About one-third of the City of Jackson's population of 40,000
are Negroes, the great majority of whom live in the city's central
area. The city school system has eight elementary, three junior
high, and two senior high schools for the 7,650 students, of whom
about 40% are Negroes. Tennessee law in 1954 required racial
segregation in schools; five elementary and two junior high schools
and one senior high school were operated as "white" schools, and
the remainder as "Negro" schools. After
Brown v. Board of
Education, 347 U. S. 483
(1954), declared such dual systems unconstitutional, Tennessee
enacted a pupil placement law, which gave local school boards
exclusive authority to approve assignments. No white students
enrolled in any "Negro" school, and only seven applications were
granted in two years permitting Negro pupils to enroll in "white"
schools. In March, 1962, the Court of Appeals held that law
inadequate "as a plan to convert a biracial system into a nonracial
one." This action was brought in January, 1963, seeking a
declaratory judgment that respondents were operating a racially
segregated system, injunctive relief against maintenance of that
system, an order directing admission to named "white" schools of
Negro plaintiffs, and an order requiring the School Board to
formulate and file a desegregation plan. The District Court ordered
the students enrolled and the filing of a plan. A plan was filed,
and with court-directed modifications, was approved in August,
1963, to be effective at once in the elementary schools and to be
extended over a four-year period to junior and senior high schools.
The modified plan provides for automatic assignment of pupils
within attendance zones drawn along geographic or "natural"
boundaries, and "according to the capacity and facilities" of the
schools. However, the plan also has a "free-transfer" provision by
which a student may freely transfer to a school of his choice if
space is available, zone residents having priority in case of
overcrowding. No bus service is provided. After one year the Negro
elementary schools remained
Page 391 U. S. 451
all Negro, and 118 Negro pupils were scattered among four
formerly all-white schools. Petitioners moved for further relief
and the District Court held the plan had been administered
discriminatorily. In the same proceeding the Board filed its
proposed zones for the three junior high schools, to which
petitioners objected on the grounds that the zones were racially
gerrymandered and that the plan was inadequate to reorganize the
system on a nonracial basis. Petitioners urged that the Board be
required to use a "feeder system," whereby each junior high would
draw its students from specific elementary schools. The District
Court held that petitioners had not sustained the allegations that
the zones were gerrymandered and concluded that "there is no
constitutional requirement" that the "feeder system" be adopted.
The Court of Appeals affirmed, except on the issue of faculty
segregation. Three years later, the Negro junior high, which had
over 80% of the Negro junior high students, had no white students,
one "white" junior high had seven Negroes out of 819 students, and
the other had 349 white and 135 Negro pupils.
Held:
1. The "free-transfer" plan clearly does not meet respondent
Board's
"affirmative duty to take whatever steps might be necessary to
convert to a unitary system in which racial discrimination would be
eliminated root and branch,"
Green v. County School Board, ante at
391 U. S.
437-438, "[r]ather than further the dismantling of the
dual system, the ["free-transfer"] plan has operated simply to
burden children and their parents with a responsibility . . .
placed squarely on the School Board."
Id. at
391 U. S.
441-442. P.
391 U. S.
458.
2. Since it has not been shown that the "free-transfer" plan
will further, rather than delay conversion to a unitary nonracial
system, it is unacceptable, and the Board must formulate a new plan
which promises realistically to convert promptly to a unitary,
nondiscriminatory school system. Pp.
391 U. S.
459-460.
380 F.2d 955, vacated in part and remanded.
Page 391 U. S. 452
MR. JUSTICE BRENNAN delivered the opinion of the Court.
This case was argued with No. 695,
Green v. County School
Board of New Kent County, ante, p.
391 U. S. 430, and
No. 805,
Raney v. Board of Education of the Gould School
District, ante, p.
391 U. S. 443. The
question for decision is similar to the question decided in those
cases. Here, however, the principal feature of a desegregation plan
-- which calls in question its adequacy to effectuate a transition
to a racially nondiscriminatory system in compliance with
Brown
v. Board of Education, 349 U. S. 294
(
Brown II) -- is not "freedom of choice," but a variant
commonly referred to as "free transfer."
The respondent Board of Commissioners is the School Board for
the City of Jackson, located in midwestern Tennessee. The school
district coincides with the city limits. Some one-third of the
city's population of 40,000 are Negroes, the great majority of whom
live in the city's central area. The school system has eight
elementary schools, three junior high schools, and two senior high
schools. There are 7,650 children enrolled in the system's schools,
about 40% of whom, over 3,200, are Negroes.
In 1954, Tennessee by law required racial segregation in its
public schools. Accordingly, five elementary schools, two junior
high schools, and one senior high school were operated as "white"
schools, and three elementary schools, one junior high school, and
one senior high school were operated as "Negro" schools. Racial
segregation extended to all aspects of school life, including
faculties and staffs.
Page 391 U. S. 453
After
Brown v. Board of Education, 347 U.
S. 483 (
Brown I), declared such state-imposed
dual systems unconstitutional, Tennessee enacted a pupil placement
law, Tenn.Code ยง 49-1741
et seq. (1966). That law
continued previously enrolled pupils in their assigned schools and
vested local school boards with the exclusive authority to approve
assignment and transfer requests. No white children enrolled in any
"Negro" school under the statute, and the respondent Board granted
only seven applications of Negro children to enroll in "white"
schools, three in 1961 and four in 1962. In March, 1962, the Court
of Appeals for the Sixth Circuit held that the pupil placement law
was inadequate "as a plan to convert a biracial system into a
nonracial one."
Northcross v. Board of Education of City of
Memphis, 302 F.2d 818, 821.
In January, 1963, petitioners brought this action in the
District Court for the Western District of Tennessee. The complaint
sought a declaratory judgment that respondent was operating a
compulsory racially segregated school system, injunctive relief
against the continued maintenance of that system, an order
directing the admission to named "white" schools of the plaintiff
Negro school children, and an order requiring respondent Board to
formulate a desegregation plan. The District Court ordered the
Board to enroll the children in the schools in question and
directed the Board to formulate and file a desegregation plan. A
plan was duly filed and, after modifications directed by the court
were incorporated, the plan was approved in August, 1963, to be
effective immediately in the elementary schools and to be gradually
extended over a four-year period to the junior high schools and
senior high schools.
221 F.
Supp. 968.
The modified plan provides for the automatic assignment of
pupils living within attendance zones drawn by the Board or school
officials along geographic or "natural"
Page 391 U. S. 454
boundaries and "according to the capacity and facilities of the
[school] buildings . . ." within the zones.
Id. at 974.
However, the plan also has the "free-transfer" provision which was
ultimately to bring this case to this Court: any child, after he
has complied with the requirement that he register annually in his
assigned school in his attendance zone, may freely transfer to
another school of his choice if space is available, zone residents
having priority in cases of overcrowding. Students must provide
their own transportation; the school system does not operate school
buses.
By its terms the "free-transfer" plan was first applied in the
elementary schools. After one year of operation petitioners, joined
by 27 other Negro school children, moved in September, 1964, for
further relief in the District Court, alleging respondent had
administered the plan in a racially discriminatory manner. At that
time, the three Negro elementary schools remained all Negro, and
118 Negro pupils were scattered among four of the five formerly
all-white elementary schools. After hearing evidence, the District
Court found that, in two respects the Board had indeed administered
the plan in a discriminatory fashion. First, it had systematically
denied Negro children -- specifically the 27 intervenors -- the
right to transfer from their all-Negro zone schools to schools
where white students were in the majority, although white students
seeking transfers from Negro schools to white schools had been
allowed to transfer. The court held this to be a constitutional
violation,
see Goss v. Board of Education, 373 U.
S. 683, as well as a violation of the terms of the plan
itself.
244 F.
Supp. 353, 359. Second, the court found that the Board, in
drawing the lines of the geographic attendance zones, had
gerrymandered three elementary school zones to exclude Negro
residential areas from white school zones and to include
Page 391 U. S. 455
those areas in zones of Negro schools located farther away.
Id. at 361-362.
In the same 1964 proceeding, the Board filed with the court its
proposed zones for the three junior high schools, Jackson and
Tigrett, the "white" junior high schools, and Merry, the "Negro"
junior high school. As of the 1964 school year the three schools
retained their racial identities, although Jackson did have one
Negro child among its otherwise all-white student body. The
faculties and staffs of the respective schools were also
segregated. Petitioners objected to the proposed zones on two
grounds, arguing first that they were racially gerrymandered
because so drawn as to assign Negro children to the "Negro" Merry
school and white children to the "white" Jackson and Tigrett
schools, and alternatively that the plan was, in any event,
inadequate to reorganize the system on a nonracial basis.
Petitioners, through expert witnesses, urged that the Board be
required to adopt a "feeder system," a commonly used method of
assigning students whereby each junior high school would draw its
students from specified elementary schools. The groupings could be
made so as to assure racially integrated student bodies in all
three junior high schools, with due regard for educational and
administrative considerations such as building capacity and
proximity of students to the schools.
The District Court held that petitioners had not sustained their
allegations that the proposed junior high school attendance zones
were gerrymandered, saying
"Tigrett [white] is located in the western section, Merry
[Negro] is located in the central section and Jackson [white] is
located in the eastern section. The zones proposed by the
defendants would, generally, allocate the western section to
Tigrett, the central section to Merry, and the eastern section
to
Page 391 U. S. 456
Jackson. The boundaries follow major streets or highways and
railroads. According to the school population maps, there are a
considerable number of Negro pupils in the southern part of the
Tigrett zone, a considerable number of white pupils in the middle
and northern parts of the Merry zone, and a considerable number of
Negro pupils in the southern part of the Jackson zone. The location
of the three schools in an approximate east-west line makes it
inevitable that the three zones divide the city in three parts from
north to south. While it appears that proximity of pupils and
natural boundaries are not as important in zoning for junior highs
as in zoning for elementary schools, it does not appear that Negro
pupils will be discriminated against."
244 F. Supp. at 362. As for the recommended "feeder system," the
District Court concluded simply that "there is no constitutional
requirement that this particular system be adopted."
Ibid.
The Court of Appeals for the Sixth Circuit affirmed except on an
issue of faculty desegregation, as to which the case was remanded
for further proceedings. 380 F.2d 955. We granted certiorari, 389
U.S. 1033, and set the case for oral argument immediately following
Green v. County School Board, supra. Although the case
presented by the petition for certiorari concerns only the junior
high schools, the plan in its application to elementary and senior
high schools is also necessarily implicated since the right of
"free transfer" extends to pupils at all levels.
The principles governing determination of the adequacy of the
plan as compliance with the Board's responsibility to effectuate a
transition to a racially nondiscriminatory system are those
announced today in
Green v. County School Board, supra.
Tested by those
Page 391 U. S. 457
principles the plan is clearly inadequate. Three school years
have followed the District Court's approval of the attendance zones
for the junior high schools. Yet Merry Junior High School was still
completely a "Negro" school in the 1967-1968 school year, enrolling
some 640 Negro pupils, or over 80% of the system's Negro junior
high school students. Not one of the "considerable number of white
pupils in the middle and northern parts of the Merry zone" assigned
there under the attendance zone aspect of the plan chose to stay at
Merry. Every one exercised his option to transfer out of the
"Negro" school. The "white" Tigrett school seemingly had the same
experience in reverse. Of the "considerable number of Negro pupils
in the southern part of the Tigrett zone" mentioned by the District
Court, only seven are enrolled in the student body of 819;
apparently all other Negro children assigned to Tigrett chose to go
elsewhere. Only the "white" Jackson school presents a different
picture; there, 349 white children and 135 Negro children compose
the student body. How many of the Negro children transferred in
from the "white" Tigrett school does not appear. The experience in
the junior high schools mirrors that of the elementary schools.
Thus, the three elementary schools that were operated as Negro
schools in 1954 and continued as such until 1963 are still attended
only by Negroes. The five "white" schools all have some Negro
children enrolled, from as few as three (in a student body of 781)
to as many as 160 (in a student body of 682).
This experience with "free transfer" was accurately predicted by
the District Court as early as 1963:
"In terms of numbers . . . the ratio of Negro to white pupils is
approximately 40-60. This figure is, however, somewhat misleading
as a measure of the extent to which integration will actually
occur
Page 391 U. S. 458
under the proposed plan. Because the homes of Negro children are
concentrated in certain areas of the city, a plan of unitary
zoning, even if prepared without consideration of race, will result
in a concentration of Negro children in the zones of heretofore
'Negro' schools and white children in the zones of heretofore
'white' schools.
Moreover, this tendency of concentration in
schools will be further accentuated by the exercise of choice of
schools. . . ."
221 F. Supp. at 971. (Emphasis supplied.)
Plainly, the plan does not meet respondent's
"affirmative duty to take whatever steps might be necessary to
convert to a unitary system in which racial discrimination would be
eliminated root and branch."
Green v. County School Board, supra at
391 U. S.
437-438. Only by dismantling the state-imposed dual
system can that end be achieved. And manifestly that end has not
been achieved here, nor does the plan approved by the lower courts
for the junior high schools promise meaningful progress toward
doing so.
"Rather than further the dismantling of the dual system, the
['free transfer'] plan has operated simply to burden children and
their parents with a responsibility which
Brown II placed
squarely on the School Board."
Green v. County School Board, supra at
391 U. S.
441-442. That the Board has chosen to adopt a method
achieving minimal disruption of the old pattern is evident from its
long delay in making any effort whatsoever to desegregate, and the
deliberately discriminatory manner in which the Board administered
the plan until checked by the District Court.
The District Court approved the junior high school attendance
zone lines in the view that as drawn they assigned students to the
three schools in a way that was capable of producing meaningful
desegregation of all three schools. But the "free-transfer" option
has
Page 391 U. S. 459
permitted the "considerable number" of white or Negro students
in at least two of the zones to return, at the implicit invitation
of the Board, to the comfortable security of the old, established
discriminatory pattern. Like the transfer provisions held invalid
in
Goss v. Board of Education, 373 U.
S. 683,
373 U. S. 686,
"[i]t is readily apparent that the transfer [provision] lends
itself to perpetuation of segregation." While we there indicated
that "free transfer" plans under some circumstances might be valid,
we explicitly stated that "no official transfer plan or provision
of which racial segregation is the inevitable consequence may stand
under the Fourteenth Amendment."
Id. at
373 U. S. 689.
So it is here; no attempt has been made to justify the transfer
provision as a device designed to meet "legitimate local problems,"
ibid.; rather, it patently operates as a device to allow
resegregation of the races to the extent desegregation would be
achieved by geographically drawn zones. Respondent's argument in
this Court reveals its purpose. We are frankly told in the Brief
that without the transfer option it is apprehended that white
students will flee the school system altogether.
"But it should go without saying that the vitality of these
constitutional principles cannot be allowed to yield simply because
of disagreement with them."
Brown II at
349 U. S.
300.
We do not hold that "free transfer" can have no place in a
desegregation plan. But like "freedom of choice," if it cannot be
shown that such a plan will further, rather than delay conversion
to a unitary, nonracial, nondiscriminatory school system, it must
be held unacceptable.
See Green v. County School Board,
supra at
391 U. S.
439-441.
We conclude, therefore, that the Board
"must be required to formulate a new plan and, in light of other
courses which appear open to the Board, . . . fashion steps which
promise realistically to convert promptly to a
Page 391 U. S. 460
system without a 'white' school and a 'Negro' school, but just
schools."
Id. at
391 U. S. 442.
*
The judgment of the Court of Appeals is vacated insofar as it
affirmed the District Court's approval of the plan in its
application to the junior high schools, and the case is remanded
for further proceedings consistent with this opinion and with our
opinion in
Green v. County School Board, supra.
It is so ordered.
* We imply no agreement with the District Court's conclusion
that, under the proposed attendance zones for junior high schools,
"it does not appear that Negro pupils will be discriminated
against." We note also that, on the record as it now stands, it
appears that petitioners' recommended "feeder system," the
feasibility of which respondent did not challenge in the District
Court, is an effective alternative reasonably available to
respondent to abolish the dual system in the junior high
schools.