Green v. County School Board of New Kent County

No. 695

Argued April 3, 1968

Decided May 27, 1968

391 U.S. 430

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Syllabus



Respondent School Board maintains two schools, one on the east side and

one on the west side of New Kent County, Virginia.  About one-half of

the county's population are Negroes, who reside throughout the county

since there is no residential segregation.  Although this Court held in

Brown v. Board of Education, 347 U.S. 483 (Brown I), that Virginia's

constitutional and statutory provisions requiring racial segregation in

schools were unconstitutional, the Board continued segregated operation

of the schools, presumably pursuant to Virginia statutes enacted to

resist that decision.  In 1965, after this suit for injunctive relief

against maintenance of allegedly segregated schools was filed, the

Board, in order to remain eligible for federal financial aid, adopted a

"freedom of choice" plan for desegregating the schools.  The plan

permits students, except those entering the first and eighth grades, to

choose annually between the schools; those not choosing are assigned to

the school previously attended; first and eighth graders must

affirmatively choose a school.  The District Court approved the plan, as

amended, and the Court of Appeals approved the "freedom of choice"

provisions, although it remanded for a more specific and comprehensive

order concerning teachers.  During the plan's three years of operation,

no white student has chosen to attend the all-Negro school, and although

115 Negro pupils enrolled in the formerly all-white school, 85% of the

Negro students in the system still attend the all-Negro school.



Held:



1. In 1955, this Court, in Brown v. Board of Education, 349 U.S. 294

(Brown II), ordered school boards operating dual school systems, part

"white" and part "Negro," to "effectuate a transition to a racially

nondiscriminatory school system," and it is in light of that command

that the effectiveness of the "freedom of choice" plan to achieve that

end is to be measured.  Pp. 435-438.



2. The burden is on a school board to provide a plan that promises

realistically to work now, and a plan that, at this late date fails to

provide meaningful assurance of prompt and effective disestablishment of

a dual system is intolerable.  Pp. 438-439. [391 U.S. 431]



3. A district Court's obligation is to assess the effectiveness of the

plan in light of the facts at hand and any alternatives which may be

feasible and more promising, and to retain jurisdiction until it is

clear that state-imposed segregation has been completely removed.  P.

439.



4. Where a "freedom of choice" plan offers real promise of achieving a

unitary, nonracial system, there might be no objection to allowing it to

prove itself in operation, but where there are reasonably available

other ways, such as zoning, promising speedier and more effective

conversion to a unitary school system, "freedom of choice" is not

acceptable.  Pp. 439-441.



5. The New Kent "freedom of choice" plan is not acceptable; it has not

dismantled the dual system, but has operated simply to burden students

and their parents with a responsibility which Brown II placed squarely

on the School Board.  Pp. 441-442.



382 F.2d 338, vacated in part and remanded. BRENNAN, J., lead opinion



MR. JUSTICE BRENNAN delivered the opinion of the Court.



The question for decision is whether, under all the circumstances here,

respondent School Board's adoption of a "freedom of choice" plan which

allows a pupil to choose [391 U.S. 432] his own public school

constitutes adequate compliance with the Board's responsibility "to

achieve a system of determining admission to the public schools on a

nonracial basis. . . ."  Brown v. Board of Education, 349 U.S. 294,

300-301 (Brown II).



Petitioners brought this action in March, 1965, seeking injunctive

relief against respondent's continued maintenance 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 are Negroes. 

There is no residential segregation in the county; persons of both races

reside throughout.  The school system has only two schools, the New Kent

school on the east side of the county and the George W. Watkins school

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 Negro and 550 are White.  The School Board operates one

white combined elementary and high school [New Kent], and one Negro

combined elementary and high school [George W. Watkins].  There are no

attendance zones.  Each school serves the entire County. The record

indicates that 21 school buses -- 11 serving the Watkins school and 10

serving the New Kent school -- travel overlapping routes throughout the

county to transport pupils to and from the two schools.



The segregated system was initially established and maintained under the

compulsion of Virginia constitutional and statutory provisions mandating

racial segregation in public education, Va.Const., Art. IX,  140 (1902);

Va.Code  22-221 (1950).  These provisions were held to violate the

Federal Constitution in Davis v. County School Board of Prince Edward

County, decided with Brown v. Board of Education, 347 U.S. 483,

487 (Brown I).  The respondent School Board continued the segregated

operation of the system after the Brown [391 U.S. 433] decisions,

presumably on the authority of several statutes enacted by Virginia in

resistance to those decisions.  Some of these statutes were held to be

unconstitutional on their face or as applied.{1}  One statute, the

Pupil Placement Act, Va.Code  22-232.1 et seq. (1964), not repealed

until 1966, divested local boards of authority to assign children to

particular schools and placed that authority in a State Pupil Placement

Board.  Under that Act, children were each year automatically reassigned

to the school previously attended unless, upon their application, the

State Board assigned them to another school; students seeking enrollment

for the first time were also assigned at the discretion of the State

Board.  To September 1964, no Negro pupil had applied for admission to

the New Kent school under this statute and no white pupil had applied

for admission to the Watkins school.



The School Board initially sought dismissal of this suit on the ground

that petitioners had failed to apply to the State Board for assignment

to New Kent school.  However, on August 2, 1965, five months after the

suit was brought, respondent School Board, in order to remain eligible

for federal financial aid, adopted a "freedom of choice" plan for

desegregating the schools.{2}  Under that [391 U.S. 434] plan, each

pupil, except those entering the first and eighth grades, may annually

choose between the New Kent and Watkins schools and pupils not making a

choice are assigned to the school previously attended; first and eighth

grade pupils must affirmatively choose a school.  After the plan was

filed the District Court denied petitioners' prayer for an injunction

and granted respondent leave to submit an amendment to the plan with

respect to employment and assignment of teachers and staff on a racially

nondiscriminatory basis.  The amendment was duly filed and on June 2,

1966, the District Court approved the "freedom of choice" plan as so

amended. The Court of Appeals for the Fourth Circuit, en banc, 382 F.2d

338,{3} affirmed the District Court's approval of the "freedom of

choice" provisions of the plan but remanded the case to the District

Court for entry of an order regarding faculty [391 U.S. 435] "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 the decree entered by the Court of Appeals for the Fifth

Circuit in United States v. Jefferson County Board of Education, 372

F.2d 836, aff'd en banc, 380 F.2d 385 (1967).  Judges Sobeloff and

Winter concurred with the remand on the teacher issue but otherwise

disagreed, expressing the view that the District Court should be

directed . . . also to set up procedures for periodically evaluating the

effectiveness of the [Board's] "freedom of choice" [plan] in the

elimination of other features of a segregated school system. Bowman v.

County School Board of Charles City County, 382 F.2d 326, at 330.  We

granted certiorari, 389 U.S. 1003.



The pattern of separate "white" and "Negro" schools in the New Kent

County school system established under compulsion of state laws is

precisely the pattern of segregation to which Brown I and Brown II were

particularly addressed, and which Brown I declared unconstitutionally

denied Negro school children equal protection of the laws.  Racial

identification of the system's schools was complete, extending not just

to the composition of student bodies at the two schools, but to every

facet of school operations -- faculty, staff, transportation,

extracurricular activities and facilities.  In short, the State, acting

through the local school board and school officials, organized and

operated a dual system, part "white" and part "Negro."



It was such dual systems that, 14 years ago, Brown I held

unconstitutional, and, a year later, Brown II held must be abolished;

school boards operating such school systems were required by Brown II

"to effectuate a transition to a racially nondiscriminatory school

system."  349 U.S. at 301.  It is, of course, true that, for the time

immediately after Brown II, the concern was with making an initial break

in a long-established pattern of excluding [391 U.S. 436] Negro children

from schools attended by white children.  The principal focus was on

obtaining for those Negro children courageous enough to break with

tradition a place in the "white" schools.  See, e.g., Cooper v.

Aaron, 358 U.S. 1.  Under Brown II, that immediate goal was only the

first step, however.  The transition to a unitary, nonracial system of

public education was and is the ultimate end to be brought about; it was

because of the "complexities arising from the transition to a system of

public education freed of racial discrimination" that we provided for

"all deliberate speed" in the implementation of the principles of Brown

I.  349 U.S. at 299-301.  Thus, we recognized the task would

necessarily involve solution of "varied local school problems."  Id. at

299.  In referring to the "personal interest of the plaintiffs in

admission to public schools as soon as practicable on a

nondiscriminatory basis," we also noted that "[t]o effectuate this

interest may call for elimination of a variety of obstacles in making

the transition. . . ."  Id. at 300.  Yet we emphasized that the

constitutional rights of Negro children required school officials to

bear the burden of establishing that additional time to carry out the

ruling in an effective manner "is necessary in the public interest and

is consistent with good faith compliance at the earliest practicable

date."  Ibid.  We charged the district courts, in their review of

particular situations, to consider problems related to administration

arising from the physical condition of the school plant, the school

transportation system, personnel, revision of school districts and

attendance areas into compact units to achieve a system of determining

admission to the public schools on a nonracial basis, and revision of

local laws and regulations which may be necessary in solving the

foregoing problems.  They will also consider the adequacy of any plans

the [391 U.S. 437] defendants may propose to meet these problems and to

effectuate a transition to a racially nondiscriminatory school system.

Id. at 300-301.



It is against this background that 13 years after Brown II commanded the

abolition of dual systems we must measure the effectiveness of

respondent School Board's "freedom of choice" plan to achieve that end. 

The School Board contends that it has fully discharged its obligation by

adopting a plan by which every student, regardless of race, may "freely"

choose the school he will attend.  The Board attempts to cast the issue

in its broadest form by arguing that its "freedom of choice" plan may be

faulted only by reading the Fourteenth Amendment as universally

requiring "compulsory integration," a reading it insists the wording of

the Amendment will not support.  But that argument ignores the thrust of

Brown II.  In the light of the command of that case, what is involved

here is the question whether the Board has achieved the "racially

nondiscriminatory school system" Brown II held must be effectuated in

order to remedy the established unconstitutional deficiencies of its

segregated system.  In the context of the state-imposed segregated

pattern of long standing, the fact that, 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, our inquiry whether

the Board has taken steps adequate to abolish its dual, segregated

system.  Brown II was a call for the dismantling of well entrenched dual

systems tempered by an awareness that complex and multifaceted problems

would arise which would require time and flexibility for a successful

resolution.  School boards such as the respondent then operating

state-compelled dual systems were nevertheless clearly charged with the

affirmative duty to take whatever steps might be necessary to [391 U.S.

438] convert to a unitary system in which racial discrimination would be

eliminated root and branch.  See Cooper v. Aaron, supra, at 7;

Bradley v. School Board, 382 U.S. 103; cf. Watson v. City of Memphis,

373 U.S. 526.  The constitutional rights of Negro school children

articulated in Brown I permit no less than this, and it was to this end

that Brown II commanded school boards to bend their efforts.{4}



In determining whether respondent School Board met that command by

adopting its "freedom of choice" plan, it is relevant that this first

step did not come until some 11 years after Brown I was decided and 10

years after Brown II directed the making of a "prompt and reasonable

start."  This deliberate perpetuation of the unconstitutional dual

system can only have compounded the harm of such a system.  Such delays

are no longer tolerable, for "the governing constitutional principles no

longer 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

provide meaningful assurance of prompt and effective disestablishment of

a dual system is also intolerable.  "The time for mere `deliberate

speed' has run out," Griffin v. County School Board, 377 U.S. 218,

234; "the context in which we must interpret and apply this language

[of Brown II] to plans for desegregation has been significantly

altered."  [391 U.S. 439] Goss v. Board of Education, 373 U.S. 683, 689.

 See Calhoun v. Latimer, 377 U.S. 263.  The burden on a school board

today is to come forward with a plan that promises realistically to

work, and promises realistically to work now.



The obligation of the district courts, as it always has been, is to

assess the effectiveness of a proposed plan in achieving desegregation. 

There is no universal answer to complex problems of desegregation; there

is obviously no one plan that will do the job in every case.  The matter

must be assessed in light of the circumstances present and the options

available in each instance.  It is incumbent upon the school board to

establish that its proposed plan promises meaningful and immediate

progress toward disestablishing state-imposed segregation.  It is

incumbent upon the district court to weigh that claim in light of the

facts at hand and in light of any alternatives which may be shown as

feasible and more promising in their effectiveness.  Where the court

finds the board to be acting in good faith and the proposed plan 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 course, the availability to the board of other

more promising courses of action may indicate a lack of good faith, and,

at the least, it places a heavy burden upon the board to explain its

preference for an apparently less effective method.  Moreover, whatever

plan is adopted will require evaluation in practice, and the court

should retain jurisdiction until it is clear that state-imposed

segregation has been completely removed.  See No. 805, Raney v. Board of

Education, post at 449.



We do not hold that "freedom of choice" can have no place in such a

plan.  We do not hold that a "freedom of choice" plan might of itself be

unconstitutional, although that argument has been urged upon us. 

Rather, [391 U.S. 440] all we decide today is that, in desegregating a

dual system, a 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 required end -- the abolition of the system of

segregation and its effects.  If the means prove effective, it is

acceptable, but if it fails to undo segregation, other means must be

used to achieve this end.  The school officials have the continuing duty

to take whatever action may be necessary to create a "unitary, nonracial

system." Bowman v. County School Board, 382 F.2d 326, 333 (C.A.4th

Cir.1967) (concurring opinion).  Accord, Kemp v. Beasley, 389 F.2d 178

(C.A. 8th Cir.1968); United Slates v. Jefferson County Board of

Education, supra.  Although the general experience under "freedom of

choice" to date has been such as to indicate its ineffectiveness as a

tool of desegregation,{5} there may well be instances in which it can

serve as an effective device.  Where it offers real promise of aiding a

desegregation [391 U.S. 441] program to effectuate conversion of a

state-imposed dual system to a unitary, nonracial system there might be

no objection to allowing such a device to prove itself in operation.  On

the other hand, if there are reasonably available other ways, such for

illustration as zoning, promising speedier and more effective conversion

to a 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 "effectuate a transition" to a unitary system. 

In three years of operation, not a single white child has chosen to

attend Watkins school, and, although 115 Negro children enrolled in New

Kent school in 1967 (up from 35 in 1965 and 111 in 1966) 85% of the

Negro children in the system still attend the all-Negro Watkins school. 

In other words, the school system remains a dual system.  Rather than

further the dismantling of the dual system, the plan has operated simply

to burden children and their parents [391 U.S. 442] with a

responsibility which Brown II placed squarely on the School Board.  The

Board must be required to formulate a new plan and, in light of other

courses which appear open to the Board, such as zoning,{6} fashion

steps which promise realistically to convert promptly to a system

without a "white" school and a "Negro" school, but just schools.



The judgment of the Court of Appeals is vacated insofar as it affirmed

the District Court, and the case is remanded to the District Court for

further proceedings consistent with this opinion.



It is so ordered. Footnotes BRENNAN, J., lead opinion (Footnotes)



1. 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.2d 118

(C.A.4th Cir.1962); Adkins v. School Board of City of Newport News, 148

F.Supp. 430 (D.C.E.D.Va.), aff'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).



2. Congress, concerned with the lack of progress in school

desegregation, included provisions in the Civil Rights Act of 1964 to

deal with the problem through various agencies of the Federal

Government.  78 Stat. 246, 252, 266, 42 U.S.C.  2000c et seq., 2000d et

seq., 2000h-2.  In Title 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 denied the

benefits of, or be subjected to discrimination under any program or

activity receiving Federal financial assistance. 42 U.S.C.  2000d.  The

Department of Health, Education, and Welfare issued regulations 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 established standards according to

which school systems in the process of desegregation can remain

qualified for federal funds.  45 CFR  80.180.13, 181.1-181.76 (1967). 

"Freedom of choice" plans are among those considered acceptable, so long

as in operation such a plan proves effective.  45 CFR  181.54.  The

regulations provide that a school system "subject to a final order of a

court of the United States for the desegregation of such school . . .

system" with which the system agrees to comply is deemed to be in

compliance with the statute and regulations.  45 CFR  80.4(c).  See also

45 CFR  181.6.  See generally Dunn, Title VI, the Guidelines and School

Desegregation in the South, 53 Va.L.Rev. 42 (1967); Note, 55 Geo.L.J.

325 (1966); Comment, 77 Yale L.J. 321 (1967).



3. This case was decided per curiam on the basis of the opinion in

Bowman v. County School Board of Charles City County, 382 F.2d 326,

decided the same day.  Certiorari has not been sought for the Bowman

case itself.



4. We bear in mind that the court has not merely the power, but the

duty, to render a decree which will, so far as possible, eliminate the

discriminatory effects of the past, as well as bar like discrimination

in the future. Louisiana v. United States, 380 U.S. 145, 154.  Compare

the remedies discussed in, e.g., NLRB v. Newport News Shipbuilding & Dry

Dock Co., 308 U.S. 241; United States v. Crescent Amusement Co., 323

U.S. 173; Standard Oil Co. v. United States, 221 U.S. 1.  See also

Griffin v. County School Board, 377 U.S. 218, 232-234.



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 racially

identifiable schools in the Southern and border States, require

affirmative action by both Negro and white parents and pupils before

such disestablishment can be achieved.  There are a number of factors

which have prevented such affirmative action by substantial numbers of

parents and pupils of both races:



(a) Fear of retaliation and hostility from the white community continue

to deter many Negro families from choosing formerly all-white schools;



(b) During the past school year [1966-1967], as in the previous year, in

some areas of the South, Negro families with children attending

previously all-white schools under free choice plans were targets of

violence, threats of violence and economic reprisal by white persons and

Negro children were subjected to harassment by white classmates

notwithstanding conscientious efforts by many teachers and principals to

prevent such misconduct;



(c) During the past school year, in some areas of the South public

officials improperly influenced Negro families to keep their children in

Negro schools and excluded Negro children attending formerly all-white

schools from official functions;



(d) Poverty deters many Negro families in the South from choosing

formerly all-white schools.  Some Negro parents are embarrassed to

permit their children to attend such schools without suitable clothing. 

In some districts, special fees are assessed for courses which are

available only in the white schools;



(e) Improvements in facilities and equipment . . . have been instituted

in all-Negro schools in some school districts in a manner that 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 and Border States 1965-1966, at

30-44, 51-52 (U.S. Comm'n on Civil Rights 1966).



6. In view of the situation found in New Kent County, where there is no

residential segregation, the elimination of the dual school system and

the establishment of a "unitary, nonracial system" could be readily

achieved with a minimum of administrative difficulty by means of

geographic zoning -- simply by assigning students living in the eastern

half of the county to the New Kent School and those living in the

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

geographical formula is not universally appropriate, it is evident that,

here, the Board, by separately busing Negro children across the entire

county to the "Negro" school, and the white children to the "white"

school, is deliberately maintaining a segregated system which would

vanish with nonracial geographic zoning.  The conditions in this county

present a classical case for this expedient. Bowman v. County School

Board, supra, n. 3, at 332 (concurring opinion).  Petitioners have also

suggested that the Board could consolidate the two schools, one site

(e.g., Watkins) serving grades 1-7 and the other (e.g., New Kent)

serving grades 12, this being the grade division respondent makes

between elementary and secondary levels.  Petitioners contend this would

result in a more efficient system by eliminating costly duplication in

this relatively small district while at the same time achieving

immediate dismantling of the dual system.



These are two suggestions the District Court should take into account

upon remand, along with any other proposed alternatives and in light of

considerations respecting other aspects of the school system such as the

matter of faculty and staff desegregation remanded to the court by the

Court of Appeals.

