at suchlater time as the student exercises a choice. Each reference in this de-cree to a student's exercising a choice means the exercise of the choice,as appropriate, by a parent or. such other adult, or by the studenthimself.

(b) Annual Exercise of Choice. All students, both white and Negro,shall be required to exercise a free choke of schools annually.

-(c) Choice Period. The.period for exercising choice shall commenceMay 41967 and end June 1, 1967, and in subsequent years:shall corn-thence March 1 and end March 31 preceding the school year for whichthe choice is to be exercised. No student or prospective student whoexercises his choice within the choice period shall be kiven any pref-erence because.of the time within the period when such choice wasexercised.

(d) Mandatory Exercise of Choice. A failure to exercise a choicewithin the choice period shall not preclude any student from exercis-ing a choice at any time before he commences school for the year

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with respect to which the choice applies. but such choice may besubordinated to the choices of students who exercised choice beforethe expiration of the choice period. Any student who has not exer-cised his choice of school within a. week after school opens shall beassigned to the school nearest his home where space is available understandards for determining available space which shall be applieduni fermly throughout the system.

(e) Public Notice. On or within a week before the date the choiceperiod opens, the defendants shall arrange for the conspicuous publi-cation of a notice describing the .prmisions of this decree in the news-paper most generally circulated in the community. The text of the no-tice shall be substantially similar to the text of time explanatory lettersent home to parents. Publication as it legal notice will not be suffi-cient. Copies of this notice must also-be given at that time to all radioand television stations located in the community. Copies of this decreeshall be posted in each school in the school system and at the office of theSuperifitendent of Education.

(f) Mailing of Explanatory Letters and Choice Forms. On the firstday of the choice period there shall be distributed by first-class mail anexplanatory letter and a choice form to the parent (or other adultperson acting as parent, if known to the defendants) of each student,together with a return envelope 'a4dressed to the Superintendent.Should the defendants satisfactorily demonstrate to the court thatthey are unable to comply with the requirement of distributing the ex-planatory letter and choice form by first-class mail, they shall proposean alternative method which will maximize individual notice, e.g., per-sonal notice to parents by delivery to the pupil with adequate proce-dures to insure the delivery of the notice. The text for the explanatoryletter and choice form shall essentially conform to the sample letterand choice form appended to this decree.

(g) Extra Cores of the Explanatory Letter and Choice Form. Ex-tra copies of the explanatory letter and choice form shall be freelyavailable, to parents, students, prospective students, and the general-public at each school in the system and at the office of the Superin-tendent of Education during the times of the year when such schoolsare usually open.

(h) Content of Choice Form. Each choice form shall set forth thename and location and the grades offered at each school and may re-quire of the person exercising the choice the name, address, age ofstudent, school and grade currently or most recently attended by thestudent, the school chosen, the signature of one parent or other adultperson serving as parent, or when- appropriate the signature of thestudent, and the identity of the person signing. No statement of reasonsfor a particular choice, or any other information, or any witnesses orother authentication, may be required or reqiiested, without approvalof the court.

(i) Return of Choice Form. At the option of the person completingthe choice form, the choice may be returned by mail in person, or bymessenger to any school in the- school system or to the office of theSuperintendent.

(j) Choices not on Official Form,. The exercise of choice may alsobe made by the submission in like manner of any other writing whichcontains information sufficient to identify the student and indicatesthat lie has Made a choice of school. .

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(k) Cho;re Forms Binding. When a choke form has once been sub-mitted and the choice period has expired, the choice is binding forthe entire school year and may not be changed except incases of parentsmaking different choices from their children under the conditions setforth in paragraph II (a) of this decree and in exceptional easeswhere, absent the consideration of race, a change is educationallycalled for or where compelling hardship, is shown by the student. Achange in family residence from or neighborhood to another shallbe considered an exceptional case for purposes of this paragraph.

(1) Preference in Assignment. In assigning students to schools, nopreferences shall be given to any student for prior attendance at aschool and, except with the approval of court in extraordinary cir-cumstances. no choice shall be denied for any tason other than over-crowding. In case of overcrowding at any school, preference shall begiven on the basis of lhe proximity of the school to the homes of thestudents choosing it, without regard to race or color. Standards fordetermining overcrowding shall be applied uniformly throughout thesystem.

(m) Second Choice where Firat Choice is Denied. Any student whosechoice is denied must be promptly notified in writing and given hischoice of any sc11col in the school system serving his grade level wherespace is available. 'ihe student shall have seven days from the receiptof notice of a denial of first choice in which to exercise a secondchoice.

(n) Transportation. Where transportation is generally provided,. buses hinst be reins to_the maximum extent feasible in light of thegertialiliie distribution of studdhts, so as to serve each student choosingany school in the system. Every student choosing either the formerlywhite or the formerly Negro school nearest his residence must betransported to the school to which he is assigned under these provi-sions, whether or not it is his first choice, if that school is sufficiently

-distant-from his home to make him eligible for transportation undergenerally applicable transportation rules.

(o) Of ictals not to Influence Choice. At no time shall any official,teacher, or employee of the school stern influence any parent. orother adult person serving as a parent, or any student, in the ex rciseof a choice or favor or penalize any person because of a choice r lade.If the defendant school board employs professional guidance counsel-ors, such persons shall base their guidance and counselling on the indi-vidual student's .particular personal, academic, and vocational needs.Such guidance and counselling by teachers as well as professionalguidance counsellors shall be available to all students without regardto race or color.

(p) Protection of PC1'80n8 Exercising Choice. Within their authorityschool officials are responsiblefor the protection of persons exercisingrights under or otherwise affected by this de= ^e. They shall, withoutdelay, take appropriate action with regard to any student or staffmember who interferes with the successful operation of the plan. Suchinterference shall include harassment, intimidation, threats,

notwords or acts, and similar behavior. The school board shall not pub-lish, allow, or cause to be published, the names or addresses dpupilsexercising rights or otherwise affected by this decree. If officials ofthe school system are not .able to provide sufficient protection, theyshall seek whatever assistance is necessary from other appropriateofficials.

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IIIPaosrEcTivr. Sivimyrs

Each prospective new student shall be required to exercife a choiceof schools uefore or at the time of enrollment. All such studentsknown to defendants shall be furnished a copy of the prescribed letterto parents, and choice form, by mail or in person, on the date, the choiceperiod opens or as soon thereafter as the school system learns that heplans to enroll. Where there is no pre - registration procedure for newlyentering students, copies of the choice forms shall be. available at theOffice of the Superintendent and at each school during the time theschool is usually open.

IVTRANSFERS

(a) Transfers for Studenta. Any student shall have the right at thebeginning of a new term. to transfer to any school from which he wasexcluded or would otherwise be excluded on account of his race orcolor.

(b) Transfer* for Special 'Weds. Anv student who requires a courseof study not offered,at the s, ooh to which he has been assigned mayhe permitted, upon his written application, at the beginning of anyschool term or semester, to transfer to another school which offerscomes for his special needs.

(c) Trans furs to Speeialielakses or Schools. If the. defendants oper-ate and maintain special classes or schools for physically handicapped.mentally retarded. or gifted children, Ole defendants limy assign chil-dren to such schools or classes on a basil, related to the function of thespecial class or school that is other than freedom of choice. In no eventshall such assignments be made on the basis of me or color or in amanner which tends to perpetuate a dual school system based on raceor color.

VSEnvias, FAcitir.s, Arrivims AND Pnomrs

No student shall be segregated or discriminated against on n'countof race or color in any service, facility, activity, or program (includingtrim )ortatic athletics, or other extracurricular activity) that maybe conducted or sponsored by the school in which he is enrolled. A.stndent attending school for the first time on a desegregated basis maynot be subject to any disqualification or waiting period forpartidipa-t ion in activities and programs. including. athletics. which might other-wise apply because, he is a transfer or newly assimied student exceptthat sucl transferees shall be subject to longstanding, non-raciallybased rules of city. county, or state athletic. Associations dealing withthe eligibility of transfer students for athletic contests. All schooluse or school-sponsored use of athletic fields. meeting rooms. and allother school related 'services, facilities. activities. and programs suchas commencement exercises and 'parent-teacher meetings which areopen to persons other than enrolled students. shall be open to all per-sons without regard lo race or color. All special educational programsconducted by the defendants shall be conducted without, regard to raceor color.-

VISCHOOL EQUALIZATION

.(a) !Dferior Schools. In schools heretofore maintained for Negrostudents. the defendants shall take prompt steps necessary to- pmvidephysical facinties, equipment, courses of instruction, and instruc-

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tional-materials of quality equal to that provided in schools previouslymaintained for white students. (*traditions of overcrowding, as deter-mined by pupil-teacher ratios and upil-classroom ratios shall, to theextent feasible, be distributed evenly between schools formerly main -tained for Negro students and those formerly maintained for whitestudents. If for any reason it is not feasible to improve sufficiently anyschool formerly miantained for Negro students, where such improve-ment. would otherwise be required by this paragraph. such school eilhe closed as soon as po%ible. and students enrolled in the school shall bereassigned on the basis of freedom of choice. By October of each year,defendants shall report to the Clerk of the Court pupil-teacher ratios,pupil - classroom ratios. and per-papil expenditures both as to oper-ating and capital improvement casts, and shall outline the steps to betaken and the time within which they shall accomplish the equalizationof such schools.

(b) llesnedia Frog/wink The defendants shall pmvide remedialeducation pro!yrams which permit. students attemigt# or who havepreviously attended segregated schools to overcome past inadequaciesin their education.

Coss-rnrcriox

The defendants, to the extent consistent with the proper operation.of the school system as a whole, shall locate any 'rim- school and sub-stantially expand any existing sehools.with the objective of eradicatingthe vestiges of the dual system.

3so STArr

(a) Faculty Employment. Race or color shall not be to factor jnthe hiring. as reassignment, promotion, demotion, or dis-inksal 'of teachers and other professional staff members, includingstudent teachers. except. that. rt -e may be taken into amount for Oisepurpose of comiteractinr- or correcting the effect of the segregatedremignment of fertility and staff in the thud system. Teachers. 'win=eiprils, and staff members shall be assigned to sell of:4sso that the facultyand stair is not composed exclusively-of members of one race. Where-ever possible. teachers shall be 14..i!rtred so that more than one teacherof the minority race (white or Negro) shall be on a desegregatedfaculty, Defendants shall take positive and affirmative steps to accom-plish the desegregation of their school faculties and to achieve sub-stantial desegregation of faculties in as many of the schools as possiblefor the 1967-6 school rear. notwithstanding that teacher contractsfor the 1967-6'S or school years may have already been signedand approved. The tenure of teachers in the system shall not be usedas an excuse for faihire to comply with this provision. The defendantsshall establish as an objective that the pattern of teacher assignmentto any particular school not be identifiable as tailored for a heavyconvent rat ion of either Negro or white !moils in the school.

(b) Pi4inisw1N. Tachers-. and other professional staff members maynot be discriminatorily assigned, dismissed, demoted, or passed overfor retention. promotion. or rehirin:r, on the ground of race or color.In any instance where one or more teachers or otWr professionalstaff members are to be displayed as a result of desegregation, no staffvacancy in the school system shall be filled through recrutitment from

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outside the system unless no such displaced staff member is qualified to -till the vacancy. If as a, result of desegregation, there is to be a reduc-tion in the total professional staff of the school system, the qualifiea-tions of all staff members in the system shall be evaluated in selectingthe staff member to be released-without consideration- of-race -or color.A report containing any such proposed dismissals, and the reasonstherefor. shall be filed with the Clerk of the Court, serving copies uponopposing counsel, within five (5) days after such dismissal, demotion,etc., as proposed.

(c) Pa.st Asaignments. The defendants shall take steps to assign andreassign teachers and other professional staff members to eliminate theeffects of the dual school system.

IX Rr.rowrs T- ME COURT

(1) Report on Choice Period. The defendants shall serve upon theopposing learties and file with the Clerk of the Court on or beforeApril 15,1967. and on or before June 15.1967, and in each subsequentyear on or before .Tune 1, a report tabulating by race the number ofchoice applications and transfer applications received for enrollmentin each grade in each school in the system. and the number of choicesand transfers granted and the number of denials in each grade of eachschool. The report shall also state any reasons relied upon in denyingchoice and shall tabulate. by school and by race of student, the num-ber of choices and transfers denied for each reason.

In addition. the report shall show the percentage of pupils actuallytransferred or migned from segregated grades or to schools attendedpredominantly br pupils of a race other than the rave of the applicant,for attendance during the 196647 school year, with comparable datafor the 1965-66 school year. Such additional information shall be in-eluded in the rt;port served upon opposing counsel and filed with theClerk of the Court.

(2) Report After School Opening. The defendants shall, in addi-tion to reports elsewhere described, serve upon opposing counsel and filewith the Clerk of the Court within 1 days after the opening of schoolsfor the fall semester of each year, a report setting forth the followinginformation :

(i) The name, address, grade, school of choice and school of pres-ent attendance of each student who has withdrawn or requestedwithdrawal of his chOiCe of school or who has transferred after thestart of the school year, together with a description of any actiontaken by the defendants on his request and the reasons therefor.

(ii) The number of faculty vacancies, by school, that have oc-curred or been filled by the defendants since the order of thisCourt or the latest report submitted pursuant to this subparagraph.This report shall state the race of the teacher employed to fill eachsuch money and indicate whether such teacher Is newly employedor was transferred from within the system. The tabulation of thenumber of transfers within the system shall indicate the schoolsfrom which and to which the transfers were made. The report shallalso set, forth the number of faculty members of each race assignedto each school for the current year.

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(iii) The number of students by race, in each grade of eachschool.EXIIANATQRY LEITER

(School System Name and Office Addres.$)(Date Sent)Dear Intrent :

All grades in our school system will be desegregated next year. Anystudent who will be entering one of these grades next year may chooseto attend any school in our system, regardless of whether that schoolwas formerly all-white or all-Negro. It does not matter which schoolyour child is attending this year. You and your child may select anyschool you wish.

Every student, white and Negro, must_ make a choice of schools.If a child is entering the ninth or higher grade, or if the child isfifteen years old or older, he may make the choice himself. Otherwiea-parent or other adult serving as parent must sign the choice form. ,tchild enrolling in the school

servingfor the first time must make achoice of schools before or at the time of his enrollinent.

The form on which the choice should be made is attached to this let-ter. It should be completed and returned by June 1. 1967.- You maymail it in the enclosed envelope, or deliver it. by messenger or by handto any school principal or to the Office of the Superintendent at anytime 'between 3fav 1 and. June 1. No on^ may require you to returnyour choice form-before June 1 and no preference is given for return-ing the choice form early.

No principal, teacher or other school official is permitted to infinenceanyone in making a. choke or to require early return of the choice form.No one is permitted to favor or penalize any student or other personbecause of a choice made. A choice once made cannot be changed exceptfor serious hardship.

No child will be denied his choice unless for reasons of overcrowdingat the school chosen, in which case children living nearest the school

-will have preference.Transportation will be provided, if reasonably possible, no matter

what school is chosen. [Delete if the school system does not providetransportation.)

Your School Board and the school staff will do everything we canto see to it. that the rights of all studentsare protected and thatof our school's is carried out successfully.

Sincerely yours,Superintendent.

GI 101 CE FOR3I

This form is provided for you to-choose a school for your child toattend next year. You have :30 days to make your choice. It does notmatter which school your child attended last year, and does not mat-ter which school your child attended last year, and does not matterwhether the school you choose was formerly a white or Negro school.This form must be mailed or brought to the principal of any schoolin the system or to the office of the Superintendent, [address], by June1, 1907. A choice is required for each child.

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Name of child(Last ) ( First) (Middle)

AddressName of Parent or otheradult serving as parentIf child is entering first grade, date of birth :

Grade child is entering(Month) (Day) (Year)

School attended last yearChoose one of the following schools by marking an X beside the name.

ni Inc of School Grade Location

Sin-nature

Date

To be filled in by Superintendent School Assigned'School Assigned

erEwrx. C;rcuit Judge, with whom Gnirrtx B. Bur.. Circuit Judge.concurs (dii,senting) :

The opinion of the majority and-the proposed decree are long, com-plicated, somewhat ambiguous and rather confusing. The per curia inopinion of the majority of the en bane court does not substantiallyclarify, modify or change anything said in the original opinion tiledDecember 29, 1966. Onlv minor and inconsequential changes were madein the proposed decree.' In my view both the opinion and decree con-stitute an abrupt and unauthorized departure from the mainstream ofjudicial thought both of this Circuit and a number of other Circuits.I am unable to agree either with the opinion or the decree, especiallythose provisions dealing with the following: (1) de facto and de juresegregation; (2) the guidelines: (3) the proposed decree; () attend-ance percentages, proportions, and freedom of choice: and (5) en-forced integration.

FAcro .v.vo Juni.: SnottEn.rno:c

The thesis of the majority, like Minerva ( Atlania) of the classicmyths.' was spawned full-grown and full-armed. It has no substantial

%In subsequent rears the dates in both the explanatory letter and the choice fromshould he changed lie changed to conform to the choice period.

-The opinion" and -the deem. as used her-in refer to the opinion and &erre tiled Inthese ca.4. + by the three judge panel on December 29. 190;. wherein two of the judges agreedand one dissented. Of necessity. referenees to page numbers of the opinion refer to the NM)opinion.

See Gaylley. The Classic Myths, Rev. ed. 1939) Page* 23-tthe sp M from the brain of Jove. agleatn with panoply of war, brandishing a spear

and with her battlecry awakening the echoes of heaven and earth."

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leg,a1 ancestors!' We must wait to see %%lint progency it will produce.While professing to fashion a remedy under the benevolent canopy

of the Federal Constitution, the opinion and the decree are couched Indivisive terms and proceed to dichotomize the union or states into twoseparate and distinct. parts. Based on such reasoning the Civil RightsAct of 1!)(;4 is stripped of its national character, the national policiestherein stated are nullified. and in effect, the remedial purposes of theAct are held to apply to approximately one-third of the states of theunion and to a much- smaller percentage or proportion of the. totalpopulation of the country. I am unable to believe that the Congress hadany such intent. I f it did, a serious constitutional question would bepresented te; to the validity of the entire Act under our concepts ofAPle,ican constitutional rovernment:-

.The Negro children in Cleveland, Los Angeles. Boston, New -1 ork,

or any other area of the nation which the opinion classifies under defacto segregation, would receive comfort from the assertion thatthe raeia mak-up of their school system does not violate their constitu-tional right because they were born into a de facto society. while theexact same racial make-up of the school system in the 17 So.ithern andborder states violates the constitutional rights of their counterparts, oreven their blood brothers, because they Were born into a de jure society.All children everywhere in the nation are protected by the Constitu-tion. and t reatment which violates their constitutional rights ill onearea of the country, also violates such constitutional rights in anotherarea. The details of the remedy to be applied, however, may vary withlocal condit ions. Basic ally. all of them must be given the same constitu-tional protection. Due process and equal procction will not tolerate alower standard, and surely not a doub:c standard. The problem i4 am.t lona' one.

Regardless of our decrees. in spite of our hopes and notwithstandingour disappointments, there is no infallible and certain process of al-chemy which will erase decades of history and transmute a distastefulset of circumstances into :1 utopia of perfection. All who have studiedthe subject recognize that discriminatory practices did not arise froma single cause. Snell practices had their origin and birth in social. eco-nomic, educational, legal, geooraphical and numerous other consid-erations. These factors tend to be sei f-perpetuating. We must eradi-cate them, and have the faith fliat they as ill be eradicated and elim-inated by responsible and responsive governmental agencies actingpursuant to the best interests of the community. There is no social anti,biotic which will effect a sodden or overnight cure. It is not possible tospecifically fix the blame or to attribute the origin of discriminatorypractices to isolated causes, and it is surely inappropriate to undertaketo fasten guilt upon any segment of the Population. In this area of ournation's history eminent historians still disagree as to causes and effects.Sonic studies have placed emphasis on the slave trader or the importer'of slaves, others have blamed the slave holder, while others have triedto trace the guilt back to tribal chieftains in Africa. Perhaps the most

Ihoweler. compare the doctrine of the taajority and the theme of an article in the Vir-ginia lam lier few entitled "Title VI. The Guidelines and School Dc.egregation in theSouth". by James It. Dunn. Virginia Law Review. Vol. XL page 42 t19117): According torootnote of the law review article. tin' majority 0101,111011 war' released "as this article waggoing to press." Mr. Dunn is I.egal .1driser. Equal Educational Opportunities Program,United States Office of Education, IIEW, Washington, D.C.

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common understanding amongst all the historians and students of theproblem is the conclusion-that causes cannot be isolated and respon-sibility cannot be limited to a particular gronp. Whatever the cause orexplanation, it is clear that the responsibility restson many rather thanfew:

At this time, almost 13 years after the decisions in Brown v. Boardof Education (19541 347 'U.S. -183, 74 S.Ct. 686, 9S L. E(1. S73 (Brown 1)and Brown v. Board of Education (1955) 349 'U.S. 294, 75 S.Ct. 753.99 L.Ed. 1083 Proem 11), there should be no doubt in-the minds ofanyone that compulsory segregation in the public school systems ofthis nation must be eliminated. Negro children have a personal, pres-ent, and tinqbalified constitutional right to attend the public schools ona racially non discriminatory basis.,

AlthOfigh espousinr- the cause of uniformity and asserting there mustnot. be one law for Athens and 'another for Rome, the opinion does notfollow-that thesis or principle. One of the chief difficulties which Iencounter with the opinion is that it, concludes that the Constitutionmeans one thing in 17 states of the nation and something else in theremaining states. This is (lone bya rather ingenious though illogicaldistinction between-the terms de facto segregation and de jure segre-gation. While the opinion recognizes the evils common to both types.it relies heavily on background facts to justify the conclusion that theevil will be corrected in one area of the_nation and not in the other.In my view the Constitution eannot be bent and twisted in such aincliner as to justify or support such an incongruous result. The verysubject matter under consideration tends to thatthe constitutional prohibition against segregation should be applied in17 states and not in the rest.of the nation.

Legislative history clearly supports the idea that no distinctionshould be made with respect to the various states in dealing with theproblem. Senator Pastore was one of the principal spokesmen whohandled this legislation. He gave the following explanation :

"Frankly I do not see how we could have gone any further, tobe fair * * * Section 602 of Title VI, not only requires the agencyto promulgate rules and regulations, but all procedure nmst be inaccord with these rules and regulations. They must. have broadscope. They must be .national. They must apply to all fifty states.We could not, draw one rule to apply to the State of Mississippi,another rule to apply to the State of Alabama, and another ruleto apply to the State of Rhode_Island. There must be only onerule, to apply to every state. 'Further, the President,must approvethe rule." (110 Cong. Rec. 705Q, April 7, 1964)

tmr. PASTORE. * * * We must do what Title VI provides;and we could do it in no milder form than that now provided byTitle TI. The Senator from Tennessee says, 'Let us read thistitle' I say so, too. 'When we read these. two pages, we understandthat the whole philosophy of Title VI is to promote voluntarycompliance. It is written right in the law. There shall be the volun-tary compliance as the first step, and then the second step-theymast inaugurate and promulgate, rules that have a, national effect,roof a local effect. They shall apply to Tennessee, to Louisiana, toRhode Island, in equal fashion. (110 Con. Rec. 7066, April 7,1064.

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In connection with-the distinction which the opinion undertakes tomake, it is pertinent to observe the following strong and unequivocalpronouncement in the very beginning of the decision in Brown 11:

"All provisions of federal, state, or local law requiring or per-mitting such discrimination must yield to this principle. Thereremains for consideration the manner in which relief is to be ac-corded." (Emphasis added) (page 9.98, 75 S.Ct. page 755)

It should be observed that all public school segregation was de jure inthe broad sense of that term prior to the first Brown decision, in thatsegregat'on was perm itted,i if not required, by law.

It is undoubtedly true that any problem which readies national pro-portions is often generated by varying and different customsnores,laws, habits and.manncrs. Such differences in the causes which con-tributed to the creation and existence of the problem in the first in-stance, do not justify the application of a fundamental constitutionalprinciple in one area of the nation and a_failure to apply it in another.

While all the authorities recognize the existence and operation ofdifferent causes in the historical- background of racial segregation,there are also marked similarities. This fact is noted in the recentlyreleased study by the United States Commission on Civil Rights,Racial Isolation in the Schools. 1967. Vol. I (pp. 39, 59-79). In dis-cussing the subject the following observation is made early in the re-port:

"Today it [racial isolation or segregation] is attributable toremnants of the dual school system, methods of student assign-ment, residential segregation, and to those discretionary decisionsfamiliar in the Northsite selection, school construction, trans-fers, and the determination of where to place students in theevent of overcrowding." (Emphasis added)

In its sun nary the Commission notes that the causes of racial isolationor school segregation are complex and self-perpetuating. It speaks ofthe Nation's metropolitan areas and-refers to social and economic fac-tors as well as geographical ones. According to the summary, not onlydo state and local governments share the blame, it is categoricallyasserted that "The Federal Government also shares in this responsi-bility." (Emphasis added) Pertinent similarities in the problem, ap-plicable to the entire nation, are forcefully asserted in the final sentenceof the Commission's Summary :

"In the North, where school segregation was not generally com-pelled by law, these [discriminatory] policies and practices havehelped to increase racial separation. In the South. where until theBrown decision in 1954 school segregation was required by law..thni-Mr policies and practices have contributed to its perpetual ion." (Em-phasis added)

By a processof syllogistic reasoning based on fatally defective majorpremises the opinion has distorted the meaning of the term segregationand has segmented its meaning into de facto and de jure segregation.All segregation in the South is classified as de jure1 while segregationin the North is classified as de facto. Different rules apply to the dif-ferent types of segregation. The South is heavily condemned. The

4 At one place in the opinion pseudo de facto segregation in the South is mentioned, butit is asserted that any similarity between pseudo de facto segregation in the South andactual de facto segregation in the North is more apparent than real (p. 6S).

100

opinion approaches the problem on a sectional basis am! fails to con-sider the subject except on a sectional or regional basis. There aremany references to "the eleven- Southern states and the "the seven-border states. This area of the nation is variously eharactertized as"'Re eleven states of the Confederacy.- "the entire region encompass-ing the southern and border states ''. "wearing the badge of slavery-.inul "apartheid -% Finally. the opinion concludes t hat the two types ofsegregation are different, have different origins, create different prob-lems and require different corrective action. It is suggested that thereis no present remedy for de facto segregation but that the problemsand questions arising from de facto segregation may someday beanswered by the Supreme 0)1111.5cases the Coml. 'clearly and wisely recognized the fact that those de-cisions had changed the law whickhad been in effect for decades. Duenotice was taken of the fact that the new order of the day would "in-volve a variety-of local problems." The court recognized "the complexi-

This Court, and the district courts within the six states embracedwithin our jurisdiction like many other federal courts of the nationhave given much time and attention to the solution of the priblemsarising after the Brown. decisions. Much has been accomplished. muchremains to be done. It is not possible for nu' to join in the expressionsof pessimism contained in the opinion or to approve the insinuationsthat the courts have failed in the performance of their duty." EvenCongress is taken to task for failure to act earlier and for failure torecognize school desegregation "as the law of the In the Brown,ties arising from the transition to a system of public edneation freedof racial discriminatimi. Moreover, the Court stated, "hill implemen-

The case of Mocker v. lld. of Edne. of 311111111:11,Mq. x.y. MILX.Y. 1904) 22(i F. Sapp 20Scited a WI relied on by the majority does not ...Import the la facto de Jute MA1)(11011. lufact :lodge Zavatt disavows any such (16411u:thin. The following is from the opinion :"On the facts of this case, the separation of the Negro elemotary sellout ehildren .issegregation. It is segregation by lawthe law of the School 'Board. In the light of theexisting filets, the eontinutmee of the defendant Board's impenetrable at tendance linesamounts to nothing less than state imposed segregation."

segregation is attributable to the State. The prohibitions of the Fourteenth Amend-meta 'have reference to actions of the political hotly dominated a State, by whateverinstruments or in whatever modes that netion may he tliken. Whoever, by virt»e ofpublic position under a State government, takes away the equal protection of thelaws. violates the constitutimlal inhibition : and as he acts In the 1111111e nod for the State.and is elotlusl with the States potter. his act is that of the State.' Ex Parte 1'irginia, 100U.S. 339. 346-347. 25 L Ea. 070. 079 (1Ss9). Tho ;Mumma here is In no different posturebecause the members of the School Board and the Superintendent of Schools are localoil eiais front the point of vIew of the Fourteenth Amendment they stand in this litigationas the agent's of the State.' Cooper v. Aaron, supra, 358 U.S. II), at 10, 78 S.Ct. 114011, at1408. 3 It.F.d.2d 5."

See for evample the following statements from the opinion :"The courts acting alone have failed." (p. 847 of 372 F,2d).

Quantitatively, the results were meager." (p. 853)*

"Anti most judges do not have stillieient eompetencethey are not ecluea tors or schooladministrator. to know the right questions. much less the right answers.' (p. 855)* * * * * * *"In some en,es there leis been a substantial tintelag between this Court's opinionsand their applications by the distriet courts, Ill certain caseswhit-11 we considerunnecessary to cite--there has even been a manifest variance between this C'ourt's de-cision and a later district court decision. A number of distrift courts still mistakenly as-stone that transfers under Pupil Placement Lawn superimposed on unconstitutionalinitial assignment satisfy the requirements of a desegregation plan." (p. 800)I See 10111 (5), page 855 of the opinion :"(5) Rut one reason more than any,other has held hack desegregation of 'Pidle schoolson a large scale. This has been the lack, mail 1904, of effective congressional statutoryrecognition of school desegregation as the law of the land,"

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tation of these constitut ional principles may require solution_ of varied10(111 school problems." The courts were instructed to be "guided byequitable principles," to give consideration to "practical flexibilityin shaping remedies" and observed that equity courts 'give a peculiar"facility for adjusting and reconciling public and private needs." TheBrown, decisions emphasized the concept that courts of equity are par-ticularly qualified to shape such remedies as would "call for eliminat ionof a variety of obstacles hi making the transition to school systemsoperated in accordance with the constitutional principles" pronouncedin the first Brown decision. Contrary to the tone and expressions of themajority opinion, the Supreme Court early announced the policy ofheavy reliance on the district courts and that policy has continued tothis *date.

IIGrinemNEs

With respect to the guidelines. it should be noted that they were notan issue presented to the District Court., The eases here involved hadbeen tried in the respective district courts. appealS taken to this Courtand were pending on the docket of this Court before the 1966 Guide-lines were promulgated. Guidelines were not made an issue by thepleadings or otherwise in the district courts and no evidence wastaken with respect to th:.,m. The issue of the guidelines are beforethis 'Court because the Court, slut sponte. brought the issue before itsIn my view their validity is not an issue to be decided in this Court. SeeUnited States v. Petrillo (1947) 332 U.S. 1, 5. 6, 67 S.Ct. 1538. 91L.Ed. 1877; United States v; International Union (1957) :15 r.S.567, 590, 77 S.Ct. 529, 1 L.Ed.2d 563; Connor v. New York Times(5 Cir. 1962) 310 FA 133, 135; Gibbs v. Blackwell (5 Cir. 190) 354-F.2(1469,471.

In its first approach to the question the Court indicated that it wouldnot pass upon the constitutionality of the 2:111(1e11110S but would giveweight to or rely upon them as a matter of Judieial policy. When 011-fronted with the fact that the guidelines were not approved thePresident as required by the Civil Rights Act of Mt the opinionthen concluded that they do not constitute or purport to be rules orregulations or orders of general application. It was then stated thatsince they were not a rule, regulation or order, they constitute "astatement of policy". and while HEW "is under no statutory com-pulsion to issue such statements" it was decided that it is "of manifestadvantage" to the general public to know the basic considerations whichthe Commissioner uses "in determining whether a school meets the re-quirements for eligibility to receive financial assistance." Immediatelythe opinion recognizes the inherent unfairness and vices of such pro-nouncements of administrative policy without an evidentiary hearing."The guidelines have the vices of all administrative policies establishedunilaterally without a hearing." t' Finally, the opinion concludes that

"See opinion. page S4S of 372 F.2t1. footnote 13.It should be noted that when the panel which originally heard this case funned brlef

no mention wits made of any constitutional question or issue with respect to theguidelines. Rather. the question.: posed related to whether 1. was -toertnisible and de-;Arable- for the court to glee weight to or rely on the guidelines: and if so. what practiealmeans or method: should he employed in making use of the guidelines. From the questionsraised by the court. c(Ilitei C011id not have Rained the Ii pre4.tion that the court was tomatte a full scale determination of the constitutional nue:atop-1 Involved.

' See oplulob page 8:17.

102

the guidelines are fully constitutional, recognizing as it is bound to do.that a failure to comply with them cuts the purse strings and closesthe treasury to all who fai; to comply :

"The great bulk of the school districts in this circuit have ap-plied for fedefal financial assistance\ and therefore operate undervoluntary desegregation plans. Approval of these plans by theOffice of Education qualifies the schools for federal aid. In thisopinion we have held, that the HEW Guidelines now in effect areconstitutional and are within the statutory authority created inthe Civil Rights Act of 1964. Schools therefore, in compliancewith the Guidelines can in general be regarded as dischargingconstitutional obligations." (Emphasis added) (p. 894)

Whether viewed from a substantive or priePdural point of view,due process and sound judicial administration require, at the veryleast, an evidentiary hearing on a matter so vital to so many people."Not only are numerous people affected, but those most affected are theschool children of the nation. The most vital segment of our democraticsociety is our school system. The operation and administration of thepublic school systems of this nation are essentially a local business. Itis unthinkable that matters that so vitally affect this phase of the na-tional welfare should be decided in such summary fashion. In the twomost recent pronouncements by the Supreme Court dealing with theproblem of segregation as related to faculty and stall, that Courtrefused to act without an evidentiary hearing. In both decisions thecases were remanded to the district court "for evidentiary hearings."Bradley v. School Bd., City of Richihond (1965) 382 U.S. 103, 86S.Ct. 224, 15 L.Ed.2d 187; Rogers v. Paul (1965) 3S2 U.S. 198, 86S.Ct. 358, 15 L.Ed.2d 265. Similarly, in Calhoun v. Latimer (1964)377 U.S. 263, 84 S.Ct.. 1235, 12 L.Ed.2d 288, the Court had for con-sideration a desegregation plan of the Atlanta Board of Education.During the argument before the Supreme Court counsel for the Boardof Education informed the Court that subsequent to the decision of thelower court, the Board had adopted additional provisions authorizing"free transfers with certain limitations in the city high schools". Thepetitioners contended that the changes did not meet constitutionalstandards and asserted that with respect to elementary students thechanged plan would not achieve desegregation until sometime in the1970 s. The Supreme Court did not "grasp the nettle" but vacated theorder of the lower court and remanded the case to "be appraised by theDistrict Court in a proper evidentiary hearing." (Emphasis added)

3Tbe 1900 Guidelines were promulgated on March T; 1960. after these cases weredocketed in this Court. The ..'act that the appellees bad no opportunity to have a hearingand that the guidelines were unilaterally issued rathout receipt of evidence front thenumerous sebool districts was called to the attention of this Court by one of the briefsfor appellees:"As pointed out in detail below. the Constitutional and legislative principles applicableto the expenditures of federal funds. the legislative and administrative discretion placingconditions upon the melpt and use thereof, the lack of due process in the adoption

thereof and the lack of any opportunity to be heard by those affected thereby all render suchGuidelines inapplicable to the pending cases."

"The 11)60 Guidelines (as well as the 1965 Guidelines) were not approved by the Presi-dent. They were issued by the Office of Education unilaterally without an opportunity forthe representatives of the thousands of school districts affected thereby to be heard. Asunilateral directives they have not been subject to judicial review."See consolidated brief Jefferson County Board of Education, pp. 76-47.

103

IIIDErnEEI now .come to a consideration of the decree ordered to be entered

and its relation to the opinion. It is impossible to consider the decreeand the opinion separately; they are inextricably interwoven. Neithertakes into amount "multifarious local difficulties", and therefore, anyparticular or peculiar local problems are submerged and sacrificed tothe apparent determination, evident on the face of both the opinionand the decree, to achieve percentage enrollments which will reflectthe kind of racial balance the opinion seeks to achieve.

The opinion asserts that uniformity must be achieved forthwith ineveryone of the six states embraced within the Fifth Circuit. No con-sideration is given to any distinction in any of the numerous school sys-tems involved. Urban schools, rural ones, small schools, large ones,areas where racial imbalance is large' or small, the relative number ofNegro and white childred in :my particular area, or any' of the othermyriad problems which are known to every school administrator, aretaken into account. All things must yield to speed, uniformity, per-centages and proportional representation. There are no limitationsand there are Po excuses. This philosophy does not comport with thephilosophy which has guided and been inherent in the segregationproblem. since Brote»11. As the Court there stated:

"Because these cases 'arose under different lord et»ulitions andtheir disposition will involve a variety of 7orol problems, we re-quired further argainent.on the question of relief." (340 ['.S.p. 298,75 S.Ct. p. 755) (Emphasis added)

See also Davis v. Bd. of School Comin'rs of Mobile Co., Ala., 322F.:2d 356 (5 Cir, 1963) wherein this Court made a distinction in therural and urban schools of Mobile County, Alabama. We held:

"The District Court may modify this order to defer desegregationof rural schools in Mobile County until September 1964, shouldthe District Court after further hearing conclude that specialplanning of administrative problems for rural schools in thecounty make it impracticable for such schools to start desegrega-tion in September 1963."

The effectiveness of the district courts has been seriously impaired,in a real sense, contraiy to the teachings of all the decisions of theSupreme Court since brown 11. Under the opinion and decree aUnited States District 'Judge serves essentially as a referee master,orhearing examiner. Now his only functions are to order the enforcementof the detailed, uniform, stereotyped formal decree, to supervisecompliance with its detailed provisions as therein ordered and di-rected, and to receive periodic reports much in the same fashion as re-ports are received by an ordinary clerk in a large businessestablislumeIit.

Such a detailed decree on the appellate level not only violates soundconcepts of judicial adininistration, but it violates a longstandingphilosophy of the federal judicial system, and indeed all judicial sys-tems common to this country, which vest wide discretion and authorityin trial courts because of their closensss to and familiarity with local

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19a) :1(*:7 F.Supp. iS. if the completely free choice is afforded acdneither the students nor their parents desire to change the schools thestudents have heretofore attended. this Coto- is mthout authorityunder the Constitution or any enactment of Congress to compel themto make a ehange. lulplirit iii freedom of choice is the right to chooseto remain in a particular sehool, perhaps the selmol heretofore at-tended. That it itself is the exercise of a free choke. The fact that Negrochildren may not choose to leave their associates. friends, or membersof their families to attend a school where those associates are elimi-nated does not mean that freedom of choice does not work or is not ef-fectivelv afforded. The assertion by the majority that "ftilie onlyschool (desegregation plan that nwets Omstitutional standards is onethat works as interpreted by that opinion-simply means that studentsand parents will not be given a free rhoice if the results envisioned bythe majority are not :lethally aehieved. There must be a mixiiig of thera:ns arcordin!, to majority philosophy even if such mixings can Onlyba achieved under the lash of compulsion. If the pereentaire of Negromid white children attending a particular school does not conform totie; prczatage of Negro and white school population prevalent. inthe community, the majority concludes that the plan of desegregationdo:ss not, work. Accordine while professing to vouchsafe freedomand liberty to Negro children, they have destroyed the freedom andlihnty of all students, Negro and white alike. There must be a mixingof dm raczs, or integration at all costs, or the plan does not work ac-c--adher to the. opinion. :Stall has not been and is not now the spirit orthe ;lie law.Further the Court equates the percentage attendance test with per-centages in jnry exclusion eases " rases and yowl- reffistictionIt. should be pointed out that such eases had no element of freechoke in them. andtherefore, the comparison is inapposite. In the in-stant eases the majority cosh: us a free choke plan unless it acheivesthe percentage result-which suits the majority.Accordingly, the opinionconelndes:,

"Percentages have been used in other civil rights caSes. A similarinference may be drawn in school desegrtT-ation eases, when thenumber of Negroes attendinr school with white children is mani-festly out of line with the. ratio of Negro school children to whitesrliool children in public schools. C0111111011 sense sugests that agross discrepancy between the ratio of Negroes to white childrenin a school and the HEW percentage guides raises an inferencethat the school plan is not working as it should in providing aunitary, integrated system."

11 One of the leading and tute4 riVellt MA,. on jury exclusion is Swain r. State ofAlabama (1998) :1M1 U.S. 2112, N5 S.Ct. 524. la 1..E.1.2d 7,8,. With rpret to proportionalrepresentation on juries the Court roneluded:-Venires darns from the jury box made up ht risk ma r tuttplet.tIonahly containeda smaller proportion of the Negro community than of the white rontionnity. lIatdefendant in tt criminal rase is not r..:ectitistfottally entitled to demand a prnmr-tlottate number of bk rare IM the jury which tries tutu nor on the venire or jury roilfrom which the petit jurors are urn it Is.- it. 2os.5 i S.Ct. P.529.1

Further. the Court in Swain quoted with approval the following statement from C:1,:S111State of Texas. 3::9 U.S. 282. 286-257. 70 S.Ct. G29. n31. 94 1,. Ed. 839.3;7 :-11bviously the number of rares and nationalities appearing In the ancestry of ourv11171.11 would make it ;Inpossible to mod a reptirentent of proportional representation.Similarly. :Alter there ran be nu or tirgrfie as a race and no discriminationlovanqe of color, proportional limitation is not permissible."

106

There is no constitutional requirement of proportional representationin the schools according to race. Furthermore, since there can be noexclusion based on race, proportional limitation is likewise impermis-sible under the Constitution.

The nun and attitude of the majority is reflected by the followingstatement :

"In reviewing- the effectiveness of an approved plan it seems rea-sonable to use some sort of yardstick or objective percemage guide.The percentage requirements in the Guidelines are modest-, sug-gesting only that v using free choice plans for at least twoTears should expect 15 to 18 per cent. of the pupil population tohave selected desegregated schools."

We should be concerned with the elimination of discrimination onaccount of race, and freedom of choice is one means of accomplishingthat goal. It is not our function to condemn the children or the schoolauthorities because the free choices actually made do not comport. withour own notions of what, the choices should have been. When our con=milts as to proportions and percentages are imposed on school systems,notwithstanding free choices actual made, we have destroyed free-dom and liberty by judicial fiat; add even worse, we have done so inthe very name of that liberty and freedom we so avidly claim to espouseand enibrace. Our duty in seeking to eliminate racial-discrimination isto vouchsafe to all children, regardless of race. a full, complete andtimely free choice schools in appropriate cases in keeping with soundadministrative practices which take into consideration proper criteria.Both proportional representation and proportionai limitation areequally nuconstitutional.

VE.Nroncrx Ix-reen.vriox

The opinion seep to-find a Congressional mandate requiring com-pulsory or enforced integration in the public schools as distinguishedfrom the elimination of segregation. Throughout the opinion thereappear a tangled conglomeration of words and phrases of variousshades of meaning, all of which are equated with each other to reachthe conclusion desired by the majority thatschool boards in this Circuit!mist adopt and implement a plan of forced integration.

It seems appropriate to return to the Civil Rights Act. of 1964 andthe legislative history which spawned its enactment in order to ascer-tain the true Congressional intent. Section 401(b). 42 U.S.C.A.

4000e (b) defines desegregation in unequivocal terms:b" Desgregation" means the assignment of students to public schoolsand within such schools without regard to their race, color, reli-d or-national origin, but 'desegregation' shall not mean theassignment of students to public schools in order to overcomeracial imbalance."

Section 407(a) (2) of Title IV, Title 42 z" 2000c--6(a) (2) provides asfollows:

cc* * * provided that nothing herein shall empower any official orcourt of the United States to issue any order seeking to ac:,:evea racial balance in any school by requiring the transportation ofpupils or students from one school to another or one school dis-trict to another in order to achieve such racial balance, or otherwise

107

enlarge the existing power of the court to insure compliance frithconstitutional standards." (Emphasis added)

It should be noted that the portion of the language of the provisowhich is underscored is omitted in the court's opinion. As to enforcedintegration the following statement by Senator Humphrey is exactlyin point :

Mr. Humphrey * * * I should like. to make one further refer-ence to the Gary case:Ilitgase makes it quite clear that while theConstitution prohibits segregation, it does not require integra-tion * * *. The bill thmSbot7attempt to integrate the schools butit does attempt to eliminate segregation in the schools * *. Thefact that. there is a racial imbalance per se is not something whichis unconstitutional. That is why we have attempted to clarify itwith the language of Section 4." (110 Congressional Record 19.717)

Likewise with expect to Section 407(a) () Senator frumphrey's state-ment clarifies and makes plain the Congressional intent by referringto the Gary case."

The following additional excerpts from the legislative historyserveto clarify the intent of Congress Cei,-essmatiCellar, Chairman ofthe Judiciary Committee of and Floor Manager of theltilI:

"There is no authorization for either the Attorney General or the.Commissioner of Education to work toward achieving racialbalance in given schools." (110 Congressional Record 1519. Janu-ary 31, 1901)

Senators Byrd and Humphrey:"Mr. Brun of West. Virinia. But would the Senator from Min-

nesota also indicate whether the words 'provided that nothingherein shall empower any official or court of the United States toissue any order seeking to achieve a racial balance in any schoolby requiring the transportation of pupils or students from oneschool to another or one school district to :mothr iu order toachieve such racial balance' would preelude the Office of Educa-tion, under section 60-2 or Title VI, from establishing. a require-ment that schol boards-and school districts shall take action torelieve racial imbalance wherever it may be deemed to exist?

"Mr. Huminny. 1:1,$-, I do not belime in duplicity. I believethat if we include the langualp in Title IV, it must apply through-out the Act." (110 Congressional Record, Page 12715. June 4,1)04).

Senator Javits:"Mr. Jayrrs * * * Taking the case of the schools to which the

Senator is referring, and the danger of envisaging the rule orregulation relating to racial imbalance, it, is negated expressly inthe bill, which would compel racial balance. Therefore there is nocase in which the thrust of the statute under which the moneywould be given would be directed toward restoring or bringingabout a racial balance in the schools. If such a rule were adoptedor promulgated by a bureaucrat: and approved by the President,the Senator's State would have an open and shut case under Sec-tion 603. That is why we have provided for judicial review. TheSenator knows as a

whythat. we never can stop anyone from

=Bell V. School e City of Gary. Indiana, 213 F. Stipp. 819 (D.C. 1963).

A

10S

suing. nor stop any Government official from making a fool ofhimself. or from trying to do something that he has no right to do.except by remedies provided by law. So I believe it is tliat set ofwords AIiieh is operative." (110 Congressional Record, Page12717. June 4, 1064),

Senators Bvrd and Humphrey:"Mr. Brun of Wes/ Virginia * *. Cannot the Office of Edu-

cat ion, pnrsuant to carrying out this regulation, deny asto saw)l dist nets wherein racial imbalance exists?

Mr. lImennEv. Let me read from the substitute: Provided,that. nothino. herein shall empower any official or court of theUnited States to issue any order.

Mr. Reran of West N '.To issue any order*, but dot;s itprovide that the Office of Education shall not cut off- Federalassistance?

Mr. Ilum_ennEv. But in order to cut off Federal assistance. thePresident would have to issue the order, if the Senator will readSect ion 602.

Bynn of West Virrinia. The words are: No such ride. regu-lation. or order shall become effective unless and until approvedby the pmsident.

Mr. II I'M l'111:1:1". That is correct.Mr. Brno of West. Virginia. What as.urance does the Senator

!rive me that the President will not approve such a requirementMr. .11r31P1 I HEY. lit9IIISC I donot believe the President will

violate the kw.- (11 Congressional Record. Page 1:271:i, June 4,196E).

In order to escape the clear meaniier of the quoted statutes and the'inquest lolled intent. of ConuTess as illustrated by -the legislative his-tory, the opinion summarily' obliterates any disiinction between de-vration means forced or enforced integration. Again the termintegration is applied only to de jure segregated schools. Ananalysis of the opinion demonstrates that the process of reason-illfr used 811101111tS to alt unauthorized insertion of the word"no jure- to achieve and maintain the de facto and de jure distinctionwith whirli 1 dealt earlier. By means of this device the opinion convertsthe Civil Rights Act of 1964 into a new and different concept entirelyforeign to its true meaning. I quote several typicH-excerpts from theopinion :

"We use the terms 'integration' and 'desegregation' of formerlywgregated public, schools to mean the conversion of a de :lie seg-regated dual system to a unitary, nonracial (nondiscriminatory)systemlock, stock. and barrel: students, faculty, staff, facilities,programs. and activities.- (Emphasis added) (footnote 5, page846 of 37:2

4-

"The vatiowd poll('// is plain: formed!/ de jure segregatedpublic school systems based on dual attendance zones must shiftto unitary noiawcial systemwith, or without federal funds."(Emphasis in orig.) (page 850).

C * r..-* * * * *"Although the legislative history of the statute shows that thefloor managers for the Act and other members of the Senate and

109

House cited and quoted these two opinions they did so withinthe context of the problem of de facto segregation.- (Emphasisadded.) (pare S02). [The two eases.ilientioned are Briggs aBell.]

-As used in the Act. therefore. desegrep-ation' refers only to thedisestablishment of segregation ha. de jaw segregated' schooly.---(Emphasis added) .(page KS).

-Senator-Humphrey spoke seteral times in the language ofBriggs but his references to Bell indicate that the restrictionsin the Act were pointed at the Gary. Indiana de facto type of seg.-egat:on." (Enuil:asi.; added) (page 881),

Again it should aid that it is not easy to understand the.reason-ing by which the jority concludes that the Federal Constitutionrequires integration t f formerly dc jure school systems but does notrequire the integrati,.n of de facto systems. Apparently faced withthis dilemma the r.njority realirxd that it must challenge the juris-prudence establishel by Brig::; v. Elliott (1.,'.1).S.C. 195:0 132 F.Sapp. 770, and 1k I Scl.00t City of Gary (N.D. Ind, 1903) 213 F.Sapp. 819, affirnmi !321: F. 2d 209 (I Cir. 1903). The opinion refers tothese eases as "two gloy.cs on Brown." The repeated assertions of Sen-ators-showing their reliance upon the two decisions in question !riveemphasis to the ine:ming of the teachinj of those two cases. SenatorI himphrey actually s'tated that the thrust of . Judge Beamer's opinionin the Cary case was incorporated into the Civil Rights Act of 1904.'3The majority disposes of Senator lumphrey's comment and the Garycase by asserting that the school districts were drawn without regardto race. The following is from the opinion :

"Senator Ihunfihrey spoke several times in the language ofBriggs but his references to Bell indicate that the restrictions inthe Act were pointed at flue Gaily:Indiana de facto type of se!rre-gation.- (opinion page SO).

While it may be true that the facts in Gary showed good faith onthe part. of the school board, it. is likewise true that the Gary schoolsystem involved de jure segregation within the meaning of the majorityopinion. We quote from Judge Beamer's opinion, 213 .F. Stipp. at 822.-:

"Prior to 1949, Gary had segregated schools in what is common;ly known as the Pulaski Complex. Two schools were built on thesame campus. one was called Pulaski-East and the other Pulaski-west. One was occupied by Negro students and the other by whitestudents. This was in accordance. with the separate but equalpolicy, then permitted by Indiana law ( Mulls Indiana StatutesAnnotated. 1948 Replace ment. Section 28-5104)."

The difficulty of the majority is further increased by virtue of thefact that Judge I3eamer cited cases which uphold the Triggs doctrine.More important. when the ease was affirmed by the Court of Appeals ofthe SeYenth Circuit, the so-called Briggs dictum was cited as authorityfor the court's holdinps. 324 F.. 2d at 213.

If the alleged Briggs dictum is so clearly erroneous and constitu-tionally misolind; it is dillicultto believe that it would have been ae-

u See opinion pnge SS!.71-7,21;--72-S

110

cepted for a period of ahnost twelve years and quoted so luany times.Even the majority concedes that. the court in Briggs was composed ofdistinguished jurists, Judges Parker, Dobie and Timmerman. If themajority is correct, it is entirely likely that never before have so manyjudges been misled, including judges of this Court," for so long bysuch a clear. understandable direct. and concise holding as the languagein Briggs which the opinion now condemns. The language is straight-forwai and simple-: The Constitution. in other words, does not re-quire integration. It merely forbids discrimination."

It is interesting also to observe that the Supreme Court has neverdisturlvd the Briggs language, although it has had numerous op-portunities to do so. As a matter of fact, it has come very close toapproving it: if it has not. actually done so. In the. case of. Shuttles-worth v. Birmingham Board of Ed. (N.D.Ala.1958) 162 F.Supp. 372,378. the district court speaking- through Judge Rives quoted the Briggsopinion. The Supreme Court affirmed the judgment. Shuttlesworth v.Birmingham Board of Ed., 358 U.S. 101, 79 S.Ct. 221. 3 L:Ed.2d 145.

The majority requiring compulsory integration is new andnovel, and it. has not been accepted by the Supreme Court or by theother Circuits. The rationale of Briggs has been approved:R/-0u%decisions. supra; Goss v. Bd. of Educ. of City of Knoxville, supra;Bolling v. Sharpe, 347 U.S. 497 498, 74 S.Ct. 693. 98 L.Ed.884; Coin.of Permsylvanm. v. -Board of Directors of City Trusts, 353 U.S. 230,231, 77 S.Ct. 806. 1 L.Ed.2d 792 Cooper v. Aaron, 358 U.S. 1, 78 S.Ct.1401, 3 L.Ed.2d 5 (passim) ; Scull v. Coin. of Virginia, 359 U.S. 344.316, 79 S.Ct. 838, 3 L.Ed.2d 865: Wolfe v. State of North Carolina,364 U.S. 177, 182, 80 S.Ct, 1482, 4 L.Ed.2d 1650; Gomillion v. Light;foot. 364 U.S-339, 349, 81 S.Ct. 125, 5 L.Ed.2d 110; Garner v. Stateof Louisiana, 368 U.S. 157, 178, 82 S.Ct. 248, 7 L.Ed.2d 207: Turnerv. City of Memphis. 369 U.S. 350. 353. 82 S.Ct. 805 7 L.Ed.2d 762:Johnson v. State of Virginia, 373 U.S. 61, 62, 83 S.CC1053, 10 L.Ed.2d195: Wright. v. Rockefeller, 376 U.S. 52, 57-58, 84 S.Ct. 603, 11L.Ed.2d 512; Springfield School Committee V. Barksdale (1 Cir. 1965)348 F.2d 261; Bradley v. School Board of City of Richmond, Va.- (4Cir. 1965) 345 F.2d 310; Swann v. Charlotte-Mecklenburg Board ofEthic. (4 Cir. 1966) 369-1+`2d-29; Deal v. Cincinnati Board of Educ.(6 Cir. 1966) 369 F.2d 55: Bell v. School City of Gary, Indiana (7Cir. 1963) 324 F.2d 209: Clark v. I3oard of Educ. of Little Rock (SCir. 1966) 369 F.2d 661; Downs v.Boad of Educ. of Kansas City (10Cir. 1964) 336 F.2d 988, cert. den., 380 U.S. 914, 85 S.Ct. 898, 13L,Ed.2d 800.

CONCL17S/011

It is my judgment that the de facto-de jure distinction created inthe opinion can not be supported as a matter _of law. Percentage orproportional enrollment, requirements based on race, and enforcedintegration are in violation of well established constitutional concepts inmy opinion.

While it cannot be denied there has been recalcitrance and resistanceto desegregation as required by the Brown decisions in numerous areas,I cannot share in the pessimism expressed in the opinion. Throughoutthe country a substantial effort has been made to eliminate segregation

34 See the very clear dissenting opinion of Judge Cox.

111

and substantial progress has been made. The Bown decisions con-templated some difficulties and complexities. A review of the historyof the difficulties involved strongly indicate that the greatest problemsarise when a start or "break through" is initiated. Recalcitrance andresistance which appeared initially in many areas have now subsidedor disappeared. It is also, true that the emphasis has shifted properlyfrom "deliberate" to "speed" I continue to have confidence in thelocal school boards of the nation. While some of them have performedslowly and a few have not performed at all, the vast majority of schoolboards are composed of conscientious, civic minded, sincere people whoare undertaking to do what is best for the school children of the nation.We should not interfere with them unduly.

Furthermore. I continue to have confidence in the judicial system ofthe country and bold the firm belief that the record of the courts inachieving compliance with the Brown decisions demonstrates that thecourts have given their prompt, careful and diligent attention to theproblems as they have arisen. In Inv view the heaviest burden has beenon the district courts, and inevitably the best solutions will come at thedistrict. court'level where the judges are in close contact with local com-plexities, obstacles and problems. The primary responsibility shouldhe left where the Brown decisions placed it. with the boards of educa-tion under the supervision and guidance of the district courts. Thisis not to say that. the courts should not accord full consideration to theexpertise of the Department of Health, Education and Welfare: andwe should give due consideration to HEW Guide when it is ap-propriate to do so. However, the provisions of the Civil Rights Actof 1964 should not be by-passed. Rules, regulations and orders of gen-eral application should be enacted in accordance with the require-ments of due process and school systems should not be penalized bysuch rules, regulations or orders which are not approved by thePresident as provided by the Act. It is no answer to say that theguidelines are interpretive regulations or "housekeeping" rules. Theyare being used and applied as general rules, regulations or orders.

Due to developments in the jurisprudence particularly with respectto desegregation of faculty and staff. the orders of the district courtsshould be vacated and the causes remanded for further considerationand for evidentiary hearings in the district courts. In effect the ap-pellees recognize the fact that this must be done. We should not re-verse the district, courts on questions which were not issues beforethem and fashion our own decree with respect to such issues withoutany evidentiary basis or without affording an opportunity for thepresentation a evidence relating to such issues in the district courts.

GRIFFIN B. BELL. Circuit Judge. with whom GEWIN, Circuit Judgejoins (dissenting).

I respectfully dissent. The two-judge or original opinion of Decem-ber 20, 1966 is what the majority has adopted. That opinion seriouslyerodes the doctrine of separation of powers as between the Executiveand the Judiciary. Moreover, much of its language is in the nature ofoverreach and, as such, adds confusion and unrest to the alreadytroubled area of school desegregation. The overtones of compulsoryintegration and school racial balances in the original opinion can onlychill the efforts of school administrators to complete the task of elimi-nating dual school systems in the South. In addition, the other side

I

112

of some of the more im portant holdings of the majority opinionshould be considered and those propositions stated winch militate

mu st-m.71insttTeir`The plain intent of the two opinions is to establish a uniform law

for the school systems of this circuit. Thus. the opinions must be testedas laws. Their validity .and efficacy as laws should be considered inthe frame of reference of need. fairness. clarity and what is consti-tutionally permissible.

It is fundanoltal in law making that laws should be fail:as betiveenpeople and sections. The requirement that laws be dear in meaningis also a fundamental, We cannot be expected to obey the law if wecannot understand Ca li(rula kept the meaning of the laws from theRomans by posting them in narrow places and in small print'it is no different today when the law is couched in vagueness.

Then there is the matter of personal liberty. Under our system ofgovernment, it is not to be restricted except where necessary, inbalance. to give others their liberty. and to attain order so that allmay enjoy liberty. History records that, sumpthary laws have beenlargely unobserved because they failed to recognize or were needlesslyrestrictive of personal liberty:Our experiments with sumptuary-likelaws are exemplified by the Dred Ageott decision. Scott v. Sandford,19 How, 393, 15 L.Ed. 691, Reconstruction. and the prohibition laws.All failed.

The majority opinions, considered together, fail to meet the tests offairness and clarity. '1'lle advance -approval given to a requirement ofcompelled integration exceeds what is constitutionally permissibleunder the Fourteenth Amendment.. They cast a long shadow overpersonal liberly as it embraces freedom of association and a freesociety. They do little for the cause of education.

It is important, howevei. that this dissenting opinion not misleadany person having responsibility in the area of school desegregation.The dual system of education must be eliminated. This was ordered in1955. Brown v.` Board of Education of Topeka, 1955, 349 U.S. 294, 75S.Ct. 753. 99 L.Ed. 1083. School boards were told to convert the dualsegregated school systems into racially nondiscriminatory school sys-tems. The court. pointed to problems that, might, arise in the transitionwith respect to the physical condition of school ,plants. transporta-tion, personnel, and in the revision of school districts and attendanceareas into compact areas. This order followed reargument of the ques-tion of remedy after the 1054 decision holding segregated educationunder the separate but, equal doctrine unlawful. Brown v. Board ofEducation. 1954. 347 U.S. 483. 74 S.Ct. 686, 98 Ti.Ed. 873. After fullargument. the transition was ordered. The separate but equal doctrinewas already lost, and the time for remedy was at hand. Transition wasthe remedy provided.

Transition to date has in the main consisted of following a freedomof choice plan for mil assignment, But freedom of choice withoutfaculty desegregation and the elimination of discrimination in bdild-ings. equipment. services and curriculum will not suffice to convert adual system into a unitary_ nondiscriminatory system. The slow pro-gress to date toward eliminating dual systems IS what has brought

Soetonhis, The Lives of the Twelve Caesars. (Random 11o3;:e, 1959), p. 191. 192.

113

about the majority opinions. and is also at the root ofthe disturbancebeheen the Health. Education. and Welfare Department and manyschool boards. The objective must be. as the Department of Justicecontends, that there be no white schoolsno Negro schoolsjustschools. But this is all that is required and it can be accomplishedwithout the open-end compulsory integration language of the majorityopinions, or the geometric progression guidelines 2 of HEW whichthe majority opinion approves.

The mandate of the Supreme Court in &own II can be carried outby the ussignment of faculty and students without regard to race, andby affording equality in educational bpportunity from the standpointof buildings, equipment, and curriculum. Where freedom of choicein student assignment is ineffective to the extent that a dual systemcontinues, it can be implemented by a neighborhood assignment plan.A.ssigninents should then 1w made by the school hoard to the schoolnearest the home Of the student, whether formerly white or Negro.Then the child would be given the Option under a freedom of choiceplan of attending another school with priority to attend being basedon proximity of residence to school. This method of student assign-men is comparable to wl,f is being used in Charlotte. Cf. Swann v.Charlotte-Mecklenburg Board of Education, 4 Cir.. 1.%6. 369 F.2d

( En bane),We should order the school boards in these cases, which they and the

entire court agree must be reversed. to forthwith eomplete the con-version from dual to unitary systems by the use of these minimum butmandatory directions. School boards and the public %would understandthe objectiveto convert dual school systems into unitary nondiscrimi-natory systems ust as the Supreme Court directed twelve years ago.School boards and the public would also understand the method tobe followed in the conversion. But this approach is too simple forthe majority. Their view is that something more is requireda resultwhich brings abOtit substantial integration of students. The mandatoryassignment of students based on race is the method selected to achievethis result. This is a new and drastic doctrine. It is a, new dimensionin.constitutional lam and in race relations. It is new fuel in a field wherethe old fire has notbeen brought under control.

PnocEntiam, PaocEss Ano TUE APPROVAL OF TIIE GUIDELINES

The scope of the majority holding as to the binding force on thefederal courts of the IIEW guidelines in the area of school desegrega-tion posed a serious separation of powers question. That fact aloneshould have indicated that the validity of the HEW guidelines was ofprimary concern. One of the major premises of the original or panelopinion is !hat HEW excuses those school systems which are undercourt order from compliance with its guidelines: hence. the necessityof the court setting: the guidelines as minimum standards to preventthe courts from being used as an escape route. The original HEW

while these 1.:ISP,K were pending after en !mite argument. IIW announced newguidelines. Now for a Qehool system to receive approval without further ante ligation.It :mist show that the minthr of minoritv group student in integrated schools withinthe Nystem in the Minot year 1:107RS will he double the number preent ht 11M0-117 andIn onle Inqtanee.4 triple the number. New Oriente: TiniesI'lea3utte..Nlarell 15. 1957. pageI. Column -I. .%ttelated Ness.

114

Regulation promulgated in 1964 makes this possible. Title 45A. CFR,§ 80.4(c). The HEW statement of policy of 1965, Title 45, CFR, § 181.4.receded from this position but the latest HEW policy supersedes the1965 statement which includes § 181.4, supra. See HEW March andDecember 1966 Statementsnot, reported in CFR.

The HEW Statements of Policies for School Desegregation arereferred to generally in the school desegregation world as guidelines.At least. three such statements have been issued; one in 1965, onein March 1966, and another in December 1966. There apparently havebeen amendments. Footnote 2, supra. NO guidelines whatever were inissue in the lower courts.3 The guidelines of March 1966 had not beenpromulgated when the cases were there. Indeed the guidelines ofDecember 1966 had not been promulgated when the eases were sub-mitted after- argument to the original panel of this court. The factthat they had not been in issue did not. deter the court in the originalopinion. There it was held that. the " * * HEW guidelines now ineffect are constitutional and are within the statutory authority createdIn the Civil Rights Act of 1964". This perhaps meant all guidelinespromulgated up to the date of the opinion, December 29, 1066. Anydoubt as to the inclusion of the December 1966 guidelines was resolvedwhen the majority in the en bane per curiam opinion stated that the1965 and 1966 HE guidelines arc within the decisions of this courtand comply with the letter and spirit of the Civil Rights Act of 1964and meet the requirements of the United States Constitution. This isadjudication without any semblance of due process of law. It is anunprecedented procedure and a shocking departure from even rudi-mentary due process.* Approval of future guidelines is limited by themajority to those" * * * within lawful limits."

The theory of the court escape route and the necessity to hold allguidelines valid is apparently developed in the interest of supportingthe national policy, as expressed in the Civil Rights Act of 1964, ofeliminating discrimination in public education. The general theme ofthe majority is that HEW has the carrot in the form of federal fundsbut no stick. A stick is needed in those situations where a school boardmay not take federal funds. The aim is to make a stick out of thefederal court. The courts should cooperate with HEW but they can-not be made to play the part of any stick that HEW. may formulateand this is the- tenor of the original opinion. Courts are restrictedto acting within the limits of the Fourteenth Amendment ill the schooldesegregation area. It may or may not be proper for a court to actwithin the limits of what the HEW policy may be in allocating federalschool funds. Sometimes there may be a difference. A decent respectfor the judiciary dictates that we make this plain.

s Ile practice of bearing appeals in school cases on old records is very unsatisfactorY.we IN not know what changes in desegregation plans may have been made in the interim.It is ., rapidiv changing public area where plans its well as the law are in flux. Cf. Calhounv. Winter. 1904. 377 U.S. 263. 84 S.Ct. 1235. 12 L.Ed.2d 288. where the court tooknote of a supervening plan and remanded for an evidentiary hearing in the DistrictCourt.

Section 603 of Title IV of the Civil Rights Act of 1964. 42 SSC& 1 20000 -1 providesthat no rule, regulation or order of IIEW shall become effective unless and until approvedby the President. Whether the guidelines nre such rules or regulations cannot be decidedwithout an evidentiary hearing concerning their meaning through application. Tbf,question lins never been lint in issue in these cases.

115

THE STANDARD REQUIRED BY Till: MAJORITY Is UNCONSTITUTIONALLYVAGUE

The original opinion states in two places that the only satisfactoryplan for desegregating a school system is one that works. One looks invain for a definition of "one that works." This is manifestly a vaguestandard., It cannot be followed. Moreover, it is subject to selectiveenforcement and a statute couched in such language would be patentlyunconstitutional.

In another place in the original opinion the statement is made that.substantial integration must be achieved in disestablishing dual schoolsystems. This is not dear. What is substantial? Is the reference simplyto a system. or to each school. or to each class room ?

The en bane per cariam opinion may have attempted to improvethe standard by saying that criterion for determining the validityof a provision in a school desegreiration plan is whether the provii4ionis reasonably related to accomilishing the objective of educational op-portunities on equal terms to all. Who knows the meaning of this?There is no mention of result.

These vague standards are perhaps the most mischievous parts ofthe majority opinions. They place unfettered discretion in HEW inthe area of school desegregation. No school board will ever know whenit has performed its dnry to eliminate the dual school system. Noschool board will ever know whether federal funds will be madeavailable. This type of standard places school systems under menand not laws. School boards and MINA patrons are entitled to a den rand definite standard. The problem of desegregation will not be solvedabsent a clear standard.

TUE DR JURE-DE FACTO Docruisi: Is rxre

The unfairness which inheres in the majority opinion sterns fromthe new doctrine which the original panel fashioned under the con-cept of classifying segregation into two types: de jure segregation.called apartheid. for the seventeen southern and border states former-ly having legal segregation; and de facto segregation for the otherstates of the nation. This distinction. which must Ix. without a differ-ence and somewhat bellow to a deprived ehild wherever located. isused as a beginning. The original opinion then goes on to require af-firmative action on the part of the school authorities in the de juresystems to integrate the schools. The neighborhood school systems ofthe nation with their de facto segregation are excused. The Constitu-tion does not reach them.','

This reasoning is necessary to reach the end of compulsory integra-tion in the so-called de jure states. It is the counterpart to overrulingthe settled construction of the Fourteenth Amendment. to be next dis-cussed, that integration is not commanded. The restrictions in the CivilRights Act of 1964 against requiring school racial balances by as-

rTile legislative history of the Civil Rights Aet of 1664 does not show that Congressacted on a de jurede facto basis. I would not attribute such a form of sectionalism to theCongress.

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particular movant may deem to be, in his view. a desirable racial emu-position for the particular school or schools. This leaves the law in itvery unsatisfactory state and portends of utter confusion for schoolboards.°

DI THEE

The use of a uniform decree. as the majority points out. is not novel.Onr school desegregation decisions have tended toward uniformityin the freedom of choice method of assignment and in the administra-tion of such plans.. . uniform decree within the limits of minimumstandards would aid school boards and the district courts but theuniform decree entered in this case can be faulted because of its detail.This comes about through the unbounded aim of the court to track theHEW guidelines. It must be remembered that decrees mar have tobe enforced by the court and a court should guard againsebeing putin the unfeasible position of having to bear motions based on thealleged breach of some minor and insubstantial provision of its de-cree. It. is also not clear to me that sufficient latitude is left to the dis-trict courts to adjust such practical difficulties as may arise under thedetail of the decree.

EW has an advantage over the district courts. as the court. hasnow restricted them, in the execution of school desegregation plans.IIEW mar delay, excuse. and change. HEW may vary its require-ments as between systems. The majority has left. no such power inthe district courts. They are admonished to follow HEW but it isa sad day for the district courts. and for the entire judiciary as wellas for the principle of separation of powers when the only discretionleft them is within the limits to be set by HEW.

It. al.o would appear improper to constitute the courts as overlordsof the school systems of this circuit, to the extent done in the uniformdecree. The district courts must require school equalization to theextent set out in paragraph VT of the decree. Its scope. is only a shortstep from taking over curriculum. The building improvement pro-vision moves the courts in the direction of levying local taxes. Order-ing school boards to discontinue the use of buildings could amountto taking property without. dne process and just. compensation. Theseare drastic measures and there are no facts before the court to demon -state the necess ity for them. It is entirely proper for the District. Courtto disapprove new construction where it will perpetuate the dualschool system but. this is a mutter for complaint and hearing ratherthan for advance supervision as is required under g VII of the decree.

.1 good exatuttle Or the praleitta to he tqwutitered ih elIttilitathic the dual etitoolvsteot is to he Wen II the Talinferro County. Grortda sitars! system. See Turner v.;;,13.(la.. 190. '23N P.Stipp. 724. for background. There were only two schools inthe . ?stem and the Word clo.segregoted. effective in Septemher 19496. on the basis ofeonverting the white school into no elementary school and the Negro school into a highoelanot. .1 perfect rocloi balanco would he aecomplished under the pion. In 1945 therenett. approximately Mt Negro children and 206 white children enrolled in the system.11e records of the Georgia State Deportment of Rdneothel as of January 19. 1947 Moll-sate that there ore now 527 Negro students enrolled In the Toliferro Countyschool systemand no white students. 'rids result raises serious onef.tions. how is a "pion that narks-to ho formulated for this school sytem? What untuher of white students will he neededto make it work? Where will they conic front? How will they he selected? Will to lottery".vsteut owed? Will they be comyelitsi to attend the Tollaferro Comity school Srvate:1111It .41. how? will the toapayers of the .vstettt be eoutpelled to pay for eduenting children1.e.entid In from outside the bYatP111 Will the court irnor system lines although the lowsof GeerI Itteotte for getetrate eetteat stent.: what htea.ttrea writ he employed toavoid reserregation through tontines removing their reshlenees from the schol steno?(Ironton this is an extreme example but it is nevertheless a factual situation.

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By way of siunmation, I reiterate that the majority opinions are un-fair to the extent that they discover or establish and then rely uponthe de jure-de facto divisive sectional theory. The opinions expand,without constitutional authority, the requirement that dual school sys-tems be converted into something more than unitary school systems:to-wit, that substantial integration be achieved in the respective schoolsystems. This added requirement is itself impermissibly vague as a_standard without further delineation. The opinions unduly restrictpersonal liberty to the extent that compelled integration is approvedor required, and in this regard improperly overturn and expand thesettled meaning of the Fourteenth Amendment. The court errs in pre-maturely holding that the guidelines issued by HEW are contsitn-tional and within the scope of the Civil Rights Act of 1964. No guide-lines whatever were considered by the district courts. Sonic of thoseapproved had not been written.

My own view is that the law makes no such requirement as themajority of the court imposes. No such radical departure is necessaryto accomplish what. the Supreme Court has directed the lower courtsto accomplishthe elimination of the dual school system. The Su-preme Court has not. said that every school must have children fromeach race in its student body, or that. every school room must containchildren from each race, or that there must-be a racial balance or a nearracial balance. or that there be assignments of children based on raceto accomplish a result of substantial integration. The Constitutiondoes not require such. We would do well to "stick to our last' so asto carry out. the Supreme Court's present. direction. It is no time fornew notions of what. a free society embraces. Integration is not an endin itself: a fair chance to attain personal dignity through equal educa-tional opportunity is the goal. My view, however, is now lost. in thiscourt; hence this DISSENT.

CM.E3IA N. Circuit. Judge (separate opinion).These cases remind me of what. Mr. Chief Justice Chase said in

State of Texas v. White:"We are very sensible of the magnitude and importance of this

question, of the interest it excites, and of the difficulty, not. tosayunpmsibility. of so disposing of it as to satisfy the conflictingjudgments of men equally enlightened. equally upright, andequally patriotic. But we meet it in the case, and we must deter-mine it rn the exercise of our best judgment, under the guidanceof the Constitution alone."

This court. exercising- only such appellate jurisdiction a- Congresshas seen fit to confer upon it, confronted solely by a question of howbest. to preserve au already settled Constitutional right, should beguided the Conkatution alone and by nothing elve.

No one denies that to an incalculable degree the future of thisCountry depends inescapably upon the continued. constantly im-provededucation of all it. inhall;tont*. Nor can it very successfully bedenied that the hest practical hope of attaining this objective is tobe found and maintained in the public schools. It became plain overa hundred years ago that private, schools did not and could not reachthii masses of the people.

17 iVall. 700, 720, 74 U.S. 700.7"_0.19 227 (iscs).

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Compulsory discrimination in the public schools, founded on tacoor color, is `Constitutionally dead. No Judge would dispute this.Existentially it- is like the wounded animal which bounds on forawhile after it has been fatallv shot. The critical problem now is thatwe must not. wreak irreparAle injury upon public schools whileexecnting the sentence of death against compulsory segregation.thoroughly realizing this. the Supreme Court left the details of theeradication to the sound judicial discretion of the District. Courts.subject only to appellate review. To this day this assi,tomient has notbeen changed. I do not suppose in our form of government that it.(mild be ehange. Courts :done :mike binding adjudications on ques-tions of Cons_ titutionality. and litigation must begin at the Districtlevel.

The public schools of the 'Nation, not just those of it particularsection, are now caught lip at the second battleground, legal andpolitieal. not about the death of unlawful discrimination but aboutwho and how many of any particlar race shall go to ally particularschool with how many members of some other race. If one looked onlyat the Brat. volume of litigation and its accompanying strife addpublicity he would jump to the conclusion that nothing matters butthe raeial composition of any educational facility. This is pursuedrerardles.s of the real preferences. exercised. in genuine freedom. ofthose directly involved. that is. these who must have art edncatiim.In the ultimate this could become a preat tralredy for those mostaffected. An educational house divided against itself may have troublestanding. It certainly cannot operate with maximum effectiveness.

In the light of these eonsiderations. as one who was able to securean edueation solely because there was a public school io which therewe:: an opportunity to obtain it. I shall now express my vien-s. as oneJudge of this Cora, individually; as to the decision now about to berendered.

In doing so, I proceed upon the thesis that there is nothing at allinconsistent about beinr, at the same time, both a loyal American anda Southerner. I think Andrew Jackson conclusively settled that pointover is eentury ago.

It is particularly unfortunate if our decision in these eases is in any-way to be grounded on old scores against the States of this Circuit.This is contrary to American legal` tradition; it opens old wounds.rekindles old fires. and lends itself as a weapon to the futile cause offurther !icy. Prior to 1954. racially separate, if equal. schoolshad not been condemned as mwonstitutional. One is Hot to he punishedor harassed for a :let which was lawful when it was clone. Indeed. snhcondemnation in this instance. would inferentially inelude some of themost highly respected Judges who ever :mired the Supreme Court.They had opportunities to condemn the system but, in the exercise ofperfect jtulicnri integrity. did not. As I malerstand it, an OmnipotentGod (toes not ehange yeslerday when it is past and gone. Certainly thisCourt ea mut do it. tire are now concerned with rectifying the errors ofthe present and forestalling, if we can, the anticipated errors of the'future. I (beeline to participate in any ex post facto eondemnations. Iprefer to believe that this Court is not deliberately- doing so.

I further believe that whatever the Fourteenth Amendment requiresof any State it requires of all States. if we are requiring something

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here in the enforcement of Fourteenth Amendment rights that shouldnot be required of all fifty States then we have exceeded our authorityand we have misapplied the Constitution. I agree with the action ofthe majority opinion in disclaiming any intention of passing on thevalidity of educational operations in other Circuits. That matter is notami cannot be before us.

It is out of regard for the desirability of Constitutional uniformitythat. I agree, in principle. with the attempt to formulate a-degree forthe future guidance of District Courts in this Circuit. It is obvious thatsuch a. decree cannot adjudicate cases in advance of a. hearing in theDistrict Court, nor can it be applied in the absence of factual justifi-cation.

The decree speaks for itself, of course, but I interpret it to deal atthis point with making freedom of choice a reality instead Of a. prom-ise. I do not understand that this (*mut has abandoned freedom ofchoice, if that. choke is red instead of illusory.

Nor do I understand it to direct that there shall be a specified per-centage of the vacuous races in any partienlar public sehool or thatthere $11:111 be proportional representation of the races brought aboutby arbitrary order. I agree with Judges Gewin and Hell t hat the opin-ion strongly portends :inch a possibility. lint paragraph 5 of the enbane opinion -certainly discinns any such intention. The DistrictCourts are left free to consider all the evidence, including racial-attend-ance perentapes. in determining whether the children of any !milieu-hi sluml district have been offered a reality instead of a shadow. Itis. to be anticipated that the bridge will later have to he crossed whenwe come fare to face with a- situation wherein there ean be ilo doubt ofthe freedom but the results are displeasing and are attacked solely forthat reason.

I think it all boils down to this. We once had the doctrine of separatebut equal. We did not. I ant sorry to say, pay lunch attention to the"equal.- We now have freedom of choice. As .Judge Hell sfi';:nleiulidlystates it. we are now going to have to make certain of the "freedom-.To fail in this is to invite other action which at this time I regard asunconstitutional but which could soon be made Constitutional.

The decree is not as I would have written it had I been charged withsole responsibility for the effort. No offense is intended when I doubt

ithat it is perfect. For example. the en bone opinion says that "boardsand officials administering public schools in this circuit have the af-firmative duty under the Fourteenth Amendment to bring about anintegrate. unitary school system." Yet II(0) of the decree prohibitsany official from influencing parents or students in the exercise of achoice. In other words. if the officials feel that Negro ehildmi should beencouraged to apply for admission to a formerly white school theyare prohibited from doing so. They are to be colidennwd. on appear-ances. if no Negro child

doingto attend a formerly white school:

they are not allowed, in the exercise of ordinary freedom of speech. todiscuss the matter with Negro children with a view to their exercis-ing a preference in favor of attending a school they have not for-merly attendml. The school official cannot win. In one breath he is toldto act: in the next he is immobilized.

Experience will hone away these inconsistencies and impossibilities.This Court has drafted uniform decrees on prior occasions. These 'are

122

now- speedily outmoded, if not abandoned. Judges. like other humanbeings, do not always write in granite; they often find that they haveonly marked in the sand.

Since the HEW guidelines were not the subject. of a hearing in theCourts below 1 do not discuss them here. In my view, they are notnow before this Court.

The focal point of the whole matter is the action of the en baneopinion repudiating Briggs v. Elliott and overruling our prior opinionswhich followed the same rationale. see Footnotes 1 and 2 for the cita-tions.

It is my view that these prior cases were correctly decided. OtherCircuit Courts in this Country appear to feel likewise. If the reasoningin these overruled cases is incorrect then we simply face the following:

The freedom of the Negro child to attend any public school withoutregard to his race or color, first. secured in the Brown cases, is againlost to him after a short life of less than thirteen years. He is left,open to a future adjudication that although he does not wish to at-tend School A and has in fact expressed a desire to go elsewhere thisis of no importance. Because (Allis race he can be assigned to a par-ticular school to achieve a result satisfactory to someone who prob-ably does not even lire in the district but who wishes to make a racialpoint. Thus the child reenters the same racial discrimination fromwhich he escaped- so short a time ago. He remains bogged in race.Moreover, when Negro children are to be selected by someone, weknow not who, to comply with such a racial assignment, on what basiswill the selection be made? How will the wishes of some be respectedand others rejected, solely because they happen to be of the Negrorace? We are not freeing these children of racial chains. We are com-pounding and prolonging the difficulty.

The true answer remains, give him absolute freedom of choice andsee to it that he gets that choice in absolute good faith.

In conclusion, I wish to say that in my own case a burning desireto obtain an education in the face of impossible circumstances is nota theoretical experience encountered only by others. I did hot, havean opportunity to attend school until was eight years of age. The delaywas quite unavoidable ; there simply was no school to attend at thatparticular time. My mother taught me how to read and write, to addand subtract. My total sympathies are with the cause of education free-ly available to all. This, of course, under the Constitution requires nospecial privileges for any group or segment of the population. I regretthat where once the concern was for schools to attend we now have somuch strife about the details of utilizing those so readily available.

What I have said herein is with the e-greatest deference for my Breth-ren who think otherwise. We must and shall continue to work togetheraccording to our individual judgments of the law. The en bane decisionmay portend more problems ahead than we have heretofore encoun-tered.

I concur in the reversal of the Judgments, below, but in my views ofthe issues generally are as herein set forth.

GODBOLD. Circuit Judge (dissenting) :I respectfully dissent. I wish not to delay appellate procedures if

any of the parties desire to pursue them. Therefore, I am recordingmy diisent at this time and will file a dissenting opinion at a later date.

123

GoDiom Circuit Judge (dissenting) :1 recognize and oppose the inequities of state- enforced and state-

encouraged racial discrimination in the operation of public. schools.I respect the energy, labor and intellect that ju0m,s of this and othercourts have given in the past twelve years toy d solution of suchinequities. I understand, and share, the desire to ...hart. a future coursehaving fewer difficulties and frustrations: Novertheless..although thedecrees appealed from must be reversed, I dkszent. from the opinionand the decree.

Because this dissent is late-filed and numerous points have beendiscussed in the other dissenting opinions, I shall limit this opinion toonly a few of the grounds on which the majority opinions, in my view,are both incorrect constitutionally and inappropriate as a. mater ofjudicial administration.

In the critical area of student assignment the majority propose anunconstitutional condition on the operation of a valid freedom ofchoice system, violative of equal protection and of due process. Thiscourt. has deemed freedom of choice an acceptable method for aschool board to use in fulfilling its duties. Singleton H, 355 F.2d at871. HEW recognizes it as a permissible means of desegregation. 1966Revised Guidelines, Subpart, B. 181.11; also Subpart D. A substantialpart of the majority opinions and the attached decree are directed atsetting out requirements of a free choice plan that is truly free andunfettered. But the majority superimpose upon free choice, eventhough in all respects fairly and validly set up and administered, acondition subsequent that the statistical results of racial mixing. 2 pro-duced by the freely-made choices must be acceptable under standardsimposed from outside those making the choice. They do this by estab-lishing as a constitutional requisite that a free choice system must pro-duce a degree of staudent.racial mixing, not yet. defined as to limitsbut nevertheless required.

The United States reads the language of the majority in this vitalarea as mere dictum. In brief on rehearing the government says: "Theappellees, in petitioning for rehearing. asserted that-the decision of thepanel held that the Constitution imposes an absolute duty to achievea racial mixing of students so as to eliminate a disproportionate con-centration of Negroes in certain schools within a system. Once thisproposition is asserted, the appellees have no difficulty in disparagingthe opinion as being inconsistent with prior holdings of the FifthCircuit. It is trite that the panel indicated its concern that educationalopportunities on an equal basis he furnished to all, and the opiniondoes suggest in a footnote that elimination of the all-Negro schoolmakes this objective easier to obtain. But au? appellees misread theopinion when they claim, that this is the holding of the Court." T wishthat I could read the majority as saying no more than that dispropor-

Throughout tills opinion "freedom of choice" and "free choice" refer to a plan validlyget up, properly administered, and with choices freely exercised without external pres-sures, so that the plan itself (as opposed to the statistical results produced by exercisedchoices) Is in all respects constitutionally acceptable.

7' The term "racial mixing" is used with Intent that it he neither laudatory nor denigrat-ing of the process and the individuals involved, but as a simple descriptive phrase thatavoids further confusing use of "integration" and "desegregation."

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tionate racial concentration of students is evidentiary of whether afreedom of choice system is"truly free, or share with confidence theview that the teeth of the original opinion are extracted by paragraph5 of the en bane opinion. I am not able to do so. If the language ofmandatory is indeed a mere aside we shall all await with inter-est to see whether the courts are the prisoners of their own slogans andthe dictum of today is to be asserted as the law of tomorrow.

The majority define "integration" and "desegregation" as conver-sion of a de jure segregated dual school system to a unitary.npnracial(nondiscriminatory) systemstudents, faculty, staff, facilities. pro-grams, and activities, this for the objective of offering equal educa-tional opportunities for all .3 There are two strings to the bow of thisdefinition. To convert a dual system into a unitary, non-racial systemthe student body is one of the arms of the system which must be con-verted. Seeond, the equal educational opportunity that must be offeredis elsewhere in the opinion equated with a racially mixed educatimi.

The majority state firmly that the law does not require racialbalance, or a -maximum of racial mixing'', nor that each and everychild shall attend a, racially-balanced school,4 and that Guidelines arenot be used to establish racial "quotas." Percentage figures in theGuidelines may be ivies of thumb as the majority say. It may developthat neither the courts lair the Commissioner of Education will SOelc

to achieve racial balance by the Guidelines or otherwise. But all thisis irrelevant to the constitutional issue. Grasping the irrelevancy re-quires understanding that "racial balance" is a word of art referringto a-ratio of Negro and vhite students in approximately the sameproportions as Negro and white population of the community or ofthe schools. It is proposed that governmental action must produce adegree of racial mixing less than "racial balance" but, by someone'sstandards, sufficiently mixed to produce "equal educational oppotu-nity." even though free choices by students and their parents haveproduced a contrary or lesser results Despite disclaimers of specificfigures and of racial balance, power to require mixing is reservedwithin a range, a hazy range to be sure but nevertheless existent.° Ifthe Commissioner and the courts constitutionally have no power torequire racial mixing superimposed on a valid free choice system.constitutionality is not conferred by the premise that they will not

3 Footnote 5 of majority opinion 372 F.24 nt'S46S47.P.hi.

t For example:"As the Constitution dletntes. the proof of the pudding is in the eating: the proof of

e school Ward's compliance with constitutional stnittinrdq is the resultthe performenee.'Mk the operation of the promised plan actually eliminated segregated 'and token-desegregated schools and achieved suls4antial integration? 372 F.2d at 89-1.

"If school officials in any district should find that their district .still bas segregatedfaculties and schools or only token integration, their affirmative duty to take correctiveaction requires them to try nn alternative to a freedom of choice plan, such as a geo-graphic attendance plan, a combination of the two. the Princeton plan. or some otheracceptabie substitute. perhnps aided by an Nincational park. FreNlom of choice k not akey that opens all doors to equal educational opportunities." 372 F.2d at 895S96.

Fn Bane Opinion : "in fulfilling this (ntlirmative) duty it is not enough for schoolauthorities to offer Negro children the opportunity to nttend formerly all-white schools.The necessity of overcoming the effects of the dual school system in this circuit requiresintegration of faculties, facilities and activities, as well as students." 3S0 F.20 at :IS%

Other language is somewhnt less mandntory in terms, as statements that mixing ofstudents is a high priority gonl and that disproportionate concentrations of Negroescannot he Ignored. But when the opinion is carefully rend rnclal mixing is not set outas a desirable objective but as it constitutionally required result.

',crimps the range is "substantinl integration" as used by the chit Rights Com.mission. See n. of majority opinion. 372 F.2d at S4aS47.

125

employ the power to the extent of "racial balance" but are free to roamat will in requiring mixing to a lesser extent.?

The theory that under a free choice plan statistical imbalance alonerises to constitutional dimensions was discarded.by the Eighth Circuitin Clark v. Board of Education of Little Rock, 369 F. 2d 661, 666 (8thCir., 1966).9 See also Deal v. Cincinnati .I3oard of Education, 369 F.2d 55, 62 (6th Cir. 1968) :

"[T]he mere fact of imbalance alone is not a deprivation ofequality in the absence of discrimination.

"[B]are statistical imbalance alone is not forbidden.* *

"Appellants' right to relief depends on a showing of more thanmere statistical imbalance in the Cincinnati schools.-

That school desegregation cases are class actions does not add anyvalidity to the idea of a required mixing result.9 It may be that "[T]heright of the individual plaintiffs must yield to the right of Negroesas a class." 10 But- the majority do not stop there. They create the rulethat the freely-exercised choice of all individual members of the class

?Significant testimony from HEW officials was given in Alabama NAACP State Con-ference of Branches et al. and United States of America y, Lurleen Burns Wallace,Governor, and John W. Gardner, as Secretary of Health, Education and Welfare of theUnited States, and Harold Howe II as United States Commissioner of Education, CaseNo. 2457--N, decided by a three-Judge-court on May 3, 1967 (Middle District of Alabama).269 P. SuPP. 345-As I read that testimony HEW considers it unlikely that a fairly operated free choiceplan will fail to produce transfers in numbers that it deems sufficient. But that underI 181.54 of the 1966 Guidelines the best indicator of whether the plan is working is theextent of transfers from segregated schools. That a low rate of or lack of, transfersmay lead to an administrative examination of operation of the plan, which might resultin a determination that the plan is not being properly operated. That 181.11 authorizesthe Commissioner to determine the conditions under which a free choice plan is notacceptable.There is other HEW testimony that if a school system employed a free choice plan,administered in a non-discriminatory manner in every respect, and no Negro chose trans-fer to a white school and no white student chose transfer to a Negro school, there wouldbe a "technical violation" of the 1966 Guidelines and the system regarded as not incompliance. (Whether this is likely to occur is not the question. We are concerned withthe scope of power. not the withholding of exercise of it.)"Though the Board has a positive duty to initiate a plan of desegregation, the con-stitutionality of that plan does not necessarily depend upon favorable statistics indicatingpositive integration of the races. The Constitution prohibits segregation of the races,the operation of a school system with dual attendance zones based upon race, and assign-ment of students on the basis of race to particular schools. If all of the students_ are.In fact, given a free and unhindered choice of schools, which is honored by the schoolhoard, it cannot be said that the state is segregating the races, operating a school withdual attendance areas or considering race in the assignment of students to their classrooms. We find no unlawful discrimination in the giving of students a free choice ofschools. The system is not subject to constitutional objections simply because large seg-ments of whites and Negroes choose to continue attending their familiar schools. It is truethat statistics on actual integration may tend to prove that an otherwise constitutionalsystem is not being constitutionally operated. However, these statistics certainly do notconclusively prove the unconstitutionality of the system itself."

"In short, the Constitution does not require a school system to force a mixing of theraces in school according to some predetermined mathematical formula. Therefore, the merepresence of statistics indicating absence of total integration does not render an otherwiseproper plan unconstitutional."I do not comment in detail on the maiority's proposition that cases having to do withprocedures for enforcement of rights and the exhaustion of administrative remedies are nowto be treated as substantively creating class rights to constitutional entitlements pre-viously considered to be valued rights of individuals. Instead I deal primarily withthe additional question of whether the alleged class right can override or swallow upindividual right to equal protection. "It is the individual who is entitled to the equalprotection of the laws." McCabe v. Atchison, etc.. 235 U.S. 151, 161. 35 S.Ct. 69, 71, 59L.Ed. 169 (1014).

i The class is defined as all Negroes in a school district attending an inherently unequalschool. It equal educational opportunity includes the right to a racially-mixed educationwith mandatory mixing if not otherwise attained, it is not clear why the class stopsat district lines. Stopping at the district line is a convenient device for administrationand for procedural purposes in litigation but wholly irrelevant to the quantum of con-stitutional entitlements.

71-526 0-72-9

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must yield to the "right" of the class if exercise of choice has not pro-duced a result agreeable to the standard of a supervising authority(judicial or administrative). But "[t]here is nothing in the Constitu-tion which prevents his [everyone's] voluntary association with othersof his race or which would strike down any State law which permitssuch association. The present suggestion that a Negro's right to befree from discrimination requires that the state deprive him of hisvolition is incongruous." Bradley v. School Board of City of Rich-mond, 345 F. 2d 310, 316 (4th Cir., 1965). See also, Olson v. Boardof Education, 250 F. Supp. 1000,1006 (E.D.N.Y.), appeal dismissedas moot, 367 F. 2d 565 (2d Cir., 1966) : "[N]oi did it [Brown] decidethat there must be coerced integration of the races in order to accom-plish educational equality for this also would require an appraisal ofthe effect upon the hearts and minds of those who were so coerced."

It is asserted that freedom of choice is ti privilege or means not itselfreaching constitutional dimensions, as though this is an answer towhether once conferred the exercise of it may be aside. The concernis not merely whether individual privilege must give way to an over-riding constitutional right, but whether individual privilege conferredupon the beneficiaries of the right as an acceptable means of meetingthe constitutional requirement, and validity exercised, must give way.Exercised free choice is a benefit, and student and parents may notbe deprived of that benefit on racial grounds.

Once exercised the choice is one of associates. The constitutionaldepths of freedom to select associates are not yet fully. explored." "Noone can doubt that freedom of association, as a basic mechanism ofthe democratic process, must receive constitutional protection, and thatlimitations on such a fundamental freedom must be brought within thescope of constitutional safeguards." Emerson, Freedom of Associationand Freedom of Expression, 74 Yale L.J. 1 (1964). Professor Emersonpoints out that associational rights are not derived solely from thefirst amendment but are implied in the whole constitutional frame--work for the protection of individual liberty in a free society. Theright of freedom of association most frequently comes up in the con-text of the power of government to regulate the affairs of a, group orassociation, NAACP v. State of Alabama ex rd. Patterson, 357 U.S.449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958), but arises also in othercontexts, including the area where the associational rights are notorganizational but personal in nature. It is this context which Pro-fessor Wechsler believed was the primary, but overlooked, issue in theearly school segregation cases. And Professor Emerson notes, "Milthis situationan official proscription of personal associationtheright to associate in its literal meaning comes nearest to being an abso-lute right untouchable by government power."

n See Wechsler. Toward Neutral Principles of Constitutional Law, 73 Harv.L. Rev. 1.33 (1959). referred to by the majority. "For me, assuming equal facilities, the questionposed by stateenforced segregation is not one of discrimination at all. Its human andconstitutional dimensions lie entirely elsewhere. in the denial by the state of freedom toassociate ."And at 73 Harv.L.Rev. 34: "(I)f the freedom of association is denied by segregation,integration forces an association upon those for whom it is unpleasant or repugnant. Isthis not the heart of the issue involved, a conflict in human claims of high dimen-sions Given a situation where the state must practically choose between denyingthe association to those individuals who wish it or imposing it on those who would avoidit, is there a basis in neutral principles for holding that the Constitution demands thatthe claims for association s'..ould prevail?

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The collision is head-on between individual freedom and pater-nalistic authoritarianism. No more invidious discrimination, or im-proper government objective, can be imagined than national powersetting aside the valid exercise of choice by members of, a class in thename of the constitutional objective for which the choice was grantedto the class in the first place.

The cut horizontally and vertically into American life of what themajority postulate is breathtaking. There are many means by whichthe Negro is moving out of established patterns of segregation andentering the full current of American life. To meet the constitutionalobjective of juries not racially discriminatory acceptable machinerymust be established to place on the jury rolls Negroes qualified for juryservice. Brooks v. Beto, 366 F.2d 1 (5th Cir., 1966). In the name ofthe standard are Negroes (and whites too) constitutionally forbiddento exercise excuses or avail themselves of other means valid and ac-ceptable to them of avoiding actual service? 1" Whether Negroes areentitled to move, and wish to move, from the back of the bus is onething; whether the power of the state is to be employed to requirethem to move is another. We need not speculate on the mathematicalprobabilities of what the exercise of choices may produce in any ofthese areas of life (though there is implicit in the majority positionthe feeling that under a valid free choice system not enough Negroeswill make the choice to produce the defined goal of equal educationalopportunity.) The constitutional problem is not founded in proba-bility but power and duty of governmental authority toact regardlessof probability."

II

Expressions by this court of the validity and constitutionality ofthe 1966 Guidelines were wholly inappropriate. Because of the contextand manner of that action no one can say with assurance or exactnesswhat has been decided, what is open, and what is subject to re-examination.

Bath of the seven cases before us was pending on the docket of thisCourt before the 1966 Guidelines were promulgated. These Guidelineswere not involved in any manner in the cases when litigated in thedistrict courts, and the parties had no opportunity to raibe by normaljudicial procedures and methods questions of their constitutionalityand their consistency with the 1964 Act, to draw the issues and developevidence thereon.

The Guidelines were brought into these cases for a limited purpose.The Court asked counsel to comment by supplemental briefs on the

no a criminal case against a Negro defendant the exercise by the white prosecutorof peremptory challenges so as to strike Negro jurors is not in a particular case a violationof equal protection. Swain v. State of Alabama, 380 U.S. 202. 85 S.Ct. 824, 13 L.Ed.2d739 (1905). If the Negro defendant, by like exercise, removes Negro jurors is his actionsubject to scrutiny?

LI Nor would the basic constitutional defect be remedied by an approach along the fol-lowing line: that choice is exercised annually, and if required standards of mixing arenot attained in one year the free choice plan itself might be declared unacceptable for thenext year. To deprive of free choke because, on the basis of prior choices. it is fearedthat a required level of rising will not be attained in the nest year is no less invidiousthan retrospectively vitating exercise of choke that did not produce the d4-1,,anded ratio.

Let it be emphasized that here, as elsewhere, the words rati and "required racialmixture" and words of like import do not necessarily represent a figure exact in amathematical sense, but the rangewhatever it may be less than the "racial balance"which the majority and HEW say they will not attempt to reach but insufficient to qualifyas "equal educational opportunity." It requires no special gift of prophecy to foresee thatthe range will center on the suggested percentages of the Guidelines.

extent to which it is permissible and desirable for the courts to giveweight to guidelines, and if permissible and desirable to suggest meansto make them judicially effective (Opinion, Footnote 13). From thisproper inquiry for comment of counsel on matters of judicial powerand policy the majority have vaulted to premature pronouncementsof compliance with statutory policy and to unprecedented and almostoffhand, statements on complex constitutional questions of vital signi-ficance to millions of our citizens.

It is a non sequitur that a court is empowered to at on a constitu-tional question not before it for decision on the ground it feels it shouldfor no court would ever do without such feeling. The doctrine of con-stitutional restraint is not to restrain courts that do not want to actbut those that do and to protect them from the very forces and circum-stances that engender a sense of urgency, create a compulsion to actand serve to rationalize action after the event.

For reasons whose soundness is beyond argument the doctrine ofrestraint in passing on constitutional issues is engrained in our juris-prudence. "Grave constitutional questions are matters properly to bedecided by this Court but only when they inescapably come before usfor adjudication. * * * by such self-restraint will we avoid themischief which has followed occasional departures from the princi-ples which we profess." United States v. Rumely, 345 U.S. 41,.48, 73S.Ct. 543, 547, 97 L.Ed. 770, 776-777 (1953).'3 This circuit consistent-ly has recognized and honored the principle. See e.g., Gibbs v. Black-well, 354 F. 2d 409, 471 (5th Cir., 1965) ; Connor v. New York TimesCo., 310 F. 2d 133, 13.4--(5th Cir., 1962).

The Court succumbed to the temptation to reach all issues within itssight and thereby present a total packagecomplete, neat and with allcorners square. Already it was well-established that the Guidelinesare of great weight and are minimum standards. If they were to bemade judicial standards in a more formal sense they could have becomeso subject. to a determination of their constitutionality and statutoryauthorization at a proper time and under appropriate judicial proce-dures.14 The millions affected by them are entitled to no less, nor arethe public officials who must administer them, the schi,o1 officials whomust seek to implement them, the citizens who are assisted by them,and the courts who are to give weight to them.

ci? The position of the United States itself exemplified that validityand constitutionality of the Guidelines were never in issue. At p. 56of its brief for the en bane rehearing the United States said :

"The appellees' briefs argue at considerable length that theGuidelines violate the Civil Rights Act of 1964. The North Caro-lina Board of Education, as animus curiae, requests that the Court

"[Olnly an adjudication on the merits can provide the concrete factual setting thatsharpens the deliberative process especially demanded for constitutional decision.' UnitedStates v. International Union United Auto. etc.. Workers. 352 U.S. 567. :191. 77 S.Ct. 529.541 1 L.Ed. 2d 563 (1957).

"We have consistently refrained from passing on the constitutionality of a statuteuntil a case involving it has reached a stage where the decision of a precise constitutionalissue is a necessity. Many questions of a statute's constitutionality as appliedcan best await the refinement of the issue by pleading. eontruction of the challenged statuteand pleading, and, sometimes, proof." United States v. Petrillo, 332 U.S. 1. 5 and 6,67 S.Ct. 1538, 1541, 91 L.Ed 181'7 (1947).

1There is no way for a court to properly decide as an abstraction whether the Guide-lines are such rules, regulations or orders as do not become effective until approved by thePresident (as required by 1 602, Title VI, Civil Rights Act of 1964. 42 U.S.C.A. 1 2000d-1).There must be a hearing at which there is evidence on the scope of their application.

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not consider the question of the 'validity' of the Guidelines, urg-ing that that queztion is not here in issue. We agree that issueis not technically before the Court. But the question of whetherthe Guidelines are an appropriate guide for effective relief in aFourteenth Amendment case is before the Court. We believe thatthey are, and that the Guidelines conform to Fourteenth Amend-ment standards."

It is especially unfortunate that the en bane court should havediscussed validity and constitutionality at. a time when there waspending before a three-judge court in the United States District Courtfor the Middle Districi, of Alabama, Alabama NAACP State Con-ference of Branches, et al., and United States of America v. LukenBurns Wallace as Governor, et, al., and John W. Gardner, as Secretaryof Health, Education and Welfare of the United States, and HaroldHowe -II, as United States Commissioner of Education, 269 F.Supp346 (M.D. Ala., 1967), which had been tried, briefed, argued and wasunder submission awaiting decision.

In that case the constitutionality of the 1966 Guidelines had beensquarely raised, a record developea," and the application, effect, op-eration and validity of the 1966 Guidelines litigated at length, includ-ing the difficult question of presidential approval. The United Stateshad waived sovereign immunity to the extent of consenting that Sec-retary of Health, Education and Welfare Gardner and CommissionerHowe be made parties defendant for the purpose of litigating theseimportant. questions. Secretary Gardner and Commissioner Howe ap-peared and admitted jurisdiction.

The mischief of failure to exercise requisite judicial restraint wasexemplified when 2457N was decided on May 3, 1967, for that courtconsidered constitutionality anti validity to be already decided by thisCourt, and a decision based on appropriate pleadings, proof alia con-sideration was foreclosed."

In my view the expressions by this Court on both constitutionalityand validity were sOstantively erroneous. But that is immaterial tothe matter of how vital questions are properly considered anddetermined.

"The parties called 10 witnesses. submitted 40 depositions and filed approximately 800page.: of briefs. A substantial part of all this related to constitutionality of the Guidelines and whether they conformed to the intent of the 1964 Act.

""After extensive briefing and full argument, the Court of Appeals for the FifthCircuit in United States v. Jefferson County Board of Education. 372 F.2d 830. decidedDecember 29. 1966. rehearing decided en bane March 29, 1967, 380 F.241 385, has heldthat the 1966 HEW Guildelines are 'within the scope of the congressional and executivepolicies en:hailed in the Civil Rights Act of 1964: (372 F.24 p. 857). Again the Courtsaid: . lie hold that IIEW's standards are substantially the same as this Court'sstandards. They are required by the Constitution and. as we construe them, are withinthe scope of the Civil Bights Act of 1904.' (p. 848.1 On en bane rehearing. the Courtreiterated 'These Guidelines and our decree are within the decisions of this Court, com-ply with the letter and spirit of the Civil Rights Act of 1904. and meet the requirementsof the United States Constitution.' (P. 389 of 380 F.2d.)

These holdings were made deliberately and advisedly in the face of contentions thatthe validity of the 1966 Guidelines was not in issue. The Court ruled otherwise. boldingthat the courts should rely heavily upon the Guidelines and should model their standardsafter those promulgated by the executive (372 F.2d p. 8521, and that 'these Guidelinesestablish minimum standards clearly makable to disestablishing statsanetional segre-:ration: (opinion on en bane rehearing p. 389 of 380 F.2d.)" Alabama NAACP State ofConference of Branches. et ad., v. Wallace. 209 F.Supp. 840. 350 (M.D.Ain., 1907).

130

SUPREME COURT OF THE UNITED STATES

No. 695.OCTOBER TERM, 1967.

Charles C. Green et al.v. On Writ of Certiorari to the

County School Board of United States Court of Ap-New Kent County, peals for the Fourth Circuit.

Virginia, et al.

[May 2I 1968.]

MR. Jusncs BRENNAN delivered the opin.4on of theCourt.

The question for decision is whether, under all the cir-cumstances here, respondent School Board's adoption ofa "freedom-of-choice" plan which allow a pupil to choosehis own public school constitutes adequate compliancewith the Board's responsibility "to achieve a system ofdetermining admission to the public schools on a non-racial basis . . . ." Brown v. Board of Education, 349U. S. 294, 300-301 (Brown II).

Petitioners brought this action in March 1965 seekinginjunctive "relief against respondent's continued main-tenance of an alleged racially segregated school system.New Kent County is a rural county in Eastern Virginia.About one-half of its population of some 4,500 areNegroes. There is no residential segregation in thecounty; persons of both races reside throughout. Theschool system has only two schools, the New Kent schoolon the east side of the county and the George W. Watkinsschool on the west side. In a memorandum filed May 17,1966, the District Court found that the "school system

'serves approximately 1,300 pupils, of which 740 are Negroand 550 are white. The School Board operates one whitecombined elementary and high school [New Kent], and

. one Negro combined elementary and high school [GeorgeW. Watkins]. There are no attendance zones. Each

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2 GREEN v. SCHOOL BOARD OF VA.

school serves the entire county." The record indicatesthat 21 school buses-11 serving the Watkins school and10 serving the New Kent schooltravel overlappingroutes throughout the county to transport pupils to andfrom the two schools.

The segregated system was initially established andmaintained under the compulsion of Virginia constitu-tional and statutory provisions mandating racial segre-gation in public education, Va. Const., Art. IX, 1 140(1902); Va. Code f 22-221 (1950). These provisions wereheld to violate the Federal Constitution in Davis v.County School Board of Prince Edward County, decidedwith Brown v. Board of Education, 347 U. S. 483, 487

(Brown 1). The respondent School Board continuedthe segregated operation of the system after the Browndecisions, presumably on the authority of several statutesenacted by Virginia in resistance to those decisions.Some of these statutes were held to be unconstitutionalon their face or as applied .I One statute, the Pupil Plice-ment Act, Va. Code i 22-232.1 et seq. (1964), not re-pealed until 1966, divested local boards of authority toassign children to particular schools and placed thatauthority in a State Pupil Placement Board. Under thatAct 'children were each year automatically reassigned tothe school previously attended unless upon their applica-tion the State Board assigned them to another school;students seeking enrollment for the first time were alsoassigned at the discretion of the State Board. To Sep-tember 1964, no Negro pupil had applied for admission

I E. g., Griffin v. County School Board of Prince Edward County,377 U. S. 218; Green v. School Board of City of Roanoke, 304 F. 2d118 (C. A. 4th Cir. 1962); Adkins v. School Board of City of New-port News, 148 F. Supp. 430 (D. C. E. D. Va.), aE'd, 246 F. 2d 325(C. A. 4th Cir. 1957); James v. Almond, 170 F. Supp. 331 (D. C.E. D. Va. 1959); Harrison v. Day, 200 Va. 439, 106 S. E. 2d 636(1959).

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GREEN v. SCHOOL BOARD OF VA. 3

to the New Kent school under this statute and no whitepupil had applied for admission to the Watkins school.

The School Board initially sought dismissal of thissuit on the ground that petitioners had failed to applyto the State Board for assignment to New Kent school.However on August 2, 1965, five months after the suitwas brought, respondent School Board, in order to remaineligible for federal financial aid, adopted a "freedom-of-choice" plan for desegregating the schools! Under thatplan, each pupil may annually choose between the N.awKent and Watkins schools and, except for the first andeighth grades, pupils not making a choice are assignedto the school previously attended; first and eighth grade

* Congress, concerned with the lack of progress in school desegre-gation, included provisions in the Civil Rights Act of 1964 to dealwith the problem through various agencies of the Federal Govern-ment. 42 U. S. C. §§ 2000e et seq., 2000d et seq., 2000h-2. InTitle VI Congress declared that

"No person in the United States shall, on the ground of race,color, or national origin, be excluded from participation in, be denitdthe benefits of, or be subjected to discrimination under any programor activity receiving Federal financial assistance." 42 U. S. C.§ 2000d.

The Department of Health, Education, and Welfare issued regula-tions covering racial discrimination in federally aided school systems,as directed by 42 U. S. C. §2000d-1, and in a statement of policies,or "guidelines," the Department's Office of Education establishedstandards according to which school systems in the process of deseg-regation can remain qualified for federal funds. 45 CFR §§80..180.13, 181.1-181.76 (1967). "Freedom-of-choice" plans are amongthose considered acceptable, so long as in operation such a plan pioveseffective. 45 CFR § 181.54. The regulations provide that a schoolsystem "subject to a final order of a court of the United States forthe desegregation of such school . . . system" with which the systemagrees to comply is deemed to be in compliance with the statuteand regulations. 45 CFR § 80.4 (c). See also 45 CFR § 181.6.See generally Dunn, Title VI, the Guidelines and School Desegrega-tion in the South, 53 Va. L. Rev. 42 (1967); Note, 55 Geo. I J.325 (1966); Comment, 77 Yale L. J. 321 (1967) ,

IriArt 0 , . ,

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4 GREEN v. SCHOOL BOARD OF VA.

pupils must affirmatively choose a school. After the planwas filed the District Court denies petitioner's prayerfor an injunction and granted respondent leave to submitan amendment to the plan with respect to employmentand assignment of teachers and staff on a raciallynondis-criminatory basis. The amendment was duly filed andon June 28, 1966, the District Court approved the "free-dom-of-choice" plan as so amended. The Court of Ap-peals for the Fourth Circuit, en bane, 382 F. 2d 326, 338,3affirmed the District Court's approval of the "freedom-of-choice" provisions of the plan but remanded the case tothe District Court for entry of an order regarding faculty"which is much more specific and more comprehensive"and which would incorporate in addition to a "minimal,objective time table" some of the faculty provisions of thedecree entered by the Court of Appeals for the Fifth Cir-cuit in United States v. Jefferson County Board of Educa-tion, 372 F. 2d 836, -aff'd en ban; 380 F. 2d 385 (1967).Judges Sobeloff and Winters concurred with the remandon the teacher issue but otherwise disagreed, expressingthe view "that the District Court should be directed . . .also to set up procedures for periodically evaluating theeffectiveness of the [Board's] 'freedom of choice' [plan]in the elimination of other features of a segregated schoolsystem." 382 F. 2d, at 330. We granted certiorari,389 U. S. 1003.

The pattern of separate "white" and "Negro" schoolsin the New Kent County school system established undercompulsion of state laws is precisely the pattern of segre-gation to which Brown I and Brown II were particularlyaddressed, and which Brown I declared unconstitution-ally denied Negro school children equal protection of the

2 This case was decided per curiam on the basis of the opinion inBowman v. County School Board of Charles City County, 382 F.2d 326, decided the same day. Certiorari has not been sought forthe Bowman case itself.

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GREEN v. SCHOOL BOARD OF VA. 5

laws. Racial identification of the system's schools wascomplete, extending not just to the composition of stu-dent bodies at the twaschools but to every facet of schooloperationsfaculty, staff, transportation, extracurricularactivities and facilities. In short, the State, actingthrough the local school board and school officials, orga-nized and operated a dual system, part "white" and part"Negro."

.It was such dual systems that 14 years aw. Brown I

held unconstitutional and a year later Brown II heldmust be abolished; school boards operating such schoolsystems were required by Brown II "to effectuate atransition to a racially nondiscriminatory school system."349 U. S., at 301. It is of course true that for the timeimmediately after Brown II the concern was with makingan initial break in a long-established pattern of excludingNegro children from schools attended by white children.The principal focus was on obtaining for those Negrochildren courageous enough to break with tradition aplace in the "white" schools. See, e. g., Cooper v. Aaron,358 U. S. 1. Under Brown II that immediate goal wasonly the first step, however. The transition to a unitary,nonracial system of public education was and is theultimate end to be brought about; it was because of the"complexities arising from the transition to a system ofpublic education freed of racial discrimination" that weprovided for "all deliberate speed" in the implementationof the principles of Brown I. 349 U. S., at 299-301.Thus we recognized the task would necessarily involvesolution of "varied local school problems." Id., at 299.In referring to the "personal interest of the plaintiffs inadmission to public schools as soon as practicable on anondiscriminatory basis," we also noted that "Rio effec-tuate this interest may call for elimination of a varietyof obstacles in making the transition . . . ." Id., at 300.Yet we emphasized that the constitutional rights of

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6 GREEN v. SCHOOL BOARD OF VA.

Negro children required school officials to bear the burdenof establishing that additional time to carry out theruling in an effective manner "is necessary in the publicinterest and is consistent with good faith compliance atthe earliest practicable date." Ibid. We charged thedistrict courts in their review of particular situations to

"consider problems related to administration, arisingfrom the physical condition of the school plant, theschool transportation system, personnel, revision ofschool districts and attendance areas into compactunits to achieve a system of determining admissionto the public schools on a nonracial basis, and revi-sion of local laws and regulations which may benecessary in solving the foregoing problems. Theywill also consider the adequacy of any plans thedefendants may propose to meet these problems andto effectuate a transition to a racially nondiscrim-inatory school system." Id., at 300-301.

It is against this background that 13 years afterBrown II commanded the abolition of dual systems wemust measure the effectiveness of respondent SchoolBoard's "freedom-of-choice! plan to achieve that end.The School Board contends that it has fully dischargedits obligation by adopting a plan by which every student,regardless of race, may "freely" choose the school he willattend. The Board attempts to cast the issue in itsbroadest form by arguing that its "freedom-of-choice"plan may be faulted only by reading the FourteenthAmendment as universally requiring "compulsory inte-gration," a reading it insists the wording of the Amend-ment will not support. But that argument ignores thethrust of Brown II. In the light of the command ofthat case, what is involved here is the question whetherthe Board has achieved the "rnlially nondiscriminatoryschool system" Brown!! held must be effectuated in order

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GREEN v. SCHOOL BOARD OF VA. 7

to remedy the established unconstitutional deficiencies ofits segregated system. In the context of the state-imposed segregated pattern of long standing, the factthat in 1965 the Board opened the doors of the former"white" school to Negro children and of the "Negro"school to white Children merely begins, not ends, ourinquiry whether the Board has taken steps adequate toabolish its dual, segregated system. Brown II was acall for the dismantling of well-entrenched dual systemstempered by an awareness that complex and multifacetedproblems would arise which would require time and flex-ibility for a successful resolution. School boards such asthe respondent then operating state-compelled dual sys-tems were nevertheless clearly ch9rged with the affirma-tive duty to take whatever steps might be necessary toconvert to a unitary system in which racial discrimina-tion would be eliminated root and branch. See Cooperv. Aaron, supra, at 7; Bradley v. School Board, 382 U. S.103; cf. Watson v. City of Memphis, 373 U. S. 523. Theconstitutional rights of Negro school children articulatedin Brown I permit no less than this; and it was to thisend that Brown II commanded school boards to bendtheir efforts.'

In determining whether respondent School Board metthat command by adopting its "freedom-of-choice" plan,it is relevant that this first step did not come until some11 years after Brown I was decided and 10 years afterBrown II directed the making of a "prompt and reason-

4"We bear in mind that the court has not merely the power butthe .duty to render a decree which will so far as possible eliminatethe discriminatory effects of the past. as well as bar like discrimina-tions in the future." Louisiana v. United States, 380 U. S. 145,154. Compare the remwies discussed in, e. g., NLRB v. NewportNews Shipbuilding & Dry Dock Co., 308 U. S. 241; United States v.Crescent Ameusement Co., 323 U. S. 173; United States v. StandardOil Co., 221 U. S. 1. See also Griffin v. County School Board, 377U. S. 218, 232-234.

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8 GREEN v. SCHOOL BOARD OF VA.

able start." This deliberate perpetuation of the uncon-stitutional dual system can only have compoundedthe harm of such a system. Such delays are no longertolerable, for "the governing constitutional principles nolonger bear the imprint of newly enunciated doctrine."Watson v. City of Memphis, supra, at 529; see Bradley v.School Board, supra; Rogers v. Paul, 382 U. S. 198.Moreover, a plan that at this late date fails to providemeaningful assurance of prompt and effective disestab-lishment of a dual system is also intolerable. "The timefor mere 'deliberate speed' has run out," Griffin v. CountySchool Board, 377 U. S. 218, 234; "the context in whichwe must interpret and apply this language [of Brown II]to plans for desegregation has been significantly altered."Goss v. Board of Education, 373 U. S. 683, 689. SeeCalhoun v. Latimer, 377 U. S. 263. The burden on aschool board today is to come forward with a plan thatpromises realistically to work, and promises realisticallyto work now.

The obligation of the district courts, as it always hasbeen, is to assess the effectiveness of a proposed plan inachieving desegregation. There is no universal answerto complex problems of desegregation ; there is obviouslyno one plan that will do the job in every case. Thematter must be assessed in light of the circumstancespresent and the options available in each instance. Itis incumbent upon the school board to establish that itsproposed plan promises meaningful and immediateprogress toward disestablishing state-imposed segregation.It is incumbent upon the district court to weigh thatclaim in light of the facts at hand and in light of anyalternatives which may be shown as feasible and morepromising in their effectiveness. Where the court findsthe board to be acting in good faith and the proposedplan to have real prospects for dismantling the state-imposed dual system "at the earliest practicable date,"then the plan may be said to provide effective relief. Of

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GREEN v. SCHOOL BOARD OF VA. 9

course, where other, more promising courses of action areopen to the board, that may indicate a lack of good faith;and at the least it places a heavy burden upon the boardto explain its preference for an apparently less effectivemethod. Moreover, whatever plan is adopted will re-quire evaluation in practice, and the court should retainjurisdiction until it is clear that state-imposed segregationhas been completely removed. See No. 805, Raney v.Board of Education, post, at p. 5.

We do not hold that "freedom of choice" can have noplace in such a plan. We do not hold that a "freedom-of-choice" plan might of itself be unconstitutional, al-though that argument has been urged upon us. Rather,all we decide today is that in desegregating a dual systema plan utilizing "freedom of choice" is not an end in itself.As Judge Sobeloff has put it,

" 'Freedom of choice' is not a sacred talisman;it is only a means to a constitutionally requiredendthe abolition of the system of segregation andits effects. If the means prove effective, it is ac-ceptable, but if it fails to undo se egation, othermeans must be used to achieve this end. The schoolofficials have the continuing duty to take whateveraction may be necessary to create a 'unitary, non-racial system." Bowman v. County School Board,382 F. 2d 326, 333 (C. A. 4th Cir. 1967) (concurringopinion). Accord, Kemp v. Beasley, 389 F. 2d 178(C. A. 8th Cir. 1968) ; United States v. JeffersonCounty Board of Education, supra. -,

Although the general experience under "freedom ofchoice" to date has been such as to indicate its ineffective-ness as a tool of desegregation,' there may well be in-

5 The views of the United States Commission on Civil Rights,which we neither adopt nor refuse to adopt, are as follows:

"Freedom of choice plans, which have tended to perpetuate raciallyidentifiable schools in the Southern and border States, require

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10 GREEN v. SCHOOL BOARD OF VA.

stances in which it can serve as an effective device.Where it offers real promise of aiding a desegregationprogram to effectuate conversion of a state-imposed dualsystem to a unitary, nonracial system there might be noobjection to allowing such a device to prove itself inoperation. On the other hand, if there are reasonablyavailable other ways, such for illustration as zoning,promising speedier and more effective conversion to a

affirmative action by both Negro and white parents and pupilsbefore such disestablishment can be achieved. There are a numberof factors which have prevented such affirmative action by substan-tial numbers of parents and pupils of both races:

"(a) Fear of retaliation and hostility from the white communitycontinue to deter many Negro families from choosing formerly all-white schools;

"(b) During the past school year [1966-1967), as in the previousyear, in some areas of the South, Negro families with children attend-ing previously all-white schools under free choice plans were targetsof violence, threats of violence and economic reprisals by whitepersons and Negro children were subjected to harassment by whiteclassmates notwithstanding conscientious efforts by many teachersand principals to prevent such misconduct;

"(c) During the past school year, in some areas of the Southpublic officials improperly influenced Negro families to keep theirchildren in Negro schools and excluded Negro children attendingformerly all-white schools from official functions;

"(d) Poverty deters many Negro families in the South fromchoosing formerly all-white schools. Some Negro parents are em-barrassed to permit their children to attend such schools withoutsuitable clothing. In some districts special fees are assessed forcourses which are available only in the white schools;

"(e) Improvements in facilities and equipment . . . have beeninstituted in all-Negro schools in some school districts in a mannerthat tends to discourage Negroes from selecting white schools."Southern School Desegregation, 1966-1967, at 88 (1967). See id.,at 45-69; Survey of School Desegregation in the Southern andBorder States 1965-1966, at 30-44, 51-52 (U. S. Comm'n on CivilRights 1966).

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GREEN v. SCHOOL BOARD OF VA. 11

unitary, nonracial school system, "freedom of choice"must be held unacceptable.

The New Kent School Board's "freedom-of-choice"plan cannot be accepted as a sufficient step to "effectuatea transition" to a unitary system. In three years of oper-ation not a single white child has chosen to attend Wat-kins school and although 115 Negro children enrolledin New Kent school in 1967 (up from 35 in 1965 and 111in 1966) 85% of the Negro children in the system stillattend the all-Negro Watkins school. In other words,the school system remains a dual system. Rather thanfurther the dismantling of the dual system, the plan hasoperated simply to burden children and their parentswith a responsibility which Brown. II placed squarely onthe School Board. The Board must be required to for-.mulate a new plan and, in light of other courses whichappear open to the Board, such as zoning,6 fashion steps

6"In view of the situation found in New Kent County, wherethere is no residential segregation, the elimination of the dual schoolsystem and the establishment of a 'unitary, non-racial system' couldbe readily achieved with a minimum Of administrative difficulty bymeans of geographic zoningsimply by assigning students livingin the eastern half of the county to the New Kent School and thoseliving in the western half of the county to the Watkins School.Although a geographical formula is not universally appropriate, itis evident that here the Board, by separately busing Negro childrenacross the entire county to the 'Negro' school, and the white childrento the 'white' school, is deliberately maintaining a segregated systemwhich would vanish with non-racial geographic zoning. The con-ditions in this county present a classical case for this expedient."Bowman v. County School Board, supra, n. 3, at 332 (concurringopinion).

Petitioners have also suggested that the Board could consolidatethe two schools, one site (e. g., Watkins) serving grades 1-7 andthe other (e. g., New Kent) serving grades 8-12, this being thegrade division respondent makes between elementary and secondarylevels. Petitioners contend this would result in a more efficient

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12 GREEN v. SCHOOL BOARD OF VA.

which promise realistically to convert promptly to asystem without a "white'. school and a "Negro" school,but just schools.

The judgment of the Court of Appeals is vacated inso-far as it affirmed the District Court and the case isremanded to the District Court for further proceedingsconsistent with this opinion.

It is so ordered.

system by eliminating costly duplication in this relatively small dis-trict while at the same time achieving immediate dismantling of thedual system.

These are two suggestions the District Court should take intoaccount upon remand, along with any other proposed alternativesand in light of considerations respecting other aspects of the schoolsystem such as the matter of faculty and staff desegregationremanded to the court by the Court of Appeals.

142

NOTE: Where It is deenied desirable, a syllabus (headnote) willbe released, as Is being done in connection with this case, at the timethe opinion is issued. The syllabus constitutes no part of the opinionof the Court but has been prepared by the Reporter of Decisions forthe convenience of the reader. See United States v. Detroit Lumber0o., 200 U.S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

SWANN ET AL. V. CHARLOTTE- MECKLENBDRGBOARD OF EDUCATION ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALSFOR THE FOURTH CIRCUIT

No. 281. Argued October 12, 1970Decided April 20, 1971*

The Charlotte-Mecklenburg school system, which includes the city ofCharlotte, North Carolina, had more than 84,000 students in 107

schools in the 1968-1969 school year. Approximately 29%(24,000) of the pupils were Negro, about 14,000 of whom attended21 schools that were at least 99% Negro. This resulted froma desegregation plan approv.A by the District Court in 1905, atthe commencement of this litigation. In 1968 petitioner Swannmoved for further relief based on Green v. County School Board,391 il. S. 430, which required school boards to "come forward with

a plan that promises realistically to work . . , now . . . until itis clear that state-imposed segregation has been completely re-moved." The District Court ordered the school board in April1969 to provide a plan for faculty and student desegregation.

Finding the board's submission unsatisfactory, the District Courtappointed an expert to submit a desegregation plan. In February1970, the expert and the board presented :Ins, and the courtadopted the board's plan, as modified, for the junior and seniorhigh schools, and the expert's proposed plan for the elementaryschools. The Court of Appeals affirmed the District Court'sorder as to faculty desegregation and the secondary school plans,

but vacated the order respecting elementary schools, fearing that

the provisions for pairing and grouping of elementary schoolswould unreasonably burden the pupils and the board. The casewas remanded to the District Court for reconsideration and sub-mission of further plans. This Court granted certiorari and di-

*Together with No. 349, Charlotte-Mecklenburg Board of Educa-

tion et al. v. Swann et al., also on certiorari to the same court.

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is SWANN v. BOARD OF EDUCATION

Syllabus

rected reinstatement of the District Court's order pending furtherproceedings in that court. On remand the District Court receivedtwo new plans, and ordered the board to adopt a plan, or theexpert's plan would remain in effect. After the board "acquiesced"in the expert's plan, the District Court directed that it remain ineffect. Held:

1. Today's objective is to eliminate from the public schools allvestiges of state-imposed segregation that was held violative ofequal protection guarantees by Brown v. Board of Education, 347U. S. 483, in 1954. 10-11.

2. In default by the school authorities of their affirmative obli-gation to proffer acceptable remedies, the district courts havebroad power to fashion remedies that will assure unitary schoolsystems. Pp. 11-12.

3. Title IV of the Civil Rights Act of 1964 does not restrict orwithdraw from the federal courts their historic equitable remedialpowers. The proviso in 42 U. S. C. § 2000c-6 was designed simplyto foreclose any interpretation of the Act as expanding the existingpowers of the federal courts to enforce the Equal Protection Clause.Pp. 12-13.

4. Policy and practice with regard to faculty, staff, transporta-tion, extracurricular activities, and facilities are among the mostimportant indicia of a segregated system, and the first remedialresponsibility of school authorities is to eliminate invidious racialdistinctions in those respects. Normal administrative practiceshould then produce schools of like quality, facilities, and staffs.P. 14.

5. The Constitution does not prohibit district courts from usingtheir equity power to order assignment of teachers to achieve aparticular degree of faculty desegregation. United States v. Mont-gomery County Board of Education, 395 U. S. 225, was properlyfollowed by the lower courts in this case. Pp. 14-16.

6. In devising remedies to eliminate legally imposed segregation,local authorities and district courts must see to it that futureschool construction and abandonment are not used and do notserve to perpetuate or re-establish a dual system. Pp. 16-17.

7. Four problem areas exist on the issue of student assignment:(1) Racial quotas. The constitutional command to desegre-

gate schools does not mean that every school in the communitymust always reflect the racial composition of the system as awhole; here the District Court's very limited use of the racialrationot as an inflexible requirement, but as a starting point

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SWANN v. BOARD OF EDUCATION In

Syllabus

in shaping a remedywas within its equitable discretion. Pp.18-21.

(2) One-race schools. While the existence of a small numberof one-race, or virtually one-race, schools does not in itself denotea system that still practices segregation liy law, the court shouldscrutinize such schools and require the school authorities to satisfythe court that the racial composition does not result from presentor past discriminatory action on their part. Pp. 21-22.

An optional majority -to- minority transfer provision has longbeen recognized as a useful part of a desegregation plan, and tobe effective such arrangement must provide the transferring sin-dent free transportation and available space in the school to whichhe desires to move. P. 22.

(3) Attendance zones. The remedial altering of attendancezones is not, as an interim corrective measure, beyond the remedialpowers of a district court. A student assignment plan is notacceptable merely because it appears to be neutral, for such aplan may fail to counteract the continuing effects of past schoolsegregation. The pairing and grouping of noncontiguous zones isa permissible tool; judicial steps going beyond contiguous zonesshould be examined in light of the objectives to be sought. No

rigid rules can be laid down to govern conditions in differentlocalities. Pp. 23-25.

(4) Transportation. The District Court's conclusion thatassignment of children to the school nearest their home servingtheir grade would not effectively dismantle the dual school systemis supported by the record, and the remedial technique of requiringbus transportation as a tool of school desegregation was withinthat court's power to provide equitable relief. An objection totransportation of students may have validity when the time ordistance of travel is so great as to risk either the health of thechildren or significantly impinge on the educational process; limits

on travel time will vary with many factors, but probably withnone more than the age of the students. Pp. 25-27.

8. Neither school authorities nor district courts are constitu-

tionally required to make year-by-year adjustments of the racialcomposition of student bodies once a unitary system has been

achieved. Pp. 27-28.431 F. 2d 138, affirmed as to those parts in which it affirmed the

District Court's judgment. The District Court's order of Au-gust 7,1970, is also affirmed.

BURGER, C. J., delivered the opinion for a unaninn is Court.

145

NOTICE: This opinion is subject to formal ftIPIOD before publicationin the preliminary print of the United States Reports. Readers are re-quested to notify the Reporter of Decisions, Supreme Court of theUnited States, NNashIngton, D.C. 20543, of any typographical or otherformal errors. In order that corrections may be made before the pre-limlnary print goes to press.

SUPREME COURT OF THE UNITED STATES

Nos. 281 AND 349.OcrosER TERM, 1970

James E. Swann et al.,Petitioners,

281 v.

Charlotte-MecklenburgBoard of Education

et al.

Charlotte.-MecklenburgBoard of Education

et al., Petitioners,349 v.

James E. Swann et al.

On Writs of Certiorari to theUnited States Court of Ap-peals for the Fourth Circuit.

[April 20, 1971]

MR. CHIEF JUSTICE ,BURGER delivered the opinion ofthe Court.

We granted certiorari in this case to review importantissues as to the duties of school authorities and the scopeof powers of federal courts under this Court's mandatesto eliminate racially separate public schools establishedand maintained by state action. Brown v. Board ofEducation, 347 U. S. 483 (1954).

This case and those argued with it 1 arose in states hav-ing a long history of maintaining two sets of schools in asingle school system deliberately operated to carry out a

1 McDaniel v. Barresi, No. 420; Davis v. Board of School Com-missioners of Mobile County, No. 436; Moore v. Charlotte-Mecklen-burg Board of Education, No. 444; North Carolina State Board ofEducation v. Swann, No. 498. For purposes of this opinion thecross-petitions in Nos. 281 and 349 are treated as a single case andwill be referred to as "this case."

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2 SWANN v. BOAIID OF EDUCATION

governmental policy to separate pupils in schools solelyon the basis of race. That was what Brown v. Board ofEducation was all about. These cases present us withthe problem of defining in more precise terms than here-tofore the scope of the duty of school authorities anddistrict courts in implementing Brown I and the man-date to eliminate dual systems and establish unitarysystems at once. Meanwhile district courts and courtsof appeals have struggled in hundreds of cases with amultitude and variety of problems under this Court'sgeneral directive. Understandably, in an area of evolv-ing remedies, those courts had to improvise and experi-ment without detailed or specific guidelines. This Court,in Brown I, appropriately dealt with the large consti-tutional principles; other federal courts had to grapplewith the flinty, intractable realities of day-to-day imple-mentation of those constitutional commands. Theirefforts, of necessity, embraced a process of "trial anderror," and our effort to formulate guidelines must takeinto account their experience.

I

The Charlotte-Mecklenburg school system, the 43dlargest in the Nation, encompasses the city of Charlotteand surrounding Mecklenburg County, North Carolina.The area is large-550 square milesspanning roughly22 miles east-west and 36 miles north-south. During the1968-1969 school year the system served more than 84,000pupils in 107 schools. Approximately 71% of thepupils were found to be white and 29% Negro. As ofJune 196g there were approximately 24,000 Negro stu-dents in the. system, of whom 21,000 attended schoolswithin the city of Charlotte. Two-thirds of those21,000--approximately 14,000 Negro studentsattended21 schools which were either totally Negro or more than99% Negro.

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SWANN v. BOARD OF EDUCATION 3

This situation came about under a desegregation planapproved by the District Court at the commencementof the present litigation in 1965, 243 F. Supp. 367(WDNC), aff'd, 339 F. 2d 29 (CA4 1966), based upongeographic zoning with a free transfer provision. Thepresent proceedings were initiated in September 1968 byPetitioner Swann's motion for further relief based onGreen v. County School Board, 391 IT. S. 430 (1968), andits companion cases.2 All parties now agree that in 1969the system fell short of achieving the unitary schoolsystem that those cases require.

The District Court held numerous hearings and re-ceived voluminous evidence In addition to finding cer-tain actions of the school board to be discriminatory,the court also found that residential patterns in the cityand county resulted in part from federal, state, and localgovernment action other than school board decisions.School board action based on the te patterns, for example,by locating schools in Negro residential areas and fixingthe size of the schools to accommodate the needs of im-mediate neighborhoods, resulted in segregated education.These findings were subsequently accepted by the Courtof Appeals.

In April 1969 the District Court ordered the schoolboard to come forward with a plan for both faculty andstudent desegregation. Proposed plans were acceptedby the court in June and August 1969 on an interim basisonly, and the board was ordered to file a third plan byNovember 1969. In November the board moved for anextension of time until February 1970, but when thatwas denied the board submitted a partially completedplan. In December 1969 the District Court held thatthe board's submission was unacceptable and appointedan expert in education administration, Dr. John Finger,

2 Raney v. Board of Education, 391 U. S. 443 (1968), andMonroe v. Board of Commissioners, 391 U. S. 450 (1968).

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4 SWANN v. BOARD OF EDUCATION

to prepare a desegregation plan. Thereafter in Feb-ruary 1970, the District Court was presented with twoalternative pupil assignment plansthe finalized "boardplan" and the "Finger plan."

The Board Plan. As finally submitted, the schoolboard plan closed seven schools and reassigned theirpupils. It restructured school attendance zones toachieve greater racial balance but maintained existinggrade structures and rejected techniques such as pairingand clustering as part of a desegregation effort. Theplan created a single athletic league, eliminated the pre-viously racial basis of the school bus system, providedracially mixed faculties and administrative staffs, andmodified its free transfer plan into an optional majority-to-minority transfer system.

The board plan proposed substantial assignment ofNegroes to nine of the system's 10 high schools, produc-ing 17% to 36% Negro population in each. The pro-jected Negro attendance at the 10th school, Independence,was 2%. The proposed attendance zones for the highschools were typically shaped like wedges of a pie, extend-ing outward from the center of the city to the suburbanand rural areas of the county in order to afford residentsof the center city area access to outlying schools.

As for junior high schools, the board plan rezoned the21 school areas so that in 20 the Negro attendance wouldrange from 0% to 38%. The other school, located inthe heart of the Negro residential area, was left with anenrollment of 90% Negro.

The board plan with respect to elementary schools re-lied entirely upon gerrymandering of geographic zones.More than half of the Negro elementary pupils were leftin nine schools that were 86% to 100% Negro; approxi-mately half of the white elementary pupils were as-signed to schools 86% to 100% white.

The Finger Plan. The plan submitted by the court-appointed expert, Dr. Finger, adopted the school board

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SWANN v. BOARD OF EDUCATION 5

zoning plan for senior high schools with one modification:it required that an additional 300 Negro students betransported from the Negro residential area of the cityto the nearly all-white Independence High School.

The Finger plan for the junior high schools employedmuch of the rezoning plan of the board, combined withthe creation of nine "satellite" zones.' Under the satel-lite plan, inner-city Negro students were assigned by at-tendance zones to nine outlying predominately whitejunior high schools, thereby substantially desegregatingevery junior high school in the system.

The Finger plan departed from the board plan chieflyin its handling of the system's 76 elementary schools.Rather than relying solely upon geographic zoning, Dr.Finger proposed use of zoning, pairing, and groupingtechniques, with the result that student bodies through-out the system would range from 9% to 38% Negro'

The District Court described the plan thus:"Like the Board plan, the Finger plan does as muchby rezoning school attendance lines as can reasonablybe accomplished. However, unlike the board plan,it does not stop there. It goes further and desegre-gates all the rest of the elementary schools by thetechnique of grouping two or three outlying schools

2 A "satellite zone" is an area which is not contiguous with themain attendance zone surrounding the school.4 In its opinion and order of December 1, 1969, later incorporated

in the order appointing Dr. Finger as consultant, the District Courtstated:

"Fixed ratios of pupils in particular schools will not be set.If the board in one of its three tries had presented a plan fordesegregation, the court would have sought ways to approve varia-tions in pupil ratios. In default of such a plan from the schoolboard, tic court will start with the thought . . . that efforts shouldbe made to reach a 71-29 ratio in the various schools so that therewill be no basis for contending that one school is racially differentfrom the others, but to understand that variations from that normmay be unavoidable."

I

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6 SWANN v. BOARD OF EDUCATION

with one black inner city school; by transportingblack students from grades one through four to theoutlying white schools; and by transporting whitestudents from the fifth and sixth grades from theoutlying white schools to the inner city black school."

Under the Finger plan, nine inner-city Negro schoolswere grouped in this manner with 24 suburban whiteschools.

On February 5, 1970, the District Court adopted theboard plan, as modified by Dr. Finger, for the junior andsenior high schools. The court rejected the board ele-mentary school plan and adopted the Finger plan aspresented. Implementation was partially stayed by theCourt of Appeals for the Fourth Circuit on March 5, andthis Court declined to disturb the Fourth Circuit's order,397 U. S. 978 (1970).

On appeal the Court of Appeals affirmed the DistrictCourt's order as to faculty desegregation and the second-ary school plans, but vacated the order respecting ele-mentary schools. While agreeing that the District Courtproperly disapproved the board plan concerning theseschools, the Court of Appeals feared that the pairing andgrouping of elementary schools would place an unrea-sonable burden on the board and the system's pupils.The case was remanded to the District Court for recon-sideration and submission of further plans. This Courtgranted certiorari, 399 U. S. 926, and directed reinstate-ment of the District Court's order pending further pro-ceedings in that court.

On remand the District Court received two new plansfor the elementary schools: a plan prepared by theUnited States Department of Health, Education, andWelfare (the HEW plan) based on contiguous groupingand zoning of schools, and a plan prepared by four mem-bers of the nine-member school board (the minority plan)achieving substantially the same results as the Finger

151

SWANN v. BOARD OF EDUCATION 7

plan but apparently with slightly less transportation. Amajority of the school board declined to amend its pro-posal. After a lengthy evidentiary hearing the DistrictCourt concluded that its own plan (the Finger plan), theminority plan, and an earlier draft of the Finger planwere all reasonable and acceptable. It directed the boardto adopt one of the three or in the alternative to comeforward with a new, equally effective plan of its own;the court ordered that the Finger plan would remain ineffect in the event the school board declined to adopt anew plan. On August 7, the board indicated it would"acquiesce" in the Finger plan, reiterating its view thatthe plan was unreasonable. The District Court, by orderdated August 7, 1970, directed that the Finger plan re-main in effect.

II

Nearly 17 years ago this Court held, in explicit terms,that state-imposed segregation by race in public schoolsdenies equal protection of the laws. At no time has theCourt deviated in the slightest degree from that holdingor its constitutional underpinnings. None of the partiesbefore us challenges the Court's decision of May 17,1954,that

"in the field of public education the doctrine of`separate but equal' has no place. Separate educa-tional facilities are inherently unequal. Therefore,we hold that the plaintiffs and others similarly situ-ated . . . are, by reason of the segregation com-plained of, deprived of the equal protection of thelaws guaranteed by the Fourteenth Amendment... .

"Because these are class actions, because of thewide applicability of this decision, and because ofthe great variety of local conditions, the formulationof decrees in these cases presents problems of con-siderable complexity." Brown v. Board of Educa-tion, supra, at 495.

152

8 SWANN v. BOARD OF EDUCATION

None of the parties before us questions the Court's1955 holding in Brown II, that

"[s]chool authorites have the primary responsibilityfor elucidating, assessing, and solving these prob-lems; courts will have to consider whether the actionof school authorities constitutes good faith imple-mentation of the governing ccnstitutional principles.Because of their proximity to local conditions andthe possible need for further hearings, the courtswhich originally heard these cases can best performthis judicial appraisal. Accordingly, we believe itappropriate to remand the cases to those courts.

"In fashioning and effectuating the decrees, thecourts will be guided by equitable principles. Tra-ditionally, equity has been characterized by a prac-tical flexibilty in shaping its remedies and by afacility for adjusting and reconciling public andprivate needs. These cases call for the exercise ofthese traditional attributes of equity power. Atstake is the personal interest of the plaintiffs in ad-mission to public schools as soon as practicable on anondiscriminatory basis. To effectuate this inter-est may call for elimination of a variety of obstaclesin making the transition to school systems operatedin accordance with the constitutional principles setforth in our May 17, 1954, decision. Courts ofequity may properly take into account the publicinterest in the elimination of such obstacles in asystematic and effective manner. But it should gowithout saying that the vitality of these constitu-tional principles cannot be allowed to yield simplybecause of disagreement with them." Brown v.Board of Education, 349 U. S. 294, 299-300 (1955).

Over the 15 years since Brown II, many difficultieswere encountered in implementation of the basic con-stitutional requirement that the State not discriminate

40

153

SWANN v. BOARD OF EDUCATION 9

between public school children on the basis of their race.Nothing in our national experience prior to 1955 preparedanyone for dealing with changes and adjustments of themagnitude and complexity encountered since then. De-liberate resistance of some to the Court's mandates hasimpeded the good-faith efforts of others to bring schoolsystems into compliance. The detail and nature of thesedilatory tactics have been noted frequently by this Courtand other courts.

By the time the Court considered Green v. CountySchool Board, 391 U. S. 430, in 1968, very little prog-ress had been made in many areas where dual schoolsystems had historically been maintained by operationof state laws. In Green, the Court was confrontedwith a record of a freedom-of-choice program that theDistrict Court had found to operate in fact to pre-serve a dual system more than a decade after Brown II.While acknowledging that a freedom-of-choice conceptcould be a valid remedial measure in some circumstances,its failure to be effective in Green required that

"The burden on a school board today is to come for-ward with a plan that promises realistically towork . . . now ... until it is clear that state-imposedsegregation has been completely removed." Green,at 439.

This was plain language, yet the 1969 Term of Courtbrought fresh evidence of the dilatory tactics of manyschool authorities. Alexander v. Holmes County Boardof Education, 396 U. S. 19, restated the basic obligationasserted in Griffin v. School Board, 377 U. S. 218, 234(1964), and Green, supra, that the remedy must be im-plemented forthwith.

The problems encountered by the district courts andcourts of appeals make plain that we should now try toamplify guidelines, however incomplete and imperfect,

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10 SWANN v. BOARD OF EDUCATION

for the assistance of school authorities and courts.5 Thefailure of local authorities to meet their constitutionalobligations aggravated the massive problem of convert-ing from the state-enforced discrimination of raciallyseparate school systems. This process has been renderedmore difficult by changes since 1954 in the structure andpatterns of communities, the growth of student popula-tion,6 movement of families, and other changes, someof which had marked impact on school planning, some-times neutralizing or negating remedial action before itwas fully implemented. Rural areas accustomed forhalf a century to the consolidated school systems imple-mented by bus transportation could make adjustmentsmore readily than metropolitan areas with dense andshifting population, numerous schools, congested andcomplex traffic patterns.

IIIThe objective today remains to eliminate from the

public schools all vestiges of state-imposed segregation.Segregation was the evil struck down by Brown I ascontrary to the equal protection guarantees of the Con-stitution. That was the violation sought to be correctedby the remedial measures of Brown II. That was thebasis for the holding in Green that school authoritiesare "clearly charged with the affirmative duty to takewhatever steps might be necessary to convert to a unitarysystem in which racial discrimination would be eliminatedroot and branch." 391 U. S., at 437-438.

5 The necessity for this is suggested by the situation in the FifthCircuit where 166 appeals in school desegregation cases were heardbetween December 2, 1969, and September 24, 1970.

Elementary public school population (grades 1-6) grew from17,447,000 in 1954 to 23,103,000 in 1969; secondary school popula-tion grew from 11,183,000 in 1954 to 20,775,000 in 1969. Digest ofEducational Statistics, 1964 ed. 1, 6, Office of Education Publication# 10024-64; Digest of Educational Statistics, 1970 ed, Table 28,Office of Education Publication # 10024-70.

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SWANN v. BOARD OF EDUCATION 11

If school authorities fail in their affirmative obligationsunder these holdings, judicial authority may be invoked.Once a right and a violation have been shown, the scopeof a district court's equitable powers to remedy pastwrongs is broad, for breadth and flexibility are inherentin equitable remedies.

"The essence of equity jurisdiction has been thepower of the Chancellor to do equity and to mouldeach decree to the necessities of the particular case.Flexibility rather than rigidity has distinguished it.The qualities of mercy and practicality have madeequity the instrument for nice adjustment and recon-ciliation between the public interest and privateneeds as well as between competing private claims."Hecht Co. v. Bowles, 321 U. S. 329-330 (1944),cited in Brown II, supra, at 300.

This allocation of responsibility once made, the Courtattempted from time to time to provide some guidelinesfor the exercise of the district judge's discretion andfor the reviewing function of the courts of appeals. How-ever, a school desegregation case does not differ funda-mentally from other cases involving the framing ofequitable remedies to repair the denial of a constitutionalright. The task is to correct, by a balancing of the in-dividual and collective interests, the condition that of-fends the Constitution.

In seeking to define even in broad and general termshow far this remedial power extends it is important tore nember that judicial powers may be exercised only onthe basis of a constitutional violation. Remedial judi-cial authority does not put judges automatically in theshoes of school authorities whose powers are plenary.Judicial authority enters only when local authoritydefaults.

'4

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12 SWANN v. BOARD OF EDUCATION

School authorities are traditionally charged with broadpower to formulate and implement educational policyand might well conclude, for example, that in orderto prepare students to live in a pluralistic societyeach school should have a prescribed ratio of Negro to -white students reflecting the proportion for the districtas a whole. To do this as an educational policy is withinthe broad discretionary powers of school authorities; ab-sent a finding of a constitutional violation, however, thatwould not be within the authority of a federal court.As with any equity case, the nature of the violation de-termines the scope of the remedy. In default by theschool authorities of their obligation to proffer acceptableremedies, a district court has broad power to fashion aremedy that will assure a unitary school system.

The school authorities argue that the equity powers offederal district courts have been limited by Title IV ofthe Civil Rights Act of 1964, 42 U. S. C. § 2000c. Thelanguage and the history of Title IV shows that it wasnot enacted to limit but to define the role of the FederalGoverninent in the implementation of the Brown I de-cision. It authorizes the Commissioner of Education toprovide technical assistance to local boards in the prepara-tion of desegregation plans, to arrange "training insti-tutes" .for school personnel involved in desegregationefforts, and to make grants directly to schools to ease thetransition to unitary systems. It also authorizes theAttorney General, in specified circumstances, to initiatefederal desegregation suits. Section 2000c (b) defines"desegregation" as it is used in Title IV:

" 'Desegregation' means the assignment of studentsto public schools and within such schools withoutregard to their race, color, religion, or national origin,but 'desegregation' shall not mean the assignment of

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SWANN v. BOARD OF EDUCATION 13

students to public schools in order to overcome racialimbalance."

Section 2000c-6, authorizing the Attorney General to in-stitute federal suits, contains the following proviso:

"nothing herein shall empower any official or courtof the United States to issue any order seeking toachieve a racial balance in any school by requiringthe transportation of pupils or students from oneschool to another or one school district to anotherin order to achieve such racial balance, or otherwiseenlarge the existing power of the court to insurecompliance with constitutional standards."

On their face, the sections quoted purport only to in-sure that the provisions of Title IV of the Civil RightsAct of 1964 will not be read as granting new powers. Theproviso in § 2000c-6 is in terms designed to foreclose anyinterpretation of the Act as expanding the existing powersof federal courts to enforce the Equal Protection Clause.There is no suggestion of an intention to restrict thosepowers or withdraw from courts their historic equitableremedial powers. The legislative history of Title IVindicates that Congress was ncerned that the Actmight be read as creating a right of action under theFourteenth Amendment in the situation of so-called "defacto segregation," where racial imbalance exists in theschools but with no showing that this was brought aboutby discriminatory action of state authorities. In short,there is nothing in the Act which provides us materialassistance in answering the question of remedy for statc-imposed segregation in violation of Brown I. The basisof our decision must be the prohibition of the FourteenthAmendment that no State shall "deny to any personwithin its jurisdiction the equal protection of the laws."

71-526 0 - 72 - 11

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14 SWANN v. BOARD OF EDUCATION

IV

We turn now to the problem of defining with moreparticularity the responsibilities of school authorities indesegregating a state-enforced dual school system in 14111of the Equal Protection Clause. Although the severalrelated cases before us are primarily concerned with prob-lems of student assignment, it may be helpful to beginwith a brief discussion of other aspects of the process.

In Green, we pointed out that existing policy and prac-tice with regard to faculty, staff, transportation, extra-curricular activities, and facilities were a ,nong the mostimportant indicia of a segregated system. 391 U. S., at435. Independent of student assignm ant, where it ispossible to identify a "white school" or a "Negro school"simply by reference to the racial composition of teachersand staff, the quality of school buildings and equipment,or the organization of sports activities, a prima facie caseof violation of substantive constitutional rights underthe Equal Protection Clause is shown.

When a system has been dual in these respects, thefirst remedial responsibility of school authorities is toeliminate invidious racial distinctions. With respect tosuch matters as transportation, supporting personnel, andextracurricular activities, no more than this may be nec-essary. Similar corrective action must be taken withregard to the maintenance of buildings and the distribu-tion of equipment. In these areas, normal administra-tive practice should produce schools of like quality,facilities, and staffs. Something more must be said,however, as to faculty assignment and new schoolconstruction.

In the companion Davis case, the Mobile school boardhas argued that the Constitution requires that teachersbe assigned on a "color blind" basis. It also argues that

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the Constitution prohibits district courts from using theirequity power to order assignment of teachers to achievea particular degree of faculty desegregation. We rejectthat contention.

In United States v. Montgomery County Board ofEducation, 395 U. S. 225 (1969), the District Court setas a goal a plan of faculty assignment in each school witha ratio of white to Negro faculty members substantiallythe same throughout the system. This order was predi-cated on the District Court findin; that

"The evidence does not reflect any real administra-tive problems involved in immediately desegregatingthe substitute teachers, the student teachers, thenight school faculties, and in the evolvement of areally legally adequate program for the substantialdesegregation of the faculties of all schools in thesystem commencing with the school year 1968-69."Quoted at 395 U. S., at 232.

The District Court in Montgomery then proceeded toset an initial ratio for the whole system of at least twoNegro teachers out of each 12 in any g;ven school. TheCourt of Appeals modified the order by eliminating whatit regarded as "fixed mathematical ratios" of faculty andsubstituted an initial requirement, of "substantially orapproximately" a five-to-one ratio. With respect to thefuture, the Court of Appeals held that the numericalratio should be eliminated and that compliance shouldnot be tested solely by the achievement of specified pro-portions. Id., at 234.

We reversed the Court of Appeals and restored theDistrict Court's order in its entirety, holding that theorder of the District Judge

"was adopted in the spirit of this Court's opinion inGreen . . . in that nis plan 'promises realistically to

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16 SWANN v. BOARD OF EDUCATION

work, and promises realistically to work now.' Themodifications ordered by the . panel of the Courtof Appeals, while of course not intended to do so,would, we think, take from the order some of itscapacity to expedite, by means of specific commands,the day when a completely unified, unitary, nondis-criminatory school system becomes a reality insteadof s hope. . . . We also believe that under all thecircumstances of this case we follow the original planoutlined in Brown II . . . by accepting the morespecific and expeditious order of [District] JudgeJohnson , . . ." 395 U. S., at 235-236 (emphasisin original).

The principles of Montgomery have been properly fol-lowed by the District Court and the Court of Appealsin this case.

The construction of new schools and the closing of oldones is one of the most important functions of localschool authorities and also one of the most complex.They must decide questions of location and capacity inlight of population growth, finances, land values, siteavailability, through an almost endless list of factors tobe considered. The result of this will be a decisionwhich, when combined with one technique or anotherof student assignment, will determine the racial composi-tion of the student body in each school in the system.Over the long run, the consequences of the choices willbe far reaching. Peoij; gravitate toward school facili-ties, just as schools are located in response to the needsof people. The location of schools may thus influencethe patterns of residential development of a metropolitanarea and have important impact en composition of innercity neighborhoods.

In the past, choices in this respect have been used asa potent weapon for creating or maintaining a state-segregated school system. In addition to the classic

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pattern of Luilding schools specifically intended for Negroor white students, school authorities have sometimes,since Brown, closed schools which appeared likely tobecome racially mixed through changes in neighborhoodresidential patterns. This was sometimes accompaniedby building new schools in the areas of white suburbanexpansion farthest from Negro population centers inorder to maintain the separation of the races with aminimum departure from the formal principles of "neigh-borhood zoning." Such a policy does more than simplyinfluence the short-run composition of the student bodyof a new school. It may well promote segregated resi-dential patterns which, when combined with "neighbor-hood zoning," further lock the school system into themold of separation of the races. Upon a proper showinga district court may consider this in fashioning a remedy.

In ascertaining the existence of legally imposed schoolsegregation, the existence of a pattern of school construc-tion and abandonment is thus a factor of great weight.In devising remedies where legally imposed segregationhas been established, it is the responsibility of localauthorities and district courts to see to it that futureschool construction and abandonment is not used anddoes not serve to perpetuate or re-establish the dual sys-tem. When necessary, district courts should retainjurisdiction to assure that these responsibilities arecarried out. Cf. United States v. Board of Public In-struction, 395 F. 2d 66 (CA5 1968); Brewer v. SchoolBoard, 397 F. 2d 37 (CA4 1968).

V

The central issue in this case is that of student assign-ment, and there are essentially four problem areas:

(1) to what extent racial balance or racial quotas maybe used as an implement in a. remedial order to correcta previously segregated system;

18 SWANN v. BOARD OF EDUCATION

(2) whether every all-Negro and all-white school mustbe eliminated as an indispensable part of a remedialprocess of desegregation;

(3) what are the limits, if any, on the rearrangementof school districts and attendance zones, as a remedialmeasure; and

(4) what are the limits, if any, on the use of transpor-tation facilities to correct state-enforced racial schoolsegregation.

(1) Racial Balances or Racial Quotas.The constant theme and thrust of every holding from

Brown I to date is that state-enforced separation of racesin public schools is discrimination that violates the EqualProtection Clause. The remedy commanded was to dis-mantle dual school systems.

We are concerned in these cases with the eliminationof the discrimination inherent in the dual school systems,not with myriad factors of human existence which cancause discrimination in a multitude of ways on racial,religious, or ethnic grounds. The target of the casesfrom Brown I to the present was the dual school system.The elimination of racial discrimination in public schoolsis a large task and one that should not be retarded byefforts to achieve broader purposes lying beyond thejurisdiction of school authorities. One vehicle can carryonly a limited amount of baggage. It would not servethe important objective of Brown I to seek to use schooldesegregation cases for purposes beyond their scope, al-though desegregation of schools ultimately will haveimpact on other forms of discrimination. We do notreach in this case the question whether a showing thatschool segregation is a consequence of other types ofstate action, without any discriminatory action by theschool authorities, is a constitutional violation requiring

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SWANN v. BOARD OF EDUCATION 19

remedial action by a school desegregation decree. Thiscase does not present that question and we therefore donot decide it.

Our objective in dealing with the issues presented bythese cases is to see that school authorities exclude nopupil of a racial minority from any school, directly orindirectly, on account of race; it does not and cannotembrace all the problems of racial prejudice, even whenthose problems contribute to disproportionate racial con-centrations in some schools.

In this case it is urged that the District Court hasimposed a racial balance requirement of 71%-29% onindividuy! schools. The fact that no such objective wasactually achievedand would appear to be impossibletends to blunt that claim, yet in the opinion and orderof the District Court of December 1, 1969, we find thatcourt directing:

"that efforts should be made to reach a 71-29 ratioin the various schools so that there will be no basisfor contending that one school is racially differentfrom the others . . . , that no school [should] beoperated with an all-black or predominantly blackstudent body, [and] that pupils of all grades[should] be assigned in such a way that as nearlyas practicable the various schools at various gradelevels have about the same proportion of black andwhite students."

The District Judge went on to acknowledge that varia-tion "from that norm may be unavoidable." This con-tains intimations that the "norm" is a fixed mathematicalracial balance reflecting the pupil constituency of thesystem. If we were to read the holding of the DistrictCourt to require, as a matter of substantive constitu-

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20 SWANN v. BOARD OF EDUCATION

tional right, any particular degree of racial balance ormixing, that approach would be disapproved and wewould be obliged to reverse. The constitutional com-mand to desegregate schools does not mean that everyschool in.every community must always reflect the racialcomposition of the school system as a whole.

As the voluminous record in this case shows,' thepredicate for the District Court's use of the 71 % -29%ratio was twofold: first, its express finding, approved bythe Court of Appeals and not challenged here, that adual school system had been maintained by the schoolauthorities at least until 1969; second, its finding, alsoapproved by the Court of Appeals, that the school boardhad totally defaulted ii. its acknowledged duty to comeforward with an acceptable plan of its own, notwith-standing the patient efforts of the District Judge who, onat least three occasions, urged the board to submit plans.'As the statement of facts shows, these findings are abun-dantly supported by the record. It was because of thistotal failure of the school board that the District Courtwas obliged to turn to other qualified. sources, and Dr.

7 It must be remembered that the District Court entered nearlya score of orders, numerous sets of findings and for the most parteach was accompanied by a memorandum opinion. Consideringthe pressure under which the court was obliged to operate wewould not expect that all inconsistencies and apparent inconsistenciescould be avoided. Our review, of course, is on the orders of Febru-ary 5, 1970, as amended, and August 7, 1970.

a The final board plan left 10 schools 86% to 100% Negro andyet categorically rejected the techniques of pairing and clusteringas part of the desegregation effort. As discussed below, the Char-lotte board was under an obligation to exercise every reasonableeffort to remedy the violation, once it was identified, and thesuggested techniques are permissible remedial devices. Additionally,as noted by the District Court and Court of Appeals, the board planrefused to assign white students to any school un1,7 the studentpopulation of that qchool was at least 60% white. This was anarbitrary limitation negating reasonable remedial steps.

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Finger was designated to assist the District Court to dowhat the board should have done.

We see therefore that the use made of mathematicalratios was no more than a starting point in the processof shaping a remedy, rather than an inflexible require-ment. From that starting point the District Court pro-ceeded to frame a decree that was within its discretionarypowers, an equitable remedy for the particular circum-stances.9 As we said in Green, a school authority'sremedial plan or a district court's remedial decree is tobe judged by its effectiveness. Awareness of the racialcomposition of the whole school system is likely to be aUseful starting point in shaping a remedy to correct pastconstitutional violations. In sum, the very limited usemade of mathematical ratios was within the equitableremedial discretion of the District Court.

(2) One-Race Schools.The record in this case reveals the familiar phenome-

non that in metropolitan areas minority groups are oftenfound concentrated in one part of the city. In somecircumstances certain schools may remain all or largelyof one race until new schools can be provided or neigh-borhood patterns change. Schools all or predominatelyof one race in a district of mixed population will requireclose scrutiny to determine that school assignments arenot part of state-enforced segregation.

'In his August 3, 1970,, memorandum holding that the DistrictCourt plan was "reasonable" under the standard laid down by theFourth Circuit on appeal, the District Court explained the approachtaken as follows:

"This court has not ruled, and does not rule that 'racial balance'is required under the Constitution; nor that all black schools in allcities are unlawful; nor that all school boards must bus children orviolate the Constitution; nor that the particular order entered inthis case would be correct in other circumstances not before thiscourt." (Emphasis in original.)

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22 SWANN v. BOARD OF EDUCATION

In light of the above, it should be clear that theexistence of some small number of one-race, or virtuallyone-race, schools within a district is not in and of itselfthe mark of a system which still practices segregationby law. The district judge or school authorities shouldmake every effort to achieve the greatest possible degreeof actual desegregation and will thus necessarily be con-cerned with the elimination of one-race schools. Noper se rule can adequately embrace all the difficultiesof reconciling the competing interests involved; but ina system with a history of segregation the need for re-medial criteria of sufficient specificity to assure a schoolauthority's compliance with its constitutional duty war-rants a presumption against schools that are substan-tially disproportionate in their racial composition. Wherethe school authority's proposed plan for conversion froma dual to a unitary system contemplates the continuedexistence of some schools that are all or predominatelyof one race, they have the burden of showing that suchschool assignments are genuinely nondiscriminatory.The court should scrutinize such schools, and the burdenupon the school authorities will be to satisfy the courtthat their racial composition is not the result of presentor past discriminatory action on their part.

An optional majority-to-minority transfer. provisionhas long been recognized as a useful part of every desegre-gation plan. Provision for optional transfer of those inthe majority racial group of a particular school to otherschools where they will be in the minority is an indis-pensable remedy for those students willing to transferto other schools in order to lessen the impact on themof the state-imposed stigma of segregation. In orderto be effective, such a transfer arrangement must grantthe transferring student free transportation and spacemust be made available in the school to which he desiresto move. Cf. Ellis v. Board of Public Instruction, 423

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SWANN v. BOARD OF EDUCATION 23

F. 2d 203, 206 (CA5 1970). The court orders in thisand the companion Davis case now provide such anoption.

(3) Remedial Altering of Attendance Zones.The maps submitted in these cases graphically demon-

strate that one of the principal tools employed by schoolplanners and by courts to break up the dual school sys-tem has been a frankand sometimes drasticgerry-mandering of school districts and attendance zones. Anadditional step was pairing, "clustering," or "grouping"of schools with attendance assignments made deliberatelyto accomplish the transfer of Negro students out offormerly segregated Negro schools and transfer of whitestudents to formerly all-Negro schools. More often thannot, these zones are neither compact '° nor contiguous;indeed they may be on opposite ends of the city. Asan interim corrective measure, this cannot be said to bebeyond the brc,.. ' remedial powers of a court.

Absent a constitutional violation there would be nobasis for judicially ordering assignment of students on aracial basis. All things being equal, with no history ofdiscrimination, it might well be desirable to assign pupils

2° The reliance of school authorities on the reference to the "revi-sion of . . . attendance areas into compact units," Brown II, at 300,is misplaced. The enumeration in that opinion of considerations tobe taken into account by district courts was patently intended to hesuggesive rather than exhaustive. The decision in Brown II toremand the cases decided in Brown I to local courts for the framingof specific decrees was premised on a recognition that this Courtcould not at that time foresee the particular means which wouldbe required to implement the constitutional principles announced.We said in Green, supra, at 439:

"The obligation of the district courts, as it always has been, isto assess the effectiveness of a proposed plan in achieving desegrega-tion. There is no universal answer to complex problems of desegre-gation; there is obviously no one plan that will do the job in everycase. The matter must be assessed in light of the circumstancespresent and the options available in each instance."

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24 SWANN v. BOARD OF EDUCATION

to schools nearest their homes. But all things are notequal in a system that has been deliberately constructedand maintained to enforce racial segregation. The rem-edy for such segregation may be administratively awk-ward, inconvenient and even bizarre in some situationsand may impose burdens on some; but all awkwardnessand inconvenience cannot be avoided in the interimperiod when remedial adjustments are being made toeliminate the dual school systems.

No fixed or even substantially fixed guidelines can beestablished as to how far a court can go, but it must berecognized that there are limits. The objective is todismantle the dual school system. "Racially neutral"assignment plans proposed by school authorities to adistrict court may be inadequate; such plans may fail tocounteract the continuing effects of past school segre-gation resulting from discriminatory location of schoolsites or distortion of school size in order to achieve ormaintain an artificial racial separation. When schoolauthorities present a district court with a "loaded gameboard," affirmative action in the form of remedial alter-ing of attendance zones is proper to achieve truly non-discriminatory assignments. In short, an assignmentplan is not acceptable simply because it appears to beneutral.

In this area, we must of necessity rely to a large extent,as this Court has for more than 16 years, on the informedjudgment of the district courts in the first instance andon courts of appeals.

We hold that the pairing and grouping of non-contigu-ous school zones is a permissible tool and such action isto be considered in light of the objectives sought. Ju-dicial steps in shaping such zones going beyond combi-nations of contiguous areas should be examined in lightof what is said in subdivisions (1), (2), and (3) of this

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opinion concerning the objectives to be sought. Mapsdo not tell the whole story since non-contiguous schoolzones may be more accessible to each other in termsof the critical travel time, because of traffic patterns andgood highways, than schools geographically closer to-gether. Conditions in different localities will vary sowidely that no rigid rules can be laid down to governall situations.

(4) Transportation of Students.The scope of permissible transportation of students as

an implement of a remedial decree has never been definedby this Court arid by the very nature of the problem itcannot be defined with precision. No rigid guidelines asto student transportation can be given for application tothe infinite variety of problems presented in thousandsof situations. Bus transportation has been an integralpart of the public education system for years, and wasperhaps the single most important factor in `he transi-tion from the one-room schoolhouse to the consolidatedschool. Eighteen million of the nation's public schoolchildren, approximately 39%, were transported to theirschools by bus in 1969-1970 in all parts of the country.

The importance of bus transportation as a normal andaccepted tool of educational policy is readily discerniblein this and the companion case." The Charlotte schoolauthorities did not purport to assign students on the basisof geographically drawn zones until 1965 and then they

ii During 1967-1968, for example, the Mobile board used 207buses to transport 22,094 students daily for an average round tripof 31 miles. During 1966-1967, 7,116 students in the metropolitanarea were bussed daily. In Charlotte-Mecklenburg, the system asa whole, without regard to desegregation plans, planned to busapproximately 23,000 students this year, for an average daily roundtrip of 15 miles. More elementary school children than high schoolchildren were to be bussed, and four- and five-year-olds travel thelongest routes in the system.

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26 SWANN v. BOARD OF EDUCATION

allowed almost unlimited transfer privileges. The Dis-trict Court's conclusion that assignment of children tothe school nearest their home serving their grade wouldnot produce an effective dismantling of the dual systemis supported by the record.

Thus the remedial techniques used in the DistrictCourt's order were within that court's power to provideequitable relief; implementation of the decree is wellwithin the capacity of the school authority.

The decree provided thst the buses used to implementthe plan would operate on direct routes. Students wouldbe picked up at schools near their homes and transportedto the schools they were to attend. The trips for ele-mentary school pupils average about seven miles andthe District Court found that they would take "not over35 minutes at the most." 12 This system compares favor-ably with the transportation plan previously operatedin Charlotte under which each day 23,600 students on allgrade levels were transported an average of 15 miles oneway for an average trip requiring over an hour. In thesecircumstances, we find no basis for holding that the local

hool authorites may not be required to employ bustransportation as one tool of school desegregation. De-segregation plans cannot be limited to the walk-in school.

An objection to transportation of students may havevalidity when the time or distance of travel is so greatas to risk either the health of the children or significantlyimpinge on the educational process. District courts mustweigh the soundness of any transportation plan in light

12 The District Court round that the school system would haveto employ 138 more buses than it had previously operated. But105 of those buses were already available and the others couldeasily be obtained. Additionally, it should be noted that NorthCarolina requires provision of transportation for all students whoare assigned to schools more than one and one-half miles from theirhomes. N. C. Stat. § 115-186 (b).

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of what is said in subdivisions (1), (2), and (3) above.It hardly needs stating that the limits on time of travelwill vary with many factors, but probably with nonemore than the age of the students. The reconcilation ofcompeting values in a desegregation case is, of course, adifficult task with many sensitive facets but fundamen-tally no more so than remedial measures courts of equityhave traditionally employed.

VIThe Court of Appeals, searching for,a term to define

the equitable remedial power of the district courts, usedthe term "reasonableness." In Green, supra, this Courtused the term "feasible" and by implication, "workable,""effective," and "realistic" in the mandate to develop "aplan that promises realistically to work, and . . . to worknow." On the facts of this case, we are unable to con-clude that the order of the District Court is not reason-able, feasible and workable. However, in seeking todefine the scope of remedial power or the limits onremedial power of courts in an area as sensitive as wedeal with here, words are poor instruments to convey thesense of basic fairness inherent in equity. Substance,not semantics, must govern, and we have sought tosuggest the nature of limitations without frustrating theappropriate scope of equity.

At some point, these school authorites and others likethem should have achieved full compliance with thisCourt's decision in Brown I. The systems will then be"unitary" in the sense required by our decisions in Greenand Alexander.

It does not follow that the communities served bysuch systems will remain demographically stable, forin a growing, mobile society, few will do so. Neitherschool authorities nor district courts are constitution-ally required to make year-by-year adjustments of the

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28 SWANN v. BOARD OF EDUCATION

racial composition of student bodies once the affirmativeduty to desegregate has been accomplished and racialdiscrimination through official action is eliminated fromthe system. This does not mean that federal courtsare without power to deal with future problems; butin the absence of a showing that either the school au-thorities or some other agency of the State has delib-erately attempted to fix or alter demographic patternsto affect the racial composition of the schools, furtherintervention by a district court should not be necessary.

For the reasons herein set forth, the judgment of theCourt of Appeals is affirmed as to those parts in which itaffirmed the judgment of the District Court. The orderof the District Court dated August 7, 1970, is alsoaffirmed.

It is so ordered.

c

173

NOTE: Where it is deemed desirable, a syllabus (headnote) 1011be released, as is being done In connection with this vase. at the timethe opinion Is Issued. The syllabus constitutes no part of the opinionof the Court but has been prepared by the Reporter of Decisions forthe rnnrenlence of the reader. See United States T. Detroit LumberCo., 200 U.S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

NORTH CAROLINA STATE BOARD OF EDUCA-TION ET AL. V. SWANN ET AL.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THEWESTERN DISTRICT OF NORTH CAROLINA

No. 49S. Argued October 13, 1970Decided April 20, 1971

North Carolina's Anti-Busing Law, which flatly forbids assignmentof any student on account of race or for the purpose of creatinga racial balance or ratio in the schools and which prohibits busingfor such purposes, !aid invalid as preventing implementation ofdesegregation plans required by the Fourteenth Amendment.Pp. 2-4.

312 F. Supt,. 503, affirmed.

BURGER, C. J., delivered the opinion for a unanimous Court.

71.526 0 - 72 . 12

174

NOTICE: This opinion is subject to formal revision before publicationin the preliminary print of the United States Reports. Readers are re.quested to notify the Reporter of Decisions, Supreme Court of theUnited States, Washington, in. 20543, of any typogvaphical or otherformal errors, in order that corrections may be made before the pre-liminary print goes to press.

SUPREME COURT OF THE -UNITED STATE

No. 498.OCTOBER TERM, 1970

North Carolina State Boardof Education et al.,

Appellants,V.

James E. Swann et al.

On Appeal from the UnitedStates District Court forthe Western District ofNorth Carolina.

[April 20, 1971]

MR. CHIEF JUSTICE BURGER delivered the opinion ofthe Court.

This case is here on direct appeal pursuant to 28U. S. C. § 1253 from the judgment of a three-judge courtin the United States District Court for the Western Dis-trict of North Carolina. The District Court declared un-constitutional a portion of the North Carolina GeneralStatutes known as the Anti-Busing Law,' and granted aninjunction against its enforcement? The proceeding be-fore the three-judge court was an ancillary proceedingconnected with the school desegregation case heretoforediscussed, Swann v. Charlotte-Mecklenburg, supra, p.

1So far as here relevant, North Carolina Genera! Statute § 115 -176.1 reads as follows:'"No student shall be assigned or compelled to attend any schoolon account of race, creed, color or national origin, or for the purposeof creating a balance or ratio of race, religion or national origins.Involuntary bussing of students in contravention of this article isprohibited, and public funds shall not be used for any such bussing."

312 F. Supp 503 (1970). The opinion as printed grants onlydeclaratory relief. However the Disirict Court amended its originalopinion by withdrawing Part V and entering an order dated 'June 22,1970, which enjoined all parties "from enforcing, or seeking theenforcement of," the portion of the statute found unconstitutional.

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2 BOARD OF EDUCATION v. SIVANN

The instant appeal was taken by the North CarolinaState Board of Education and four state officials. Wegranted the Charlotte-Mecklenburg School Board's mo-tion to join in the appeal, 400 U. S. 804 (1970).

When the litigation in the Swann case recommenced inthe spring of 1969, the District Court specifically directedthat the school bo..id consider altering attendance areas,pairing or consolidation of schools, bus transportation ofstudents, and any other method which would effectuatea racially unitary system. That litigation was activelyprosecuted. The board submitted a series of proposals,all rejected by the District Court as inadequate. In themidst of this litigation over the remedy to implement theDistrict Court's order, the North Carolina Legislatureenacted the anti-busing bill, set forth in relevant part infootnote 1.

Following enactment of the anti-busing statute theplaintiffs in .the Swcirtn case obtained leave to file a sup-plemental complaint which sought injunctive and de-claratory relief against the statute. They sought to con-vene a three-judge court, but no action was taken onthe requests at that time because the school boardthought that the anti-busing law did not interfere withthe school board's proposed plan to transport about 4,000Negro children to white suburban schools. 306 F. Supp1291 (WDNC 1969). Other parties were added as de-fendants by order of the District Court dated Febru-ary 25. In addition certain persons who had brought asuit in state court to enjoin or impede the order of thefederal court, the attorneys for those-litigants, and statejudges who at various times entered injunctions againstthe school authorities and blocked compliance with ordersof the District Court were also joined; a three-judge courtwas then convened.

We observed in Swann, ante, p. 12, that school author-ities have wide discretion in formulating school policy,

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BOARD OF EDUCATION v. SWANN 3

and that as a matter of educational policy school author-ities may well conclude that some kind of racial balancein the schools is desirable quite apart from any constitu-tional requirements. However, if a state-imposed limita-tion on a school authority's discretion operates to inhibitor obstruct the operation of a unitary school system orimpede the disestablishing of a dual school system, itmust fall; state policy must give way when it operatesto hinder vindication of federal constitutional guarantees.

The legislation before us flatly forbids assignment ofany student on account of race or for the purpose ofcreating a racial balance or ratio in the schools. Theprohibition is absolute, and it would inescapably operateto obstruct the remedies granted by the District Courtin the Swann case. But more important the statute ex-ploits an apparently neutral form to control school as-signment plans by directing that they be "color blind";that requirement, against the background of segregation,would render illusory the promise of Brown v. Board ofEducation, 347 U. S. 483 (1954). Just as the race ofstudents must be considered in determining whether aconstitutional violation has occurred, so also must racebe considered in formulating a remedy. I forbid, atthis stage, all assignments made on the basis of racewould deprive school authorities of the one tool abso-lutely essential to fulfillment of their constitutional obli-gation to eliminate existing dual school systems.

Similarly the flat prohibition against assignment ofstudents for the purpose of creating a racial balancemust inevitably conflict with the duty of school author-ities to disestablish dual school systems. As we haveheld in Swann, the Constitution does net compel anyparticular degree of racial balance or mixing, but whenpast and-pntinuing constitutional violations are found,some ratios are likely to be useful starting points inshaping a remedy. An absolute prohibition against use

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of such a deviceeven as a starting pointcontravenesthe implicit command of Green v. County School Board,391 U. S. 430 (1968), that all reasonable methods beavailable to formulate an effective remedy.

We likewise conclude that an absolute prohibitionagainst transportation of students assigned on the basisof race, "or for the purpose of creating a balance orratio," will similarly hamper the ability of local author-ities to effectively remedy constitutional violations. Asnoted in Swann, ante, p. 25, bus transportation has longbeen an integral part of all public educational systems,and it is unlikely that a truly effective remedy could bedevised without continued reliance upon it. Cf. Mc-Daniel v. Barresi, post, p. 3.

The remainder of the order of the District Court isaffirmed for the reasons stated in its opinion, 312 F. Supp.503.

Affirmed.

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