In 1967, Emporia, Virginia, which is located in the center of
Greensville County, changed from a "town" to a politically
independent "city" authorized by state law to provide its own
public school system. By a shared-cost agreement with the county,
Emporia in 1968 continued an arrangement, which antedated its
change of status, to use the county public school system for
education of its children. As a consequence of the present
desegregation lawsuit initiated in 1965, the single school division
was operating under a "freedom of choice" plan approved by the
District Court. Petitioners moved to modify that plan following
this Court's decision in
Green v. County School Board,
391 U. S. 430. The
District Court, after a hearing, on June 25, 1969, ordered
petitioners' "pairing" plan to take effect as of the start of the
1969-1970 school year. Two weeks after entry of the District
Court's decree, the city announced its plan to operate a separate
school system and sought termination of the 1968 agreement. On
August 1, 1969, petitioners filed a supplemental complaint seeking
to enjoin the city council and school board (named as additional
parties defendant) from withdrawing Emporia children from the
county schools. Following hearings, the District Court found that
the effect of Emporia's withdrawal would be a "substantial increase
in the proportion of whites in the schools attended by city
residents, and a concomitant decrease in the county schools." In
addition to the disparity in racial percentages, the court found
that the proportion of whites in county schools might drop as
county school whites shifted to private academies, while some
whites might return to city schools from the academies they
previously attended; that two formerly all-white schools (both
better equipped and better located than the county schools) are in
Emporia, while all the schools in the surrounding county were
formerly all-Negro; and that Emporia, which long had the right to
establish a separate school system, did not decide to do so until
the court's order prevented the county from continuing its
long-maintained segregated school system. The court concluded that
Emporia's withdrawal would frustrate the June 25 decree, and
enjoined respondents from
Page 407 U. S. 452
pursuing their plan. Holding that the question whether new
school district boundaries should be permitted in areas with a
history of state-enforced racial segregation must be resolved in
terms of the "dominant purpose of [the] boundary realignment," the
Court of Appeals concluded that Emporia's primary purpose was
"benign," and not a mere "cover-up" for racial discrimination, and
reversed.
Held:
1. In determining whether realignment of school districts by
officials comports with the requirements of the Fourteenth
Amendment, courts will be guided not by the motivation of the
officials, but by the effect of their action. Pp.
407 U. S.
461-462.
2. In the totality of the circumstances of this case, the
District Court was justified in concluding that Emporia's
establishment of a separate school system would impede the process
of dismantling the segregated school system. Pp.
407 U. S.
463-471.
442 F.2d 570, reversed.
STEWART, J., delivered the opinion of the Court, in which
DOUGLAS, BRENNAN, WHITE, and MARSHALL, JJ., joined. BURGER, C.J.,
filed a dissenting opinion, in which BLACKMUN, POWELL, and
REHNQUIST, JJ., joined,
post, p.
407 U. S.
471.
MR. JUSTICE STEWART delivered the opinion of the Court.
We granted certiorari in this case, as in No. 7130,
United
States v. Scotland Neck City Board of Education, [
Footnote 1]
post, p.
407 U. S. 484, to
consider the circumstances under
Page 407 U. S. 453
which a federal court may enjoin state or local officials from
carving out a new school district from an existing district that
has not yet completed the process of dismantling a system of
enforced racial segregation. We did not address ourselves to this
rather narrow question in
Swann v. Charlotte-Mecklenburg Board
of Education, 402 U. S. 1, and its
companion cases decided last Term, [
Footnote 2] but the problem has confronted other federal
courts in one form or another on numerous occasions in recent
years. [
Footnote 3] Here, as in
Scotland Neck, the Court of Appeals reversed a district
court decision enjoining the creation of a new school district. 442
F.2d 570. We conclude that the Court of Appeals erred in its
interpretation of the legal principles applicable in cases such as
these, and that the District Court's order was proper in the
circumstances of this case.
I
The City of Emporia lies near the center of Greensville County,
Virginia, a largely rural area located on the North Carolina
border. Until 1967, Emporia was
Page 407 U. S. 454
a "town" under Virginia law, which meant that it was a part of
the surrounding county for practically all purposes, including the
purpose of providing public education for children residing in the
county.
In 1967, Emporia, apparently dissatisfied with the county's
allocation of revenues from the newly enacted state sales tax,
successfully sought designation as a "city of the second class."
[
Footnote 4] As such, it became
politically independent from the surrounding county, and undertook
a separate obligation under state law to provide free public
schooling to children residing within its borders. [
Footnote 5] To fulfill this responsibility,
Emporia at first sought the county's agreement to continue
operating the school system on virtually the same basis as before,
with Emporia sharing in the administration as well as the financing
of the schools. [
Footnote 6]
When the county officials refused to enter into an arrangement of
this kind, Emporia agreed to a contract whereby the county would
continue to educate students residing in the city in exchange for
Emporia's payment of a specified share of the total cost of the
system. Under this agreement, signed in April, 1968, Emporia had a
formal voice in the administration of the schools only through its
participation
Page 407 U. S. 455
in the selection of a superintendent. The city and county were
designated as a single school "division" by the State Board of
Education, [
Footnote 7] and
this arrangement was still in effect at the time of the District
Court's order challenged in this case.
This lawsuit began in 1965, when a complaint was filed on behalf
of Negro children seeking an end to state-enforced racial
segregation in the Greensville County school system. Prior to 1965,
the elementary and high schools located in Emporia served all white
children in the county, while Negro children throughout the county
were assigned to a single high school or one of four elementary
schools, all but one of which were located outside the Emporia town
boundary. In January, 1966, the District Court approved a so-called
"freedom of choice" plan that had been adopted by the county in
April of the previous year.
Wright v. School Board of
Greensville County, 252 F.
Supp. 378. No white students ever attended the Negro schools
under this plan, and, in the 1968-1969 school year, only 98 of the
county's 2,510 Negro students attended white schools. The school
faculties remained completely segregated.
Following our decision in
Green v. County School Board,
391 U. S. 430,
holding that a freedom of choice plan was an unacceptable method of
desegregation where it failed "to provide meaningful assurance of
prompt and effective disestablishment of a dual system,"
id. at
391 U. S. 438,
the petitioners filed a motion for further relief. The District
Court ordered the county to demonstrate its compliance with the
holding in
Green, or to submit a plan designed to bring
the schools into compliance. After various delays, during which the
freedom of choice system
Page 407 U. S. 456
remained in effect, the county submitted two alternative plans.
The first would have preserved the existing system with slight
modifications, and the second would have assigned students to
schools on the basis of curricular choices or standardized test
scores. The District Court promptly rejected the first of these
proposals, and took the second under advisement. Meanwhile, the
petitioners submitted their own proposal, under which all children
enrolled in a particular grade level would be assigned to the same
school, thus eliminating any possibility of racial bias in pupil
assignments. Following an evidentiary hearing on June 23, 1969, the
District Court rejected the county's alternative plan, finding that
it would "substitute . . . one segregated school system for another
segregated school system." By an order dated June 25, the court
ordered the county to implement the plan submitted by the
petitioners, referred to by the parties as the "pairing" plan, as
of the start of the 1969-1970 school year. [
Footnote 8]
Two weeks after the District Court entered its decree, the
Emporia City Council sent a letter to the county Board of
Supervisors announcing the city's intention to operate a separate
school system beginning in September. The letter stated that an
"in-depth study and analysis of the directed school arrangement
reflects a totally unacceptable situation to the Citizens and City
Council of the City of Emporia."
It asked that the 1968 city-county agreement be terminated by
mutual consent, and that title to school property located within
Emporia be transferred to the city. The letter further
Page 407 U. S. 457
advised that children residing in the county would be permitted
to enroll in the city schools on a tuition basis. [
Footnote 9] At no time during this period did
the city officials meet with the county council or school board to
discuss the implementation of the pairing decree, nor did they
inform the District Court of their intentions with respect to the
separate school system.
The county school board refused either to terminate the existing
agreement or to transfer school buildings to Emporia, citing its
belief that Emporia's proposed action was "not in the best interest
of the children in Greensville County." The City Council and the
City School Board nevertheless continued to take steps toward
implementing the separate system throughout the month of July.
Notices were circulated inviting parents to register their children
in the city system, and a request was made to the State Board of
Education to certify Emporia as a separate school division. This
request was tabled by the State Board at its August meeting, "in
light of matters pending in the federal court."
According to figures later supplied to the District Court, there
were 3,759 children enrolled in the unitary system contemplated by
the desegregation decree, of whom 66 were Negro and 340 were white.
Had Emporia established a separate school system, 1,123 of these
students would have attended the city schools, of whom 48% were
white. It is undisputed that the city proposed to operate its own
schools on a unitary
Page 407 U. S. 458
basis, with all children enrolled in any particular grade
attending the same school.
On August 1, 1969, the petitioners filed a supplemental
complaint naming the members of the Emporia City Council and the
City School Board as additional parties defendant, [
Footnote 10] and seeking to enjoin them
from withdrawing Emporia children from the county schools. At the
conclusion of a hearing on August 8, the District Court found that
the establishment of a separate school system by the city would
constitute "an impermissible interference with and frustration of"
its order of June 25, and preliminarily enjoined the respondents
from taking "any action which would interfere in any manner
whatsoever with the implementation of the Court's order heretofore
entered. . . ."
The schools opened in September under the pairing order, while
Emporia continued to work out detailed plans and budget estimates
for a separate school system in the hope that the District Court
would allow its implementation during the following school year. At
a further hearing in December, the respondents presented an expert
witness to testify as to the educational advantages of the proposed
city system, and asked that the preliminary injunction be
dissolved. On March 2, 1970, the District Court entered a
memorandum opinion and order denying the respondents' motion and
making the injunction permanent.
309 F.
Supp. 671. The
Page 407 U. S. 459
Court of Appeals for the Fourth Circuit reversed, 442 F.2d 570,
but stayed its mandate pending action by this Court on a petition
for certiorari, which we granted. 404 U.S. 820.
II
Emporia takes the position that, since it is a separate
political jurisdiction entitled under state law to establish a
school system independent of the county, its action may be enjoined
only upon a finding either that the state law under which it acted
is invalid, that the boundaries of the city are drawn so as to
exclude Negroes, or that the disparity of the racial balance of the
city and county schools, of itself, violates the Constitution. As
we read its opinion, the District Court made no such findings; nor
do we.
The constitutional violation that formed the predicate for the
District Court's action was the enforcement until 1969 of racial
segregation in a public school system of which Emporia had always
been a part. That finding has not been challenged, nor has Emporia
questioned the propriety of the "pairing" order of June 25, 1969,
which was designed to remedy the condition that offended the
Constitution. Both before and after it became a city, Emporia
educated its children in the county schools. Only when it became
clear -- 15 years after our decision in
Brown v. Board of
Education, 347 U. S. 483 --
that segregation in the county system was finally to be abolished,
did Emporia attempt to take its children out of the county system.
Under these circumstances, the power of the District Court to
enjoin Emporia's withdrawal from that system need not rest upon an
independent constitutional violation. The court's remedial power
was invoked on the basis of a finding that the dual school system
violated the Constitution, and, since the city and the county
constituted
Page 407 U. S. 460
but one unit for the purpose of student assignments during the
entire time that the dual system was maintained, they were properly
treated as a single unit for the purpose of dismantling that
system.
In
Green v. County School Board, 391 U.
S. 430, the issue was whether the school board's
adoption of a "freedom of choice" plan constituted adequate
compliance with the mandate of
Brown v. Board of
Education, 349 U. S. 294
(
Brown II). We did not hold that a freedom of choice plan
is of itself unconstitutional. Rather, we decided that any plan is
"unacceptable" where it "fails to provide meaningful assurance of
prompt and effective disestablishment of a dual system. . . ." 391
U.S. at
391 U. S. 438.
In
Monroe v. Board of Commissioners, 391 U.
S. 450, we applied the same principle in rejecting a
"free transfer" plan adopted by the school board as a method of
desegregation:
"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."
Id. at
391 U. S. 459.
The effect of Emporia's proposal was to erect new boundary lines
for the purpose of school attendance in a district where no such
lines had previously existed, and where a dual school system had
long flourished. Under the principles of
Green and
Monroe, such a proposal must be judged according to
whether it hinders or furthers the process of school desegregation.
If the proposal would impede the dismantling of the dual system,
then a district court, in the exercise of its remedial discretion,
may enjoin it from being carried out.
The Court of Appeals apparently did not believe this case to be
governed by the principles of
Green and
Page 407 U. S. 461
Monroe. [
Footnote 11] It
held that the question whether new school district boundaries
should be permitted in areas with a history of state-enforced
racial segregation is to be resolved in terms of the "dominant
purpose of [the] boundary realignment."
"If the creation of a new school district is designed to further
the aim of providing quality education and is attended secondarily
by a modification of the racial balance, short of resegregation,
the federal courts should not interfere. If, however, the primary
purpose for creating a new school district is to retain as much of
separation of the races as possible, the state has violated its
affirmative constitutional duty to end state supported school
segregation."
442 F.2d at 572. Although the District Court had found that, "in
a sense, race was a factor in the city's decision to secede," 309
F. Supp. at 680, the Court of Appeals found that the primary
purpose of Emporia's action was "benign," and was not "merely a
cover-up" for racial discrimination. 442 F.2d at 574.
This "dominant purpose" test finds no precedent in our
decisions. It is true that, where an action by school authorities
is motivated by a demonstrated discriminatory purpose, the
existence of that purpose may add to the discriminatory effect of
the action by intensifying the stigma of implied racial
inferiority. And where a school board offers nonracial
justifications for a plan that is less effective than other
alternatives for dismantling a dual school system, a demonstrated
racial purpose may be taken into consideration in determining the
weight to be given to the proffered justification.
Page 407 U. S. 462
Cf. Green, supra, at
391 U. S. 439.
But as we said in
Palmer v. Thompson, 403 U.
S. 217,
403 U. S. 225,
it
"is difficult or impossible for any court to determine the
'sole' or 'dominant' motivation behind the choices of a group of
legislators,"
and the same may be said of the choices of a school board. In
addition, an inquiry into the "dominant" motivation of school
authorities is as irrelevant as it is fruitless. The mandate of
Brown II was to desegregate schools, and we have said that
"[t]he measure of any desegregation plan is its effectiveness."
Davis v. School Commissioners of Mobile County,
402 U. S. 33,
402 U. S. 37.
Thus, we have focused upon the effect -- not the purpose or
motivation -- of a school board's action in determining whether it
is a permissible method of dismantling a dual system. The existence
of a permissible purpose cannot sustain an action that has an
impermissible effect.
The reasoning of the Court of Appeals in this case is at odds
with that of other federal courts that have held that splinter
school districts may not be created
"where the effect -- to say nothing of the purpose -- of the
secession has a substantial adverse effect on desegregation of the
county school district."
Lee v. Macon County Board of Education, 448 F.2d 746,
752.
See also Stout v. Jefferson County Board of
Education, 448 F.2d 403, 404;
Haney v. County Board of
Education, 410 F.2d 920, 924;
Burleson v. County Board of
Election Commissioners, 308 F.
Supp. 352, 356,
aff'd, 432 F.2d 1356;
Aytch v.
Mitchell, 320
F. Supp. 1372, 1377. Though the purpose of the new school
districts was found to be discriminatory in many of these cases,
the courts' holdings rested not on motivation or purpose, but on
the effect of the action upon the dismantling of the dual school
systems involved. That was the focus of the District Court in this
case, and we hold that its approach was proper.
Page 407 U. S. 463
III
The basis for the District Court's ruling was its conclusion
that, if Emporia were allowed to establish an independent system,
Negroes remaining in the county schools would be deprived of what
Brown II promised them: a school system in which all
vestiges of enforced racial segregation have been eliminated. The
District Court noted that the effect of Emporia's withdrawal would
be a "substantial increase in the proportion of whites in the
schools attended by city residents, and a concomitant decrease in
the county schools." 309 F. Supp. at 680. In addition, the court
found that the departure of the city's students, its leadership,
and its financial support, together with the possible loss of
teachers to the new system, would diminish the chances that
transition to unitary schools in the county would prove
"successful."
Certainly, desegregation is not achieved by splitting a single
school system operating "white schools" and "Negro schools" into
two new systems, each operating unitary schools within its borders,
where one of the two new systems is, in fact, "white" and the other
is, in fact, "Negro." Nor does a court supervising the process of
desegregation exercise its remedial discretion responsibly where it
approves a plan that, in the hope of providing better "quality
education" to some children, has a substantial adverse effect upon
the quality of education available to others. In some cases, it may
be readily perceived that a proposed subdivision of a school
district will produce one or both of these results. In other cases,
the likelihood of such results may be less apparent. This case is
of the latter kind, but an examination of the record shows that the
District Court's conclusions were adequately supported by the
evidence.
Page 407 U. S. 464
Data submitted to the District Court at its December hearing
showed that the school system in operation under the "pairing"
plan, including both Emporia and the county, had a racial
composition of 34% white and 66% Negro. If Emporia had established
its own system, and if total enrollment had remained the same, the
city's schools would have been 48% white and 52% Negro, while the
county's schools would have been 28% white and 72% Negro.
We need not and do not hold that this disparity in the racial
composition of the two systems would be a sufficient reason,
standing alone, to enjoin the creation of the separate school
district. The fact that a school board's desegregation plan leaves
some disparity in racial balance among various schools in the
system does not, alone, make that plan unacceptable. [
Footnote 12] We observed in
Swann, supra, that
"[t]he constitutional command to desegregate schools does not
mean that every school in every community must always reflect the
racial composition of the school system as a whole."
402 U.S. at
402 U. S. 24.
But there is more to this case than the disparity in racial
percentages reflected by the figures supplied by the school board.
In the first place, the District Court found that, if Emporia were
allowed to withdraw from the existing system, it "may be
anticipated that the proportion of whites in county schools may
drop as those who can register in private academies," 309 F. Supp.
at 680, while some whites might return to the city schools from the
private schools in which they had previously enrolled. Thus, in the
judgment of the District Court, the statistical breakdown of the
1969-1970 enrollment figures between city residents and county
Page 407 U. S. 465
residents did not reflect what the situation would have been had
Emporia established its own school system.
Second, the significance of any racial disparity in this case is
enhanced by the fact that the two formerly all-white schools are
located within Emporia, while all the schools located in the
surrounding county were formerly all-Negro. The record further
reflects that the school buildings in Emporia are better equipped
and are located on better sites than are those in the county. We
noted in
Swann that factors such as these may, in
themselves, indicate that enforced racial segregation has been
perpetuated:
"Independent of student assignment, where it is possible to
identify a 'white school' or a 'Negro school' simply by reference
to the racial composition of teachers and staff, the quality of
school buildings and equipment, or the organization of sports
activities, a
prima facie case of violation of substantive
constitutional rights under the Equal Protection Clause is
shown."
402 U.S. at
402 U. S. 18.
Just as racial balance is not required in remedying a dual system,
neither are racial ratios the sole consideration to be taken into
account in devising a workable remedy.
The timing of Emporia's action is a third factor that was
properly taken into account by the District Court in assessing the
effect of the action upon children remaining in the county schools.
While Emporia had long had the right under state law to establish a
separate school system, its decision to do so came only upon the
basis of -- and, as the city officials conceded, in reaction to --
a court order that prevented the county system from maintaining any
longer the segregated system that had lingered for 15 years after
Brown I. In the words of Judge Winter, dissenting in the
Court
Page 407 U. S. 466
of Appeals,
"[i]f the establishment of an Emporia school district is not
enjoined, the black students in the county will watch as nearly
one-half the total number of white students in the county abandon
the county schools for a substantially whiter system."
442 F.2d at 590. The message of this action, coming when it did,
cannot have escaped the Negro children in the county. As we noted
in
Brown I:
"To separate [Negro school children] from others of similar age
and qualifications solely because of their race generates a feeling
of inferiority as to their status in the community that may affect
their hearts and minds in a way unlikely ever to be undone."
347 U.S. at
347 U. S. 494.
We think that, under the circumstances, the District Court could
rationally have concluded that the same adverse psychological
effect was likely to result from Emporia's withdrawal of its
children from the Greensville County system.
The weighing of these factors to determine their effect upon the
process of desegregation is a delicate task that is aided by a
sensitivity to local conditions, and the judgment is primarily the
responsibility of the district judge.
See Brown II, supra,
at
349 U. S. 299.
[
Footnote 13] Given the
totality of the circumstances, we hold that the District Court was
justified in its conclusion that Emporia's establishment of a
separate system would actually impede the process of dismantling
the existing dual system.
Page 407 U. S. 467
IV
Against these considerations, Emporia advances arguments that a
separate system is necessary to achieve "quality education" for
city residents, and that it is unfair, in any event, to force the
city to continue to send its children to schools over which the
city, because of the character of its arrangement with the county,
has very little control. These arguments are entitled to
consideration by a court exercising its equitable discretion where
they are directed to the feasibility or practicality of the
proposed remedy.
See Swann v. Charlotte-Mecklenburg Board of
Education, supra, at
402 U. S. 31.
But, as we said in
Green v. County School Board, supra,
the availability of "more promising courses of action" to dismantle
a dual system "at the least . . . , places a heavy burden upon the
board to explain its preference for an apparently less effective
method." 391 U.S. at
391 U. S.
439.
In evaluating Emporia's claims, it must be remembered that the
city represents the interests of less than one-third of the
students in the system being desegregated. Only the city officials
argue that their plan is preferable to the "pairing" plan
encompassing the whole of the city-county system. Although the
county school board took no position in the District Court either
for or against Emporia's action, it had previously adopted a
resolution stating its belief that the city's action was not in the
best interests of the county children. In terms of
Green,
it was only the respondents -- not the county school board -- who
expressed a "preference for an apparently less effective method" of
desegregation.
At the final hearing in the District Court, the respondents
presented detailed budgetary proposals and other evidence
demonstrating that they contemplated a more
Page 407 U. S. 468
diverse and more expensive educational program than that to
which the city children had been accustomed in the Greensville
County schools. These plans for the city system were developed
after the preliminary injunction was issued in this case. In
August, 1969, one month before classes were scheduled to open, the
city officials were intent upon operating a separate system despite
the fact that the city had no buildings under lease, no teachers
under contract, and no specific plans for the operation of the
schools. Thus, the persuasiveness of the "quality education"
rationale was open to question. More important, however, any
increased quality of education provided to city students would,
under the circumstances found by the District Court, have been
purchased only at the price of a substantial adverse effect upon
the viability of the county system. The District Court, with its
responsibility to provide an effective remedy for segregation in
the entire city-county system, could not properly allow the city to
make its part of that system more attractive where such a result
would be accomplished at the expense of the children remaining in
the county.
A more weighty consideration put forth by Emporia is its lack of
formal control over the school system under the terms of its
contract with the county. This argument is properly addressed to
the practicality of the District Court's action. As we said in
Davis v. School Commissioners of Mobile County, 402 U.S.
at
402 U. S.
37:
"Having once found a violation, the district judge or school
authorities should make every effort to achieve the greatest
possible degree of actual desegregation, taking into account the
practicalities of the situation."
And in
Swann, supra, we noted that a desegregation plan
cannot be regarded as a proper exercise of a district
Page 407 U. S. 469
court's discretion where it is not "reasonable, feasible and
workable." 402 U.S. at
402 U. S. 31.
We do not underestimate the deficiencies, from Emporia's
standpoint, in the arrangement by which it undertook in 1968 to
provide for the education of its children. Direct control over
decisions vitally affecting the education of one's children is a
need that is strongly felt in our society, and, since 1967, the
citizens of Emporia have had little of that control. But Emporia
did find its arrangement with the county both feasible and
practical up until the time of the desegregation decree issued in
the summer of 1969. While city officials testified that they were
dissatisfied with the terms of the contract prior to that time,
they did not attempt to change it. They argued that the arrangement
became intolerable when the "pairing" decree was entered, because
the county officials who would control the budget of the unitary
system lacked the desire to make the unitary system work. The
District Court did not accept the contention that a lack of
enthusiasm on the part of county leaders would, if Emporia children
remained in the system, block a successful transition to unitary
schools. The court felt that the "desire of the city leaders,
coupled with their obvious leadership ability," would make itself
felt despite the absence of any formal control by the city over the
system's budget and operation, and that the city's leadership would
be "an important facet in the successful operation of any
court-ordered plan." 309 F. Supp. at 679. Under these
circumstances, we cannot say that the enforced continuation of the
single city-county system was not "reasonable, feasible and
workable." [
Footnote 14]
Page 407 U. S. 470
The District Court explicitly noted in its opinion that its
injunction does not have the effect of locking Emporia into its
present circumstances for all time. As already noted, our holding
today does not rest upon a conclusion that the disparity in racial
balance between the city and county schools resulting from separate
systems would, absent any other considerations, be unacceptable.
The city's creation of a separate school system was enjoined
because of the effect it would have had at the time upon the
effectiveness of the remedy ordered to dismantle the dual system
that had long existed in the area. Once the unitary system has been
established and accepted, it may be that Emporia, if it still
desires to do so, may establish an independent system without such
an adverse effect upon the students remaining in the county, or it
may be able to work out a more satisfactory arrangement with the
county for joint operation of the existing system. We hold only
that a new school district may not be created where its effect
would be to impede the process of dismantling a dual system. And in
making that essentially factual determination in any particular
case,
"we must of necessity rely to a large extent, as this Court has
for more than 16 years, on the informed judgment of the district
courts, in the first instance, and on courts of appeals."
Swann, supra, at
402 U. S. 28. In
this case, we believe that the District Court
Page 407 U. S. 471
did not abuse its discretion. For these reasons, the judgment of
the Court of Appeals is
Reversed.
[
Footnote 1]
Together with No. 7187,
Cotton v. Scotland Neck City Board
of Education.
[
Footnote 2]
The companion cases were
Davis v. Board of School
Commissioners, 402 U. S. 33;
McDaniel v. Barresi, 402 U. S. 39;
Board of Education v. Swann, 402 U. S.
43; and
Moore v. Board of Education,
402 U. S. 47.
[
Footnote 3]
On the same day that it reversed the District Court orders in
this case and in the
Scotland Neck cases, the Court of
Appeals for the Fourth Circuit affirmed an order enjoining the
creation of a new school district in another county of North
Carolina.
Turner v. Littleton-Lake Gaston School District,
442 F.2d 584. Other cases dealing with attempts to split school
districts in the process of desegregation are
Lee v. Macon
County Board of Education, 448 F.2d 746;
Stout v.
Jefferson County Board of Education, 448 F.2d 403;
Haney
v. County Board of Education, 410 F.2d 920;
United States
v. Texas, 321 F.
Supp. 1043, 1052,
aff'd with modifications, 447 F.2d
441;
Burleson v. County Board of Election
Commissioners, 308 F.
Supp. 352,
aff'd, 432 F.2d 1356;
Aytch v.
Mitchell, 320 F.
Supp. 1372.
[
Footnote 4]
Va.Code Ann. § 15.1-982.
[
Footnote 5]
See Va.Code Ann. § 22-93;
Colonial Heights v.
County of Chesterfield, 196 Va. 155, 82 S.E.2d 566 (1954).
[
Footnote 6]
Emporia was entitled under state law to establish an independent
school system when it became a city in 1967, but it chose not to do
so because, according to the testimony of the chairman of the city
school board, a separate system did not seem practical at the time.
In a letter to the County Board of Supervisors in July, 1969, the
Emporia City Council stated that it had authorized a combined
system in 1968 because it believed that
"the educational interest of Emporia citizens, their children
and those of the citizens and children of Greensville County could
best be served by continuing a combined City-County school
division, thus giving students from both political subdivisions
full benefits of a larger school system."
[
Footnote 7]
Under Virginia law as it stood in 1969, the school "division"
was the basic unit for the purpose of school administration.
See Va.Code Ann. §§ 22-30, 22-34, 22-100.1.
[
Footnote 8]
The plan was later modified in certain respects at the request
of the county school board, and, as modified, it has been in
operation since September, 1969. Because the four schools located
outside Emporia's city limits are all in close proximity to the
city, the "pairing" plan apparently involved little additional
transportation of students.
[
Footnote 9]
The District Court took special note of this transfer
arrangement in its memorandum accompanying the preliminary
injunction issued in August, 1969. At the time of the final
hearing, however, the respondents assured the court that, if
allowed to operate a separate system, they would not permit
transfers from the county without prior permission of the
court.
[
Footnote 10]
Because the county school board had ultimate responsibility for
the administration of the schools under the combined system, the
members of the Emporia school board were not originally parties to
the lawsuit. But the District Court's desegregation decree bound
both county officials "and their successors," and the District
Court treated the Emporia school board members, insofar as they
intended to replace the county board as administrators of part of
the system under court order, as "successors" to the members of the
county board.
[
Footnote 11]
The decision of the Court of Appeals was rendered less than a
month prior to our decision in
Swann v. Charlotte-Mecklenburg
Board of Education, 402 U. S. 1.
[
Footnote 12]
The court order that we approved in
Swann, supra,
itself provided for student bodies ranging from 9% Negro to 38%
Negro.
[
Footnote 13]
"Full implementation of these constitutional principles may
require solution of varied local school problems. School
authorities have the primary responsibility for elucidating,
assessing, and solving these problems; courts will have to consider
whether the action of school authorities constitutes good faith
implementation of the governing constitutional principles. Because
of their proximity to local conditions and the possible need for
further hearings, the courts which originally heard these cases can
best perform this judicial appraisal."
349 U.S. at
349 U. S.
299.
[
Footnote 14]
City officials testified that one of the primary objections to
the court's "pairing" decree was that it required a student to
attend six schools in the space of 12 years. Dr. Tracey, the expert
witness for the respondents, expressed the view that this aspect of
the decree had undesirable effects from an educator's point of
view. This argument, however, was never made to the District Court
either before or at the time it adopted the "pairing" plan. Indeed,
the city officials never even met with the county school board or
participated in the hearings that preceded the decree. After the
June 25 order was entered, the District Court modified it at the
request of the county board, and, at the hearing on a preliminary
injunction against Emporia's withdrawal from the system, the court
noted that it would be "delighted to entertain motions for
amendment of the [pairing] plan at any time."
App. 185a.
MR. CHIEF JUSTICE BURGER, with whom MR. JUSTICE BLACKMUN, MR.
JUSTICE POWELL, and MR. JUSTICE REHNQUIST join, dissenting.
If it appeared that the city of Emporia's operation of a
separate school system would either perpetuate racial segregation
in the schools of the Greensville County area or otherwise
frustrate the dismantling of the dual system in that area, I would
unhesitatingly join in reversing the judgment of the Court of
Appeals and reinstating the judgment of the District Court.
However, I do not believe the record supports such findings, and
can only conclude that the District Court abused its discretion in
preventing Emporia from exercising its lawful right to provide for
the education of its own children.
By accepting the District Court's conclusion that Emporia's
operation of its own schools would "impede the dismantling of the
dual system," the Court necessarily implies that the result of the
severance would be something less than unitary schools, and that
segregated education would persist in some measure in the
classrooms of the Greensville County area. The Court does not
articulate the standard by which it reaches this conclusion, and
its result far exceeds the contemplation of
Brown v. Board of
Education, 347 U. S. 483
(1954), and all succeeding cases, including
Swann v.
Charlotte-Mecklenburg Board of Education, 402 U. S.
1 (1971).
If the severance of the two systems were permitted to proceed,
the assignment of children to schools would depend solely on their
residence. County residents would attend county schools, and city
residents would attend city schools. Assignment to schools would in
no sense
Page 407 U. S. 472
depend on race. Such a geographic assignment pattern is
prima facie consistent with the Equal Protection Clause.
See Spencer v. Kugler, 326 F.
Supp. 1235 (N.J.1971),
aff'd, 404 U.
S. 1027 (1972).
However, where a school system has been operated on a segregated
basis in the past, and where ostensibly neutral attendance zones or
district lines are drawn where none have existed before, we do not
close our eyes to the facts in favor of theory. In
Green v.
County School Board, 391 U. S. 430
(1968), the Court ruled that dual school systems must cease to
exist in an objective sense, as well as under the law. It was
apparent that, under the freedom of choice plan before the Court in
Green, the mere elimination of mandatory segregation had
provided no meaningful remedy.
Green imposed on school
boards the responsibility to
"fashion steps which promise realistically to convert promptly
to a system without a 'white' school and a 'Negro' school, but just
schools."
391 U.S. at
31 U. S. 442.
That, I believe, is precisely what would result if Emporia were
permitted to operate its own school system -- schools neither Negro
nor white, "but just schools." As separate systems, both Emporia
and Greensville County would have a majority of Negro students, the
former slightly more than half, the latter slightly more than
two-thirds. In the words of the Court of Appeals, "[t]he Emporia
city unit would not be a white island in an otherwise black
county." 442 F.2d at 573. Moreover, the Negro majority in the
remaining county system would only slightly exceed that of the
entire county area including Emporia. It is undisputed that
education would be conducted on a completely desegregated basis
within the separate systems. Thus, the situation would in no sense
be comparable to that where the creation of attendance zones within
a single formerly segregated school system leaves an inordinate
number
Page 407 U. S. 473
of one-race schools, such as were found in
Davis v. Board of
School Comm'rs, 402 U. S. 33
(1971). Rather than perpetuating a dual system, I believe the
proposed arrangement would completely eliminate all traces of
state-imposed segregation.
It is quite true that the racial ratios of the two school
systems would differ, but the elimination of such disparities is
not the mission of desegregation. We stated in
Swann v.
Charlotte-Mecklenburg Board of Education, 402 U.S. at
402 U. S. 24:
"If we were to read the holding of the District Court to
require, as a matter of substantive constitutional right, any
particular degree of racial balance or mixing, that approach would
be disapproved, and we would be obliged to reverse. The
constitutional command to desegregate schools does not mean that
every school in every community must always reflect the racial
composition of the school system as a whole."
It can no more be said that racial balance is the norm to be
sought than it can be said that mere racial imbalance was the
condition requiring a judicial remedy. The pointlessness of such a
"racial balancing" approach is well illustrated by the facts of
this case. The District Court and the petitioners have placed great
emphasis on the estimated six-percent increase in the proportion of
Negro students in the county schools that would result from
Emporia's withdrawal. I do not see how a difference of one or two
children per class [
Footnote 2/1]
would even be noticed, let alone how it would render
Page 407 U. S. 474
a school part of a dual system. We have seen that the normal
movement of populations could bring about such shifts in a
relatively short period of time. Obsession with such minor
statistical differences reflects the gravely mistaken view that a
plan providing more consistent racial ratios is somehow more
unitary than one which tolerates a lack of racial balance. Since
the goal is to dismantle dual school systems, rather than to
reproduce in each classroom a microcosmic reflection of the racial
proportions of a given geographical area, there is no basis for
saying that a plan providing a uniform racial balance is more
effective or constitutionally preferred. School authorities may
wish to pursue that goal as a matter of policy, but we have made it
plain that it is not constitutionally mandated.
See Swann v.
Charlotte-Mecklenburg Board of Education, 402 U.S. at
402 U. S. 16.
The Court disavows a "racial balancing" approach, and seeks to
justify the District Court's ruling by relying on several
additional factors thought to aggravate the effect of the racial
disparity. The real significance of these additional factors is so
negligible as to suggest that the racial imbalance itself may be
what the Court finds most unacceptable.
First, the Court raises the specter of resegregation resulting
from the operation of separate school systems in the county area,
but, on the record in this case, this is, at best, highly
speculative. The Court suggests two reasons why such an additional
racial shift could be anticipated with the existence of a separate
school system for Emporia: white students residing in the county
might abandon the public schools in favor of private academies, and
white students residing in the city might leave private schools and
enroll in the city school.
In assessing these projections it is necessary to compare the
nature of the proposed separate systems with
Page 407 U. S. 475
that of the court-ordered "pairing" system. Thus, the first
possibility, that white students from the county might enter
private schools, assumes that white families would be more likely
to withdraw their children from public schools that are 72% Negro
than from those that are 66% Negro. At most, any such difference
would be marginal, and, in fact, it seems highly improbable that
there would be any difference at all. The second possibility
postulated by the Court seems equally unlikely; it assumes that
families from the city who had previously withdrawn their children
from the public schools due to impending desegregation would return
their children to public schools having more Negro than white
pupils.
The Court does not mention the possibility of some form of mass
migration of white families into the city from the outlying county.
Of course, when there are adjoining school districts differing in
their racial compositions, it is always conceivable that the
differences will be accentuated by the so-called "white flight"
phenomenon. But that danger seems remote in a situation such as
this, where there is a predominantly Negro population throughout
the entire area of concern.
Second, the Court attaches significance to the fact that the
school buildings located in the county were formerly used as
all-Negro schools, and intimates that these facilities are of
generally poorer quality than those in the city. But the District
Court made no such finding of fact, and the record does not support
the Court's suggestion on this point. Admittedly, some
dissatisfaction was expressed with the sites of the elementary
schools in the county, and only the city elementary school has an
auditorium. However, all three elementary schools located in the
county are more modern than any school building located in the
city, and the county and city high school buildings are identical
in every respect.
Page 407 U. S. 476
On a fair reading of the entire record, it can only be said that
any differences between the educational facilities located in the
city and those in the county are
de minimis.
Finally, the Court states that the process of desegregation
would be impeded by the "adverse psychological effect" that a
separate city system would have on Negro students in the county.
Here again, the Court seeks to justify the District Court's
discretionary action by reliance on a factor never considered by
that court. More important, it surpasses the bounds of reason to
equate the psychological impact of creating adjoining unitary
school systems, both having Negro majorities, with the feelings of
inferiority referred to in
Brown I as engendered by a
segregated school system. In
Brown I, the Court emphasized
that the legal policy of separating children in schools solely
according to their race inevitably generates a sense of
inferiority. These observations were supported by common human
experience and reinforced by psychological authority. Here, the
Court seeks to make a similar judgment in a setting where no child
is accorded differing treatment on the basis of race. This wholly
speculative observation by the Court is supported neither by common
experience nor by scientific authority.
Even giving maximum rational weight to all of the factors
mentioned by the Court, I cannot conclude that separate systems for
Emporia and Greensville County would be anything less than fully
unitary and nonracial. The foundation and superstructure of the
dual system would be dissolved, and the result would not factually
preserve the separation of races that existed in the past. We noted
in
Swann
"that the existence of some small number of one-race, or
virtually one-race, schools within a district is not, in and of
itself, the mark of a system that still practices segregation by
law."
402
Page 407 U. S. 477
U.S. at
402 U. S. 26.
This reflects our consistent emphasis on the elimination of the
discriminatory systems, rather than on mere numbers in particular
schools. The proposed systems here would retain no "one-race, or
virtually one-race schools," but, more important, all vestiges of
the discriminatory system would be removed. That is all the
Constitution commands.
It is argued that, even if Emporia's operation of its own
unitary school system would have been constitutionally permissible,
it was nevertheless within the equitable discretion of the District
Court to insist on a "more effective" plan of desegregation in the
form of a county-wide school system. In
Brown v. Board of
Education, 349 U. S. 294
(1955) (
Brown II), the Court first conferred on the
district courts the responsibility to enforce the desegregation of
the schools, if school authorities failed to do so, according to
equitable remedial principles. While we have emphasized the
flexibility of the power of district courts in this process, the
invocation of remedial jurisdiction is not equivalent to having a
school district placed in receivership. It has been implicit in all
of our decisions from
Brown II to
Swann that, if
local authorities devise a plan that will effectively eliminate
segregation in the schools, a district court must accept such a
plan unless there are strong reasons why a different plan is to be
preferred. A local school board plan that will eliminate dual
schools, stop discrimination, and improve the quality of education
ought not be cast aside because a judge can evolve some other plan
that accomplishes the same result, or what he considers a
preferable result, with a two percent, four percent, or six percent
difference in racial composition. Such an approach gives
controlling weight to sociological theories, not constitutional
doctrine.
This limitation on the discretion of the district courts
involves more than polite deference to the role of local
Page 407 U. S. 478
governments. Local control is not only vital to continued public
support of the schools, but it is of overriding importance from an
educational standpoint, as well. The success of any school system
depends on a vast range of factors that lie beyond the competence
and power of the courts. Curricular decisions, the structuring of
grade levels, the planning of extracurricular activities, to
mention a few, are matters lying solely within the province of
school officials, who maintain a day-to-day supervision that a
judge cannot. A plan devised by school officials is apt to be
attuned to these highly relevant educational goals; a plan deemed
preferable in the abstract by a judge might well overlook and thus
undermine these primary concerns.
The discretion of a district court is further limited where, as
here, it deals with totally separate political entities. This is a
very different case from one where a school board proposes
attendance zones within a single school district, or even one where
a school district is newly formed within a county unit. Under
Virginia law, Emporia is as independent from Greensville County as
one State is from another.
See City of Richmond v. County
Board, 199 Va. 679, 684, 101 S.E.2d 641, 644 (1958);
Murray v. City of Roanoke, 192 Va. 321, 324, 64 S.E.2d
804, 807 (1951). This may be an anomaly in municipal jurisprudence,
but it is Virginia's anomaly; it is of ancient origin, and it is
not forbidden by the Constitution. To bar the city of Emporia from
operating its own school system is to strip it of its most
important governmental responsibility, and thus largely to deny its
existence as an independent governmental entity. It is a serious
step, and, absent the factors that persuade me to the contrary in
Scotland Neck, [
Footnote
2/2] decided today, I am unwilling to go that far.
Page 407 U. S. 479
Although the rights and powers of a
bona fide political
entity may not be used as a cloak for evasive action, neither can
those powers be nullified by judicial intervention to achieve a
unitary system in a particular way. When a plan devised by local
authorities crosses the threshold of achieving actual
desegregation, it is not for the district courts to overstep local
prerogatives and insist on some other alternative. Judicial power
ends when a dual school system has ceased to exist.
Since Emporia's operation of a separate school system would not
compromise the goal of eliminating dual schools, there is no basis
for requiring Emporia to demonstrate the necessity of its decision.
The "heavy burden" test referred to in
Green applies only
where there is serious reason to doubt the efficacy of a school
board's plan as a means of achieving desegregation, and there is no
basis for such doubt here. Nonetheless, the Court's treatment of
Emporia's reasons for establishing a separate system merits
comment.
The Court makes light of Emporia's desire to create a
high-quality, unitary school system for the children of its
citizens. In so doing, the Court disregards the following explicit
finding of the District Court:
"The city clearly contemplates a superior quality educational
program. It is anticipated that the cost will be such as to require
higher tax payments by city residents. A kindergarten program,
ungraded primary levels, health services, adult education, and a
low pupil-teacher ratio are included in the plan. . . ."
309 F. Supp. at 674. Furthermore, the Court suggests that, if
Emporia were, in fact, to provide the top-flight educational
program the District Judge anticipated, it could only worsen the
quality of education in the remaining county schools. To be sure,
there was cause for concern over the creative quality of education
offered in the county schools;
Page 407 U. S. 480
as the District Court observed, county officials did "not
embrace the court-ordered unitary plan with enthusiasm." 309 F.
Supp. at 680. The record shows that, prior to the 1969-1970 school
year, per-pupil expenditures in Greensville County lagged behind
the state median, and that the increase in the county school budget
for the 1969-1970 school year was insufficient to keep abreast of
inflation, not to mention increased transportation costs. But the
city of Emporia was in no position to alleviate this problem for
the county. The county had previously refused to allow the city to
participate in joint administration of the schools, and the city
had absolutely no power to affect the level of funding for the
county schools. Under the contract, Emporia was the purchaser of
whatever educational services the county had to offer. Out of
understandable concern for the quality of these services, it sought
to alter the contractual arrangement in order to provide better
unitary schools.
There is no basis on this record for assuming that the quality
of education in the county schools was likely to suffer further due
to Emporia's withdrawal. The Court relies on the District Court's
finding that
"the desire of the city leaders, coupled with their obvious
leadership ability, is and will be an important facet in the
successful operation of any court-ordered plan."
309 F. Supp. at 679. The District Court made this finding
despite the fact that the county had refused to administer the
schools jointly with the city, and despite uncontradicted evidence
that there was no line of communications between the city and
county governments, that the city government had been unable to get
any cooperation from the county government, and that there was an
atmosphere of active antagonism between the two governments. With
all deference to the trier of fact, I cannot accept this finding as
supported by evidence in the record of this ease. It appears that
the District Court wanted
Page 407 U. S. 481
that "obvious leadership ability" of Emporia's citizens to exert
its influence on the more reluctant leadership in the county. This
is a laudable goal in the abstract, but the courts must adjust
their remedies to the facts of each case as they bear on the
central problem of eliminating a dual system.
Although acknowledging Emporia's need to have some "[d]irect
control over decisions vitally affecting the education of [its]
children," the Court states that, since Emporia found the
contractual arrangement tolerable prior to 1969, it should not now
be heard to complain. However, the city did not enter that contract
of its own free choice. From the time Emporia became a city,
consideration was given to the formation of a separate school
system, and it was at least thought necessary that the city
participate in administration of the county school system. After
the county rejected the city's proposal for joint administration,
the county threatened to terminate educational services for city
children unless the city entered an agreement by April 30, 1968.
Only then -- under virtual duress -- did the city submit to the
contractual arrangement. It was not until June, 1969, that the city
was advised by its counsel that the agreement might be illegal.
Steps were then taken to terminate the strained relationship.
Recognizing the tensions inherent in a contractual arrangement
put together under these conditions, the Court indicates that
Emporia might be permitted to operate a separate school system at
some future time. The Court does not explain how the passage of
time will substantially alter the situation that existed at the
time the District Court entered its injunction. If, as the Court
states, desegregation in the county was destined to fail if Emporia
established its own school system in 1969, it is difficult to
understand why it would not be an undue risk to allow separation in
the future.
Page 407 U. S. 482
The more realistic view is that there was never such a danger,
and that the District Court had no cause to disregard Emporia's
desire to free itself from its ties to Greensville County. However,
even on the Court's terms, I assume that Emporia could go back to
the District Court tomorrow and renew its request to operate a
separate system. The county-wide plan has been in effect for the
past three years, and the city should now be relieved of the
court-imposed duty to purchase whatever quality of education the
county sees fit to provide.
Finally, some discussion is warranted of the relevance of
discriminatory purpose in cases such as these. It is, of course,
correct that "[t]he measure of any desegregation plan is its
effectiveness,"
Davis v. Board of School Comm'rs, 402 U.S.
at
402 U. S. 37,
and that a plan that stops short of dismantling a dual school
system cannot be redeemed by benevolent motives. But it is also
true that, even where a dual system has in fact, been dismantled,
as it plainly has been in Emporia, we must still be alert to make
sure that ostensibly nondiscriminatory actions are not designed to
exclude children from schools because of their race. We are well
aware that the progress of school desegregation since 1954 has been
hampered by persistent resistance and evasion in many places. Thus,
the normal judicial reluctance to probe the motives or purposes
underlying official acts must yield to the realities in this very
sensitive area of constitutional adjudication.
Compare Griffin
v. County School Board of Prince Edward County, 377 U.
S. 218 (1964),
with Palmer v. Thompson,
403 U. S. 217
(1971).
There is no basis for concluding, on this record, that Emporia's
decision to operate a separate school system was the manifestation
of a discriminatory purpose. The strongest finding made by the
District Court was that race was, "in a sense," a factor in the
city's decision; read in context, this ambiguous finding does not
relate to any
Page 407 U. S. 483
invidious consideration of race. The District Court relied
solely on the following testimony of the chairman of the city
school board:
"Race, of course, affected the operation of the schools by the
county, and I again say, I do not think, or we felt that the county
was not capable of putting the monies in and the effort and the
leadership into a system that would effectively make a unitary
system work . . . ,"
309 F. Supp. at 680. I cannot view this kind of consideration of
race as discriminatory, or even objectionable. The same doubts
about the county's commitment to the operation of a high-quality
unitary system would have come into play even if the racial
composition of Emporia were precisely the same as that of the
entire county area, including Emporia.
Nor is this a case where we can presume a discriminatory purpose
from an obviously discriminatory effect.
Cf. Gomillion v.
Lightfoot, 364 U. S. 339
(1960). We are not confronted with an awkward gerrymander or
striking shift in racial proportions. The modest difference between
the racial composition of Emporia's proposed separate school system
and that of the county as a whole affords no basis for an inference
of racial motivation. And while it seems that the more cumbersome
features of the District Court's plan hastened the city's
inevitable decision to operate a separate unitary school system,
this was not because of any desire to manipulate the racial balance
of its schools.
Read as a whole, this record suggests that the District Court,
acting before our decision in
Swann, was reaching for some
hypothetical perfection in racial balance, rather than the
elimination of a dual school system. To put it in the simplest
terms, the Court, in adopting the District Court's approach, goes
too far.
[
Footnote 2/1]
The record shows that the pupil-teacher ratio in the county
schools is less than 25 to 1. Assuming some rough correspondence
between this ratio and the size of classes, a 6% racial shift would
represent a change in the racial identity of 1.5 students per
class, on the average.
[
Footnote 2/2]
United States v. Scotland Neck City Board of Education
and
Cotton v. Scotland Neck City Board of Education, post,
p.
407 U. S. 484.