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Busing Background Book (3)
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Busing Background Book (3)
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White House Special Files Unit Files
Issue Decision Papers for the President
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Busing for school integration
Press conferences
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The original documents are located in Box 4, folder "Busing Background Book (3)" of the
White House Special Files Unit Files at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Digitized from Box 4 of the White House Special Files Unit Files at the Gerald R. Ford Presidential Library
E
The following districts are likely to
come under court order in the near future:
Cleveland, Ohio
Cincinnati, Ohio
Columbus, Ohio
Youngstown, Ohio
Kansas City, Kansas
RALD GERALD
F
SUMMARY OF SCHOOL DESEGREGATION DECISIONS
A.
Brown V. Board of Education (1954)
The landmark Supreme Court decision in the school
desegregation area in this century was Brown V.
Board of Education (of Topeka), decided in 1954.
In Brown, the Supreme Court held that segregation
in public schools on the basis of race, even though
the physical facilities and other "tangible" factors
may be equal, denies children of the minority group
the equal protection of the laws in violation of the
Fourteenth Amendment. In the Brown decision, the
Supreme Court did not prescribe any specific method
for accomplishing desegregation.
B.
Brown II (1955)
In a follow-up to its 1954 Brown decision, the Supreme
Court in 1955 directed that desegregation proceed
with "all deliberate speed."
C.
"Freedom of Choice"
In the years immediately following Brown, from 1954
to 1964, the courts wrestled with the issue of
appropriate remedies in cases of de jure segregation,
finally concluding in a number of cases that the
"freedom of choice" method of dismantling dual
school systems was an acceptable approach. Under
freedom of choice, school districts merely gave
students -- black and white -- the choice of the
schools they wished to attend. The result was a
modest degree of desegregation, as some blacks
elected to attend formerly white schools. However,
rarely did whites choose to attend formerly black
schools. The result was that only 1.2 percent of
black students in the 11 southern states attended
schools with whites in 1963-64.
D.
Civil Rights Act of 1964 and Bradley Case
Shortly after passage of the Civil Rights Act of
1964, the Supreme Court stated in Bradley V. School
Board of Richmond (1965) that "delays in desegrega-
ting school systems are no longer tolerable." The
-2-
Civil Rights Act of 1964 provided additional
support for the desegregation process through
Titles IV and VI. Under Title IV, technical
assistance may be given to applicant school
boards in the preparation, adoption, and imple-
mentation of plans for desegregation of public
schools. If efforts to secure a school district's
voluntary desegregation failed, administrative
enforcement proceedings under Title VI would be
initiated.
E. Green Decision (1968)
In April 1968, HEW's Office for Civil Rights
directed that, where freedom of choice plans had
not effectively eliminated dual school systems,
the systems should adopt plans that would accom-
plish this task. During that year, the Supreme
Court strengthened the HEW position in deciding
Green V. New Kent County School Board (Virginia).
In Green, after noting that in many areas desegre-
gation was not yet a reality, the Court said that
the time for mere "deliberate speed" had run out.
The Court held that where a freedom of choice assign-
ment plan failed to effectively desegregate a school
system, the system had to adopt a student assignment
plan which "promised realistically to work now.
This was the death knell since rarely, if ever,
did freedom of choice result in effective school
desegregation.
F. Alexander V. Holmes (1969)
In the summer of 1969, the Court decided Alexander
V. Holmes County Board of Education (Mississippi),
holding that school districts had a constitutional
obligation to dismantle dual school systems "at once"
and to operate now and hereafter as unitary systems.
The Court, quoting from Green, reiterated its deter-
mination that school systems must develop desegrega-
tion plans that "promise realistically to work now."
Thus, Alexander clearly reaffirmed the Court's
position on the issue of timing in desegregation cases.
G. Busing - Swann V. Charlotte-Mecklenburg Board of
Education (1971)
In the spring of 1971, the Supreme Court handed down
the first "busing" decision in the case of Swann V.
-3-
Charlotte-Mecklenburg Board of Education (North
Carolina) In Swann, the Court held that:
1.
desegregation plans could not be limited
to the walk-in neighborhood school;
2.
busing was a permissible tool for desegre-
gation purposes; and,
3.
busing would not be required if it
"endangers the health or safety of children
or significantly impinges on the educa-
tional process.
The Court also held that, while racial balance is
not required by the Constitution, a District Court
has discretion to use racial ratios as a starting
point in shaping a remedy.
H.
HEW Responsibilities to Enforce (1973)
The immediate desegregation mandate of Alexander
and the insistence in Swann that schools having
disproportionately minority enrollment were pre-
sumptively in violation were not acted upon by HEW,
which permitted these districts to remain "under
review. " HEW attempted to secure compliance through
persuasion and negotiation, and the Title VI enforce-
ment mechanism fell into disuse. These conditions
led to the initiation of Adams V. Richardson, in
which HEW was charged with delinquency in desegre-
gating public educational institutions that were
receiving Federal funds.
This suit alleged that HEW had defaulted in the
administration of its responsibilities under Title VI
of the Civil Rights Act of 1964. The district court
(District of Columbia) stated on February 16, 1973,
that, where efforts to secure voluntary compliance
with Title VI failed, the limited discretion of HEW
officials was exhausted. Where negotiation and con-
ciliation did not secure compliance, HEW officials
were obliged to implement the provisions of the
Title VI regulations: provide for a hearing; determine
compliance or noncompliance; and, following a deter-
mination of noncompliance, terminate Federal finan-
cial assistance.
-4-
The district court's decision was modified and
affirmed by the Court of Appeals (D.C. Circuit,
1973) Essentially, the district court order
requires that HEW properly recognize its statutory
obligations, ensuring that the policies it adopts
and implements are consistent with those duties
and not a negation of them.
I.
Keyes - "Segregative Intent" (1973)
In June 1973, the Supreme Court rendered its deci-
sion in Keyes V. School District No. 1 (Denver,
Colorado). This was the Court's first decision on
the merits in a school desegregation case arising
in a State which did not have an official policy
of racial dualism in 1954. In Keyes, the Court
held that where it could be demonstrated that a
school board had acted with "segregative intent"
to maintain or perpetuate a "dual school system"
this was tantamount to de jure segregation in viola-
tion of the Constitution. A finding of de jure
segregation as to one part of the system creates
a presumption that segregative intent existed in
the entire system and in such cases, the school
board had "an affirmative duty to desegregate the
entire system 'root and branch'".
J.
Milliken - Cross District Busing (1974)
In its most recent ruling respecting school desegre-
gation, Milliken V. Bradley (Detroit, Michigan),
the Supreme Court refused to require busing between
school districts absent a showing that there has been
a constitutional violation within one district that
produced a significant segregative effect in another
district.
Following 2 pages are originally part of a single document
MAJOR SCHOOL DESEGREGATION CASES (1954 - 1975)
1954
1955
1956
1957
1958
1959
1960
1961
1962
1963
1964
1965
1966
1967
1968
1969
/
Brown V.
Bd. of Educ.
Brown (II)
Bradley V.
Green V.
Alexander V.
Richmond School
County School
Holmes Coun
Ended
Required that
Board
Board
ENded delibera
"Separate but
schools be
warned that
Ended
speed"
equal"
desegregated
"delays are NO
" "Freedom of
Required de
with " all
longer tolerable
segregation
schools
deliberate speed"
SEATES
Choice "
R at once"
Required adoption
of 'speedier
and more effective"
methods
FREEDOM of CHOICE
MAJOR SCHOOL DESEGREGATION CASES (1954 - 1975)
1960
1961
1962
1963
1964
1965
1966
1967
1968
1969
1970
1971
1972
1973
1974
1975
Bradley V.
Green V.
Alexander V.
Swann V.
Keyes V.
Milliken .
Richmond School
Country School
Holmes County
Charlette-
Denver
Bradley
Board
Board
Ended deliberate
mecklexburg
Refused to
warned that
Ended
speed"
Established
First school
impose an
'delays are NO
" "Freedom of
Required de-
"
desegregation
inter- district
longer tolerable"
segregation
"busing'
choice "
affecting a
remedy
M
at once"
as a perm-
"Northern"
issible tool
Required adoption
for desegregation
city
of "speedier
and more effective"
methods
FREEDOM of CHOICE
G
DECISIONS
BROWN et al. V. BOARD OF EDUCATION OF TOPEKA et al
BROWN et al. V. BOARD OF EDUCATION OF TOPEKA et al (II)
GRIFFIN et al V. COUNTY SCHOOL BOARD OF PRINCE
EDWARD COUNTY et al
GREEN et al V. COUNTY SCHOOL BOARD OF NEW KENT COUNTY et al
RANEY et al V. BOARD OF EDUCATION OF THE GOULD SCHOOL
DISTRICT et al
MONROE et al V. BOARD OF COMMISSIONERS OF THE CITY OF
JACKSON et al
ALEXANDER et al V. HOLMES COUNTY BOARD OF EDUCATION et al
SWANN et al V. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION et al
KEYES et al V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO et al
MILLIKEN et al V. BRADLEY et al
294
OCTOBER TERM, 1954.
Syllabus.
349 U.S.
BROWN ET AL. v. BOARD OF EDUCATION
OF TOPEKA ET AL.
NO 1. APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS.
Reargued on the question of relief April 11-14, 1955.-Opinion and
judgments announced May 31, 1955.
1. Racial discrimination in public education is unconstitutional, 347
U. S. 483, 497, and all provisions of federal, state or local law
requiring or permitting such discrimination must yield to this
principle. P. 298.
2. The judgments below (except that in the Delaware case) are re-
versed and the cases are remanded to the District Courts to take
such proceedings and enter such orders and decrees consistent with
this opinion as are necessary and proper to admit the parties to
these cases to public schools on a racially nondiscriminatory basis
with all deliberate speed. P. 301.
(a) School authorities have the primary responsibility for eluci-
dating, assessing and solving the varied local school problems which
may require solution in fully implementing the governing consti-
tutional principles. P. 299.
(b) Courts will have to consider whether the action of school
authorities constitutes good faith implementation of the governing
constitutional principles. P. 299.
(c) Because of their proximity to local conditions and the pos-
sible need for further hearings, the courts which originally heard
these cases can best perform this judicial appraisal. P. 299.
(d) In fashioning and effectuating the decrees, the courts will
be guided by equitable principles-characterized by a practical
flexibility in shaping remedies and a facility for adjusting and
reconciling public and private needs. P. 300.
*Together with No. 2, Briggs et al. V. Elliott et al., on appeal from
the United States District Court for the Eastern District of South
Carolina; No. 3, Davis et al. v. County School Board of Prince Edward
County, Virginia, et al., on appeal from the United States District
Court for the Eastern District of Virginia; No. 4, Bolling et al. V.
Sharpe et al., on certiorari to the United States Court of Appeals for
the District of Columbia Circuit; and No. 5, Gebhart et al. V. Belton
et al.. on certiorari to the Supreme Court of Delaware.
BROWN v. BOARD OF EDUCATION.
295
9 U.S.
294
Syllabus.
(e) At stake is the personal interest of the plaintiffs in admission
to public schools as soon as practicable on a nondiscriminatory
basis. P. 300.
(f) Courts of equity may properly take into account the public
OURT
interest in the elimination in a systematic and effective manner
of a variety of obstacles in making the transition to school systems
operated in accordance with the constitutional principles enunci-
n and
ated in 347 U.S. 483, 497; but the vitality of these constitutional
principles cannot be allowed to yield simply because of disagree-
ment with them. P. 300.
1, 347
al law
(g) While giving weight to these public and private considera-
0 this
tions, the courts will require that the defendants make a prompt
and reasonable start toward full compliance with the ruling of this
Court. P. 300.
re re-
) take
(h) Once such a start has been made, the courts may find that
t with
additional time is necessary to carry out the ruling in an effective
ies to
manner. P. 300.
basis
(i) The burden rests on the defendants to establish that addi-
tional time is necessary in the public interest and is consistent
elu
with good faith compliance at the earliest practicable date. P. 300.
which
(j) The courts may consider problems related to administration,
onsti-
arising from the physical condition of the school plant, the school
transportation system, personnel, revision of school districts and
school
attendance areas into compact units to achieve a system of deter-
erning
mining admission to the public schools on a nonracial basis, and
revision of local laws and regulations which may be necessary in
pos-
solving the foregoing problems. Pp. 300-301.
heard
(k) The courts will also consider the adequacy of any plans
the defendants may propose to meet these problems and to effectu-
S will
ate a transition to a racially nondiscriminatory school system.
ctical
P. 301.
and
(1) During the period of transition, the courts will retain juris-
diction of these cases. P. 301.
3. The judgment in the Delaware case, ordering the immediate admis-
from
sion of the plaintiffs to schools previously attended only by white
South
children, is affirmed on the basis of the principles stated by this
lward
Court in its opinion, 347 U. S. 483; but the case is remanded to
strict
the Supreme Court of Delaware for such further proceedings as
al. V.
that Court may deem necessary in the light of this opinion. P. 301.
Is for
98 F. Supp. 797, 103 F. Supp. 920, 103 F. Supp. 337 and judgment
Belton
in No. 4, reversed and remanded.
91 A. 2d 137, affirmed and remanded.
296
OCTOBER TERM, 1954.
Counsel for Parties.
349 U.S.
Robert L. Carter argued the cause for appellants in
No. 1. Spottswood W. Robinson, III, argued the causes
for appellants in Nos. 2 and 3. George E. C. Hayes and
James M. Nabrit, Jr. argued the cause for petitioners in
No. 4. Louis L. Redding argued the cause for respond-
ents in No. 5. Thurgood Marshall argued the causes for
appellants in Nos. 1, 2 and 3, petitioners in No. 4 and
respondents in No. 5.
On the briefs were Harold Boulware, Robert L. Carter,
Jack Greenberg, Oliver W. Hill, Thurgood Marshall, Louis
L. Redding, Spottswood W. Robinson, III, Charles S.
Scott, William T. Coleman, Jr., Charles T. Duncan,
George E. C. Hayes, Loren Miller, William R. Ming, Jr.,
Constance Baker Motley, James M. Nabrit, Jr., Louis H.
Pollak and Frank D. Reeves for appellants in Nos. 1, 2
and 3, and respondents in No: 5; and George E. C. Hayes,
James M. Nabrit, Jr., George M. Johnson, Charles W.
Quick, Herbert O. Reid, Thurgood Marshall and Robert
L. Carter for petitioners in No. 4.
Harold R. Fatzer, Attorney General of Kansas, argued
the cause for appellees in No. 1. With him on the brief
was Paul E. Wilson, Assistant Attorney General. Peter
F. Caldwell filed a brief for the Board of Education of
Topeka, Kansas, appellee.
S.E. Rogers and Robert McC. Figg, Jr. argued the cause
and filed a brief for appellees in No. 2.
J. Lindsay Almond, Jr., Attorney General of Virginia,
and Archibald G. Robertson argued the cause for appellees
in No. 3. With them on the brief were Henry T. Wick-
ham, Special Assistant to the Attorney General, T. Justin
Moore, John W. Riely and T. Justin Moore, Jr.
Milton D. Korman argued the cause for respondents in
No. 4. With him on the brief were Vernon E. West,
Chester H. Gray and Lyman J. Umstead.
BROWN v. BOARD OF EDUCATION.
297
294
Counsel for Parties.
Joseph Donald Craven, Attorney General of Delaware,
argued the cause for petitioners in No. 5. On the brief
were H. Albert Young, then Attorney General, Clarence
W. Taylor, Deputy Attorney General, and Andrew D.
Christie, Special Deputy to the Attorney General.
In response to the Court's invitation, 347 U.S. 483, 495-
496, Solicitor General Sobeloff participated in the oral
argument for the United States. With him on the brief
were Attorney General Brownell, Assistant Attorney Gen-
eral Rankin, Philip Elman, Ralph S. Spritzer and Alan S.
Rosenthal.
By invitation of the Court, 347 U. S. 483, 496, the
following State officials presented their views orally as
amici curiae: Thomas J. Gentry, Attorney General of
Arkansas, with whom on the brief were James L. Sloan,
Assistant Attorney General, and Richard B. McCulloch,
Special Assistant Attorney General. Richard W. Ervin,
Attorney General of Florida, and Ralph E. Odum, Assist-
ant Attorney General, both of whom were also on a brief.
C. Ferdinand Sybert, Attorney General of Maryland, with
whom on the brief were Edward D. E. Rollins, then At-
torney General, W. Giles Parker, Assistant Attorney
General, and James H. Norris, Jr., Special Assistant At-
torney General. I. Beverly Lake, Assistant Attorney
General of North Carolina, with whom on the brief were
Harry McMullan, Attorney General, and T. Wade Bruton,
Ralph Moody and Claude L. Love, Assistant Attorneys
General. Mac Q. Williamson, Attorney General of Okla-
homa. who also filed a brief. John Ben Shepperd, Attor-
ney General of Texas, and Burnell Waldrep, Assistant
Attorney General. with whom on the brief were Billy E.
Lee, J. A. Amis, Jr., L. P. Lollar, J. Fred Jones, John
Davenport, John Reeves and Will Davis.
Phineas Indritz filed a brief for the American Veterans
Committee, Inc., as amicus curiae.
298
OCTOBER TERM, 1954.
Opinion of the Court.
349 U.S.
MR. CHIEF JUSTICE WARREN delivered the opinion of
the Court.
These cases were decided on May 17, 1954. The opin-
ions of that date,¹ declaring the fundamental principle
that racial discrimination in public education is uncon-
stitutional, are incorporated herein by reference. All
provisions of federal, state, or local law requiring or per-
mitting such discrimination must yield to this principle.
There remains for consideration the manner in which
relief is to be accorded.
Because these cases arose under different local condi-
tions and their disposition will involve a variety of local
problems, we requested further argument on the question
of relief.2 In view of the nationwide importance of the
decision, we invited the Attorney General of the United
1 347 U.S. 483; 347 U. S. 497.
2 Further argument was requested on the following questions, 347
U. S. 483, 495-496, n. 13, previously propounded by the Court:
"4. Assuming it is decided that segregation in public schools vio-
lates the Fourteenth Amendment
"(a) would a decree necessarily follow providing that, within the
limits set by normal geographic school districting, Negro children
should forthwith be admitted to schools of their choice, or
"(b) may this Court, in the exercise of its equity powers, permit
an effective gradual adjustment to be brought about from existing
segregated systems to a system not based on color distinctions?
"5. On the assumption on which questions 4 (a) and (b) are based,
and assuming further that this Court will exercise its equity powers to
the end described in question 4 (b),
(a) should this Court formulate detailed decrees in these cases;
(b) if so, what specific issues should the decrees reach;
(c) should this Court appoint a special master to hear evidence
with a view to recommending specific terms for such decrees;
'(d) should this Court remand to the courts of first instance with
directions to frame decrees in these cases, and if so what general
directions should the decrees of this Court include and what pro-
cedures should the courts of first instance follow in arriving at the
specific terms of more detailed decrees?"
BROWN v. BOARD OF EDUCATION.
299
294
Opinion of the Court.
States and the Attorneys General of all states requiring
or permitting racial discrimination in public education to
present their views on that question. The parties, the
United States, and the States of Florida, North Carolina,
Arkansas, Oklahoma, Maryland, and Texas filed briefs
and participated in the oral argument.
These presentations were informative and helpful to
the Court in its consideration of the complexities arising
from the transition to a system of public education freed
of racial discrimination. The presentations also demon-
strated that substantial steps to eliminate racial discrim-
ination in public schools have already been taken, not
only in some of the communities in which these cases
arose, but in some of the states appearing as amici curiae,
and in other states as well. Substantial progress has been
made in the District of Columbia and in the communities
in Kansas and Delaware involved in this litigation. The
defendants in the cases coming to us from South Carolina
and Virginia are awaiting the decision of this Court
concerning relief.
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 authori-
ties constitutes good faith implementation of the govern-
ing constitutional principles. Because of their proximity
to local conditions and the possible need for further hear-
ings, the courts which originally heard these cases can
best perform this judicial appraisal. Accordingly, we
believe it appropriate to remand the cases to those courts.3
3 The cases coming to us from Kansas, South Carolina, and Virginia
were originally heard by three-judge District Courts convened under
28 U. S. C. §§ 2281 and 2284. These cases will accordingly be re-
manded to those three-judge courts. See Briggs V. Elliott, 342 U.S.
350.
300
OCTOBER TERM, 1954.
Opinion of the Court.
349 U.S.
In fashioning and effectuating the decrees, the courts
will be guided by equitable principles. Traditionally,
equity has been characterized by a practical flexibility in
shaping its remedies and by a facility for adjusting and
reconciling public and private needs.5 These cases call
for the exercise of these traditional attributes of equity
power. At stake is the personal interest of the plaintiffs
in admission to public schools as soon as practicable on a
nondiscriminatory basis. To effectuate this interest may
call for elimination of a variety of obstacles in making the
transition to school systems operated in accordance with
the constitutional principles set forth in our May 17,
1954, decision. Courts of equity may properly take into
account the public interest in the elimination of such
obstacles in a systematic and effective manner. But it
should go without saying that the vitality of these con-
stitutional principles cannot be allowed to yield simply
because of disagreement with them.
While giving weight to these public and private con-
siderations, the courts will require that the defendants
make a prompt and reasonable start toward full compli-
ance with our May 17, 1954, ruling. Once such a start
has been made, the courts may find that additional time
is necessary to carry out the ruling in an effective manner.
The burden rests upon the defendants to establish that
such time is necessary in the public interest and is
consistent with good faith compliance at the earliest
practicable date. To that end, the courts may consider
problems related to administration, arising from the
physical condition of the school plant, the school trans-
portation system, personnel, revision of school districts
and attendance areas into compact units to achieve a
system of determining admission to the public schools
4 See Alexander V. Hillman, 296 U. S. 222, 239.
5 See Hecht Co. V. Bowles, 321 U. S. 321, 329-330.
BROWN v. BOARD OF EDUCATION.
301
294
Opinion of the Court.
on a nonracial basis, and revision of local laws and
regulations which may be necessary in solving the fore-
going problems. They will also consider the adequacy
of any plans the defendants may propose to meet these
problems and to effectuate a transition to a racially
nondiscriminatory school system. During this period
of transition, the courts will retain jurisdiction of these
cases.
The judgments below, except that in the Delaware case,
are accordingly reversed and the cases are remanded to
the District Courts to take such proceedings and enter
such orders and decrees consistent with this opinion as are
necessary and proper to admit to public schools on a
racially nondiscriminatory basis with all deliberate speed
the parties to these cases. The judgment in the Delaware
case-ordering the immediate admission of the plaintiffs
to schools previously attended only by white children-is
affirmed on the basis of the principles stated in our May
17, 1954, opinion, but the case is remanded to the Supreme
Court of Delaware for such further proceedings as that
Court may deem necessary in light of this opinion.
It is so ordered.
218
OCTOBER TERM, 1963.
Syllabus.
377 U.S.
GRIFFIN ET AL. v. COUNTY SCHOOL BOARD OF
PRINCE EDWARD COUNTY ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FOURTH CIRCUIT.
No. 592. Argued March 30, 1964.-
Decided May 25, 1964.
This litigation began in 1951 and resulted in this Court's holding in
Brown V. Board of Education, 347 U. S. 483 (1954), that Virginia
school segregation laws denied the equal protection of the laws
and, after reargument on the question of relief, the remand to the
District Court a year later for entry of an order that the Negro
complainants in Prince Edward County be admitted to public
schools on a racially nondiscriminatory basis "with all deliberate
speed." Faced with an order to desegregate, the County Board
of Supervisors in 1959 refused to appropriate funds for the opera-
tion of public schools although a private foundation operated
schools for white children only, who in 1960 became eligible for
county and state tuition grants. Public schools continued to oper-
ate elsewhere in Virginia. After protracted litigation in the federal
and state courts, the District Court in 1961 enjoined the County
from paying tuition grants or giving tax credits as long as the
public schools remained closed and thereafter, refusing to abstain
pending proceedings in the state courts, held that the public
schools could not remain closed to avoid this Court's decision while
other public schools in the State remained open. The Court of
Appeals reversed, holding that the District Court should have
awaited state court determination of these issues. Held:
1. Though the amended supplemental complaint added new
parties and relied on developments occurring after the action had
begun, it did not present a new cause of action but constituted a
proper amendment under Rule 15 (d) of the Federal Rules of
Civil Procedure, since the new transactions were alleged to be part
of persistent and continuing efforts to circumvent this Court's
holdings. Pp. 226-227.
2. Since the supplemental complaint alleged a discriminatory
system unique to one county, although involving some actions of
the State, adjudication by a three-judge court was not required
under 28 U.S. C. § 2281. Pp. 227-228.
GRIFFIN v. SCHOOL BOARD.
219
218
Syllabus.
3. This action is not forbidden by the Eleventh Amendment to
the Constitution since it charges that state and county officials
deprived petitioners of their constitutional rights. Ex parte
Young, 209 U.S. 123 (1908), followed. P. 228.
4. Because of the long delay resulting from state and county
resistance to enforcing the constitutional rights here involved and
because the highest state court has now passed on all the state
law issues here, federal court abstention pending state judicial reso-
lution of the legality of respondents' conduct under the constitu-
tion and laws of Virginia is not required or appropriate in this
case. Pp. 228-229.
5. Under the circumstances of this case, closing of the Prince
Edward County public schools while at the same time giving
tuition grants and tax concessions to assist white children in pri-
vate segregated schools denied petitioners the equal protection of
the laws guaranteed by the Fourteenth Amendment. Pp. 229-232.
(a) Prince Edward County school children are treated dif-
ferently from those of other counties since they must go to private
schools or none at all. P. 230.
(b) The public schools of Prince Edward County were closed
and the private schools operated in their place only for constitu-
tionally impermissible reasons of race. Pp. 231-232.
6. Quick and effective injunctive relief should be granted against
the respondents, all of whom have duties relating to financing,
supervising, or operating the Prince Edward County schools. Pp.
232-234.
(a) The injunction against county officials paying tuition
grants and giving tax credits while public schools remained closed
is appropriate and necessary where the grants and credits have
been part of the county program to deprive petitioners of a public
education enjoyed by children in other counties. P. 233.
(b) The District Court may require the County Supervisors
to levy taxes to raise funds for the nonracial operation of the
county school system as is the case with other counties. P. 233.
(c) The District Court may if necessary issue an order to
carry out its ruling that the Prince Edward County public schools
may not be closed to avoid the law of the land while the State
permits other public schools to remain open at the expense of the
taxpayers. Pp. 233-234.
(d) New parties may be added if necessary to effectuate the
District Court's decree. P. 234.
322 F. 2d 332, reversed.
220
OCTOBER TERM, 1963.
Opinion of the Court.
377 U.S.
Robert L. Carter argued the cause for petitioners.
With him on the brief were S. W. Tucker and Frank D.
Reeves.
R. D. McIlwaine III, Assistant Attorney General of
Virginia, and J. Segar Gravatt argued the cause for
respondents. With Mr. McIlwaine on the brief for the
State Board of Education of Virginia et al. were Robert
Y. Button, Attorney General of Virginia, and Frederick T.
Gray. With Mr. Gravatt on the brief for the Board of
Supervisors of Prince Edward County was William F.
Watkins, Jr. John F. Kay, Jr. and C. F. Hicks filed a
brief for respondents County School Board of Prince
Edward County et al.
Solicitor General Cox, by special leave of Court, argued
the cause for the United States, as amicus curiae, urging
reversal. With him on the brief were Assistant Attorney
General Marshall, William J. Vanden Heuvel, Louis F.
Claiborne and Harold H. Greene.
Briefs of amici curiae, urging reversal, were filed by
William B. Beebe and Hershel Shanks for the National
Education Association, and by Landon Gerald Dowdey,
T. Raber Taylor and C. Joseph Danahy for Citizens for
Educational Freedom.
Brief of amicus curiae, urging affirmance, was filed
by Geo. Stephen Leonard, Paul D. Summers, Jr., D. B.
Marshall and Richard L. Hirshberg for the City of
Charlottesville.
MR. JUSTICE BLACK delivered the opinion of the Court.
This litigation began in 1951 when a group of Negro
school children living in Prince Edward County, Virginia,
filed a complaint in the United States District Court for
the Eastern District of Virginia alleging that they had
been denied admission to public schools attended by white
children and charging that Virginia laws requiring such
school segregation denied complainants the equal protect
GERALD
GRIFFIN v. SCHOOL BOARD.
221
218
Opinion of the Court.
tion of the laws in violation of the Fourteenth Amend-
ment. On May 17, 1954, ten years ago, we held that the
Virginia segregation laws did deny equal protection.
Brown V. Board of Education, 347 U.S. 483 (1954). On
May 31, 1955, after reargument on the nature of relief, we
remanded this case, along with others heard with it, to the
District Courts to enter such orders as "necessary and
proper to admit [complainants] to public schools on
a racially nondiscriminatory basis with all deliberate
speed
" Brown V. Board of Education, 349 U. S.
294, 301 (1955).
Efforts to desegregate Prince Edward County's schools
met with resistance. In 1956 Section 141 of the Virginia
Constitution was amended to authorize the General As-
sembly and local governing bodies to appropriate funds
to assist students to go to public or to nonsectarian private
schools, in addition to those owned by the State or by the
locality.¹ The General Assembly met in special session
and enacted legislation to close any public schools where
white and colored children were enrolled together, to cut
off state funds to such schools, to pay tuition grants to
children in nonsectarian private schools, and to extend
state retirement benefits to teachers in newly created pri-
vate schools.² The legislation closing mixed schools and
cutting off state funds was later invalidated by the
Supreme Court of Appeals of Virginia, which held that
these laws violated the Virginia Constitution. Harrison
V. Day, 200 Va. 439, 106 S. E. 2d 636 (1959). In April
1959 the General Assembly abandoned "massive resist-
ance" to desegregation and turned instead to what was
1 Virginia tuition grants originated in 1930 as aid to children who
had lost their fathers in World War I. The program was expanded
until the Supreme Court of Appeals of Virginia held that giving
grants to children attending private schools violated the Virginia
Constitution. Almond V. Day, 197 Va. 419, 89 S. E. 2d 851 (1955).
It was then that Section 141 was amended.
2 Va. Code, § 22-188.3 et seq.; § 51-111.38:1.
222
OCTOBER TERM, 1963.
Opinion of the Court.
377 U.S.
called a "freedom of choice" program. The Assembly
repealed the rest of the 1956 legislation, as well as a
tuition grant law of January 1959, and enacted a new
tuition grant program.³ At the same time the Assembly
repealed Virginia's compulsory attendance laws 4 and
instead made school attendance a matter of local option.5
In June 1959, the United States Court of Appeals for
the Fourth Circuit directed the Federal District Court
(1) to enjoin discriminatory practices in Prince Edward
County schools, (2) to require the County School Board
to take "immediate steps" toward admitting students
without regard to race to the white high school "in the
school term beginning September 1959," and (3) to re-
quire the Board to make plans for admissions to ele-
mentary schools without regard to race. Allen V. County
School Board of Prince Edward County, 266 F. 2d 507,
511 (C. A. 4th Cir. 1959). Having as early as 1956
resolved that they would not operate public schools
"wherein white and colored children are taught together,"
the Supervisors of Prince Edward County refused to levy
any school taxes for the 1959-1960 school year, explain-
ing that they were "confronted with a court decree which
requires the admission of white and colored children to
all the schools of the county without regard to race or
color." As a result, the county's public schools did not
3 Acts, 1959 Ex. Sess., C. 53.
4 Va. Code, §§ 22-251 to 22-275.
5 Va. Code, §§ 22-275.1 to 22-275.25.
6 The Board's public explanation of its June 3, 1959, refusal to
appropriate money or levy taxes to carry on the county's public
school system was:
"The School Board of this county is confronted with a court decree
which requires the admission of white and colored children to all the
schools of the county without regard to race or color. Knowing the
people of this county as we do, we know that it is not possible to
operate the schools of this county within the terms of that principle
and, at the same time, maintain an atmosphere conducive to the
educational benefit of our people."
GRIFFIN v. SCHOOL BOARD.
223
218
Opinion of the Court.
reopen in the fall of 1959 and have remained closed ever
since, although the public schools of every other county
in Virginia have continued to operate under laws govern-
ing the State's public school system and to draw funds
provided by the State for that purpose. A private group,
the Prince Edward School Foundation, was formed to
operate private schools for white children in Prince Ed-
ward County and, having built its own school plant, has
been in operation ever since the closing of the public
schools. An offer to set up private schools for colored
children in the county was rejected, the Negroes of Prince
Edward preferring to continue the legal battle for deseg-
regated public schools, and colored children were without
formal education from 1959 to 1963, when federal, state,
and county authorities cooperated to have classes con-.
ducted for Negroes and whites in school buildings owned
by the county. During the 1959-1960 school year the
Foundation's schools for white children were supported
entirely by private contributions, but in 1960 the General
Assembly adopted a new tuition grant program making
every child, regardless of race, eligible for tuition grants
of $125 or $150 to attend a nonsectarian private school
or a public school outside his locality, and also authoriz-
ing localities to provide their own grants.⁷ The Prince
Edward Board of Supervisors then passed an ordinance
providing tuition grants of $100, SO that each child at-
tending the Prince Edward School Foundation's schools
received a total of $225 if in elementary school or $250 if
in high school. In the 1960-1961 session the major
source of financial support for the Foundation was in the
indirect form of these state and county tuition grants,
paid to children attending Foundation schools. At the
same time, the County Board of Supervisors passed an
ordinance allowing property tax credits up to 25% for
7 Va. Code, §§ 22-115.29 to 22-115.35.
729-256 O-65-19
224
OCTOBER TERM, 1963.
Opinion of the Court.
377 U.S.
contributions to any "nonprofit, nonsectarian private
school" in the county.
In 1961 petitioners here filed a supplemental complaint,
adding new parties and seeking to enjoin the respondents
from refusing to operate an efficient system of public free
schools in Prince Edward County and to enjoin payment
of public funds to help support private schools which ex-
cluded students on account of race. The District Court,
finding that "the end result of every action taken by that
body [Board of Supervisors] was designed to preserve
separation of the races in the schools of Prince Edward
County," enjoined the county from paying tuition grants
or giving tax credits SO long as public schools remained
closed.8 Allen V. County School Board of Prince Edward
County, 198 F. Supp. 497, 503 (D. C. E. D. Va. 1961).
At this time the District Court did not pass on whether
the public schools of the county could be closed but ab-
stained pending determination by the Virginia courts of
whether the constitution and laws of Virginia required
the public schools to be kept open. Later, however,
without waiting for the Virginia courts to decide the
question,9 the District Court held that "the public schools
of Prince Edward County may not be closed to avoid the
effect of the law of the land as interpreted by the Supreme
Court, while the Commonwealth of Virginia permits other
public schools to remain open at the expense of the tax-
payers." Allen V. County School Board of Prince Ed-
8 On the question of the validity of state tuition grants, the court
held that, as a matter of state law, such grants were not meant to be
given in localities without public schools; therefore, the court en-
joined the county from processing applications for state grants SO
long as public schools remained closed. 198 F. Supp., at 504.
9 The Supreme Court of Appeals of Virginia had, in a mandamus
proceeding instituted by petitioners, held that the State Constitu-
tion and statutes did not impose upon the County Board of Super-
visors any mandatory duty to levy taxes and appropriate money to
support free public schools. Griffin V. Board of Supervisors of
Prince Edward County, 203 Va. 321, 124 S. E. 2d 227 (1962).
GRIFFIN v. SCHOOL BOARD.
225
218
Opinion of the Court.
ward County, 207 F. Supp. 349, 355 (D. C. E. D. Va.
1962). Soon thereafter, a declaratory judgment suit was
brought by the County Board of Supervisors and the
County School Board in a Virginia Circuit Court. Hav-
ing done this, these parties asked the Federal Distriet
Court to abstain from further proceedings until the suit
in the state courts had run its course, but the District
Court declined; it repeated its order that Prince Edward's
public schools might not be closed to avoid desegregation
while the other public schools in Virginia remained open.
The Court of Appeals reversed, Judge Bell dissenting,
holding that the District Court should have abstained to
await state court determination of the validity of the tui-
tion grants and the tax credits, as well as the validity of
the closing of the public schools. Griffin V. Board of
Supervisors of Prince Edward County, 322 F. 2d 332
(C. A. 4th Cir. 1963). We granted certiorari, stating: 10
"In view of the long delay in the case since our deci-
sion in the Brown case and the importance of the
questions presented, we grant certiorari and put the
case down for argument March 30, 1964, on the merits,
as we have done in other comparable situations with-
out waiting for final action by the Court of Appeals."
375 U.S. 391, 392.
For reasons to be stated, we agree with the District Court
that, under the circumstances here, closing the Prince
Edward County schools while public schools in all the
other counties of Virginia were being maintained denied
the petitioners and the class of Negro students they
represent the equal protection of the laws guaranteed by
the Fourteenth Amendment.
10 In the meantime, the Supreme Court of Appeals of Virginia had
held that the Virginia Constitution did not compel the State to reopen
public schools in Prince Edward County. County School Board of
Prince Edward County V. Griffin, 204 Va. 650, 133 S. E. 2d 565
(1963).
226
OCTOBER TERM, 1963.
Opinion of the Court.
377 U.S.
I.
Before reaching the substantial questions presented, we
shall note several procedural matters urged by respond-
ents in a motion to dismiss the supplemental amended
complaint filed July 7, 1961-ten years after this action
was instituted. Had the motion to dismiss been granted
on any of the grounds assigned, the result would have
been one more of what Judge Bell, dissenting in the Court
of Appeals, referred to as "the inordinate delays which
have already occurred in this protracted litigation
322 F. 2d, at 344. We shall take up separately the
grounds assigned for dismissal.
(a) It is contended that the amended supplemental
complaint presented a new and different cause of action
from that presented in the original complaint. The sup-
plemental pleading did add new parties and rely in good
part on transactions, occurrences, and events which had
happened since the action had begun. But these new
transactions were alleged to have occurred as a part of
continued, persistent efforts to circumvent our 1955 hold-
ing that Prince Edward County could not continue to
operate, maintain, and support a system of schools in
which students were segregated on a racial basis. The
original complaint had challenged racial segregation in
schools which were admittedly public. The new com-
plaint charged that Prince Edward County was still using
its funds, along with state funds, to assist private schools
while at the same time closing down the county's public
schools, all to avoid the desegregation ordered in the
Brown cases. The amended complaint thus was not a
new cause of action but merely part of the same old
cause of action arising out of the continued desire of
colored students in Prince Edward County to have the
same opportunity for state-supported education afforded
to white people, a desire thwarted before 1959 by segre-
GRIFFIN v. SCHOOL BOARD.
227
218
Opinion of the Court.
gation in the public schools and after 1959 by a combina-
tion of closed public schools and state-and county grants
to white children at the Foundation's private schools.
Rule 15 (d) of the Federal Rules of Civil Procedure
plainly permits supplemental amendments to cover events
happening after suit,11 and it follows, of course, that per-
sons participating in these new events may be added if
necessary. Such amendments are well within the basic
aim of the rules to make pleadings a means to achieve an
orderly and fair administration of justice.
(b) When this action was originally brought in 1951,
it broadly charged that the constitution and laws of Vir-
ginia provided a state system of public schools which
unconstitutionally segregated school children on the basis
of color. This challenge was heard by a District Court
of three judges as required by 28 U. S. C. § 2281. When
in Brown we held the school segregation laws invalid as
a denial of equal protection of the laws under the Four-
teenth Amendment and remanded for the District Court
to fashion a decree requiring abandonment of segregation
"with all deliberate speed," the three-judge court ceased
to function, and a single district judge took over. Re-
spondents contend that the single judge erroneously
passed on the issues raised by the supplemental com-
plaint and that we should now delay the case still further
by vacating his judgment along with that of the Court
of Appeals and remanding to the District Court for a
completely new trial before three judges. We reject the
contention. In Rorick V. Board of Comm'rs of Ever-
glades Drainage Dist., 307 U.S. 208, 212 (1939), we said,
in interpreting the three-judge statute (then § 266 of the
11 "Upon motion of a party the court may, upon reasonable notice
and upon such terms as are just, permit him to serve a supplemental
pleading setting forth transactions or occurrences or events which
have happened since the date of the pleading sought to be supple-
mented." Fed. Rules Civ. Proc. 15 (d).
228
OCTOBER TERM, 1963.
Opinion of the Court.
377 U.S.
Judicial Code of 1911, as amended, 28 U.S. C. (1934 ed.)
§ 380) :
" 'Despite the generality of the language' of that Sec-
tion, it is now settled doctrine that only a suit in-
volving 'a statute of general application' and not one
affecting a 'particular municipality or district' can
invoke § 266."
While a holding as to the constitutional duty of the
Supervisors and other officials of Prince Edward County
may have repercussions over the State and may require
the District Court's orders to run to parties outside the
county, it is nevertheless true that what is attacked in
this suit is not something which the State has commanded
Prince Edward to do-close its public schools and give
grants to children in private schools-but rather some-
thing which the county with state acquiescence and co-
operation has undertaken to do on its own volition, a
decision not binding on any other county in Virginia.
Even though actions of the State are involved, the case,
as it comes to us, concerns not a state-wide system but
rather a situation unique to Prince Edward County. We
hold that the single district judge did not err in adjudicat-
ing this present controversy.
(c) It is contended that the case is an action against
the State, is forbidden by the Eleventh Amendment, and
therefore should be dismissed. The complaint, however,
charged that state and county officials were depriving peti-
tioners of rights guaranteed by the Fourteenth Amend-
ment. It has been settled law since Ex parte Young,
209 U: S. 123 (1908), that suits against state and county
officials to enjoin them from invading constitutional
rights are not forbidden by the Eleventh Amendment.
(d) It is argued that the District Court should have
abstained from passing on the issues raised here in order
to await a determination by the Supreme Court of Ap-
peals of Virginia as to whether the conduct complained
GRIFFIN v. SCHOOL BOARD.
229
218
Opinion of the Court.
of violated the constitution or laws of Virginia. The
Court of Appeals SO held, 322 F. 2d 332, and this Court
has, in cases deemed appropriate, directed that such a
course be followed by a district court or approved its
having been followed. E. g., Railroad Comm'n of Texas
V. Pullman Co., 312 U.S. 496 (1941); Louisiana Power &
Light Co. V. City of Thibodaux, 360 U.S.25 (1959). But
we agree with the dissenting judge in the Court of Ap-
peals, 322 F. 2d, at 344-345, that this is not a case for
abstention. In the first place, the Supreme Court of
Appeals of Virginia has already passed upon the state law
with respect to all the issues here. County School Board
of Prince Edward County V. Griffin, 204 Va. 650, 133 S. E.
2d 565 (1963). But quite independently of this, we hold
that the issues here imperatively call for decision now.
The case has been delayed since 1951 by resistance at the
state and county level, by legislation, and by lawsuits.
The original plaintiffs have doubtless all passed high
school age. There has been entirely too much deliberation
and not enough speed in enforcing the constitutional
rights which we held in Brown V. Board of Education,
supra, had been denied Prince Edward County Negro
children. We accordingly reverse the Court of Appeals'
judgment remanding the case to the District Court for
abstention, and we proceed to the merits.
II.
In County School Board of Prince Edward County V.
Griffin, 204 Va. 650, 133 S. E. 2d 565 (1963), the Supreme
Court of Appeals of Virginia upheld as valid under state
law the closing of the Prince Edward County public
schools, the state and county tuition grants for children
who attend private schools, and the county's tax con-
cessions for those who make contributions to private
schools. The same opinion also held that each county
had "an option to operate or not to operate public
230
OCTOBER TERM, 1963.
Opinion of the Court.
377 U.S.
schools." 204 Va., at 671, 133 S. E. 2d, at 580. We ac-
cept this case as a definitive and authoritative holding of
Virginia law, binding on us, but we cannot accept the
Virginia court's further holding, based largely on the
Court of Appeals' opinion in this case, 322 F. 2d 332, that
closing the county's public schools under the circum-
stances of the case did not deny the colored school children
of Prince Edward County equal protection of the laws
guaranteed by the Federal Constitution.
Since 1959, all Virginia counties have had the benefits
of public schools but one: Prince Edward. However,
there is no rule that counties, as counties, must be treated
alike; the Equal Protection Clause relates to equal pro-
tection of the laws "between persons as such rather than
between areas." Salsburg V. Maryland, 346 U. S. 545,
551 (1954). Indeed, showing that different persons
are treated differently is not enough, without more, to
show a denial of equal protection. Kotch V. Board of
River Port Pilot Comm'rs, 330 U.S. 552, 556 (1947). It
is the circumstances of each case which govern. Skinner
V. Oklahoma ex rel. Williamson, 316 U. S. 535, 539-540
(1942).
Virginia law, as here applied, unquestionably treats the
school children of Prince Edward differently from the way
it treats the school children of all other Virginia counties.
Prince Edward children must go to a private school or
none at all; all other Virginia children can go to public
schools. Closing Prince Edward's schools bears more
heavily on Negro children in Prince Edward County since
white children there have accredited private schools which
they can attend, while colored children until very recently
have had no available private schools, and even the school
they now attend is a temporary expedient. Apart from
this expedient, the result is that Prince Edward County
school children, if they go to school in their own county,
must go to racially segregated schools which, although
GRIFFIN v. SCHOOL BOARD.
231
218
Opinion of the Court.
designated as private, are beneficiaries of county and state
support.
A State, of course, has a wide discretion in deciding
whether laws shall operate statewide or shall operate only
in certain counties, the legislature "having in mind the
needs and desires of each." Salsburg V. Maryland, supra,
346 U.S., at 552. A State may wish to suggest, as Mary-
land did in Salsburg; that there are reasons why one
county ought not to be treated like another. 346 U.S.,
at 553-554. But the record in the present case could not
be clearer that Prince Edward's public schools were closed
and private schools operated in their place with state and
county assistance, for one reason, and one reason only:
to ensure, through measures taken by the county and the
State, that white and colored children in Prince Edward
County would not, under any circumstances, go to the
same school. Whatever nonracial grounds might sup-
port a State's allowing a county to abandon public schools,
the object must be a constitutional one, and grounds of
race and opposition to desegregation do not qualify as
constitutional.¹²
In Hall V. St. Helena Parish School Board, 197 F. Supp.
649 (D. C. E. D. La. 1961), a three-judge District Court
invalidated a Louisiana statute which provided "a means
by which public schools under desegregation orders may
be changed to 'private' schools operated in the same way,
in the same buildings, with the same furnishings, with the
same money, and under the same supervision as the pub-
lic schools." Id., at 651. In addition, that statute also
provided that where the public schools were "closed," the
school board was "charged with responsibility for furnish-
ing free lunches, transportation, and grants-in-aid to the
12 "But it should go without saying that the vitality of these con-
stitutional principles cannot be allowed to yield simply because of
disagreement with them." Brown V. Board of Education, 349 U. S.
294, 300 (1955).
232
OCTOBER TERM, 1963.
Opinion of the Court.
377 U.S.
children attending the 'private' schools." Ibid. We
affirmed the District Court's judgment invalidating the
Louisiana statute as a denial of equal protection. 368
U.S. 515 (1962). While the Louisiana plan and the Vir-
ginia plan worked in different ways, it is plain that both
were created to accomplish the same thing: the perpetua-
tion of racial segregation by. closing public schools and
operating only segregated schools supported directly or
indirectly by state or county funds. See Cooper V. Aaron,
358 U. S. 1, 17 (1958). Either plan works to deny
colored. students equal protection of the laws. Accord-
ingly, we agree with the District Court that closing
the Prince Edward schools and meanwhile contributing
to the support of the private segregated white schools
that took their place denied petitioners the equal
protection of the laws.
III.
We come now to the question of the kind of decree
necessary and appropriate to put an end to the racial
discrimination practiced against these petitioners under
authority of the Virginia laws. That relief needs to be
quick and effective. The parties defendant are the Board
of Supervisors, School Board, Treasurer, and Division
Superintendent of Schools of Prince Edward County, and
the State Board of Education and the State Superintend-
ent of Education. All of these have duties which relate
directly or indirectly to the financing, supervision, or
operation of the schools in Prince Edward County. The
Board of Supervisors has the special responsibility to levy
local taxes to operate public schools or to aid children
attending the private schools now functioning there for
white children. The District Court enjoined the county
officials from paying county tuition grants or giving tax
exemptions and from processing applications for state
tuition grants SO long as the county's public schools re-
mained closed. We have no doubt of the power of the
GRIFFIN v. SCHOOL BOARD.
233
218
Opinion of the Court.
court to give this relief to enforce the discontinuance of
the county's racially discriminatory practices. It has
long been established that actions. against a county can
be maintained in United States courts in order to vindi-
cate federally guaranteed rights. E. g., Lincoln County
V. Luning, 133 U.S. 529 (1890) ; Kennecott Copper Corp.
V. State Tax Comm'n, 327 U.S. 573, 579 (1946). The in-
junction against paying tuition grants and giving tax
credits while public schools remain closed is appropriate
and necessary since those grants and tax credits 13 have
been essential parts of the county's program, successful
thus far, to deprive petitioners of the same advantages of
a public school education enjoyed by children in every
other part of Virginia. For the same reasons the District
Court may, if necessary to prevent further racial discrimi-
nation, require the Supervisors to exercise the power that
is theirs to levy taxes to raise funds adequate to reopen,
operate, and maintain without racial discrimination a
public school system in Prince Edward County like that
operated in other counties in Virginia.
The District Court held that "the public schools of
Prince Edward County may not be closed to avoid the
effect of the law of the land as interpreted by the Su-
preme Court, while the Commonwealth of Virginia per-
mits other public schools to remain open at the expense
of the taxpayers." Allen V. County School Board of
Prince Edward County, 207 F. Supp. 349, 355 (D. C.
E. D. Va. 1962). At the same time the court gave notice
that it would later consider an order to accomplish this
purpose if the public schools were not reopened by Sep-
tember 7, 1962. That day has long passed, and the
schools are still closed. On remand, therefore, the court
may find it necessary to consider further such an order.
An order of this kind is within the court's power if re-
13 The county has, since the time of the District Court's decree,
repealed its tax credit ordinance.
234
OCTOBER TERM, 1963.
Opinion of the Court.
377 U.S.
quired to assure these petitioners that their constitutional
rights will no longer be denied them. The time for mere
"deliberate speed" has run out, and that phrase can no
longer justify denying these Prince Edward County school
children their constitutional rights to an education equal
to that afforded by the public schools in the other parts
of Virginia.
The judgment of the Court of Appeals is reversed, the
judgment of the District Court is affirmed, and the cause
is remanded to the District Court with directions to enter
a decree which will guarantee that these petitioners will
get the kind of education that is given in the State's
public schools. And, if it becomes necessary to add new
parties to accomplish this end, the District Court is free
to do SO.
It is so ordered.
MR. JUSTICE CLARK and MR. JUSTICE HARLAN disagree
with the holding that the federal courts are empowered to
order the reopening of the public schools in Prince Ed-
ward County, but otherwise join in the Court's opinion.
430
OCTOBER TERM, 1967.
Syllabus.
391 U.S.
GREEN ET AL. v. COUNTY SCHOOL BOARD OF
NEW KENT COUNTY ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FOURTH CIRCUIT.
No. 695. Argued April 3, 1968.-Decided May 27, 1968.
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 segre-
gation. Although this Court held in Brown V. Board of Education,
347 U. S. 483 (Brown I), that Virginia's constitutional and statu-
tory provisions requiring racial segregation in schools were uncon-
stitutional, 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.
GREEN v. COUNTY SCHOOL BOARD. 431
430
Opinion of the Court.
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, "free-
dom 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.
Samuel W. Tucker and Jack Greenberg argued the
cause for petitioners. With them on the brief were
James M. Nabrit III, Henry L. Marsh III, and Michael
Meltsner.
Frederick T. Gray argued the cause for respondents.
With him on the brief were Robert Y. Button, Attorney
General of Virginia, Robert D. McIlwaine III, First As-
sistant Attorney General, and Walter E. Rogers.
Louis F. Claiborne argued the cause for the United
States, as amicus curiae. With him on the brief were
Solicitor General Griswold, Assistant Attorney General
Pollak, Lawrence G. Wallace, and Brian K. Landsberg.
Joseph B. Robison filed a brief for the American Jewish
Congress, as aniicus curiae, urging reversal.
MR. JUSTICE BRENNAN delivered the opinion of the
Court.
The question for decision is whether, under all the cir-
cumstances here, respondent School Board's adoption of
a "freedom-of-choice" plan which allows a pupil to choose
432
OCTOBER TERM, 1967.
Opinion of the Court.
391 U.S.
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 non-
racial 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 main-
tenance of an alleged racially segregated school system.
New Kent County is a rural county in Eastern Virginia.
About one-half of its population of some 4,500 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 constitu-
tional and statutory provisions mandating racial segre-
gation 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
GREEN v. COUNTY SCHOOL BOARD.
433
430
Opinion of the Court.
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 Place-
ment Act, Va.. Code § 22-232.1 et seq. (1964), not re-
pealed 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 applica-
tion 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 Sep-
tember 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
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 New-
port 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 desegre-
gation, included provisions in the Civil Rights Act of 1964 to deal
with the problem through various agencies of the Federal Govern-
ment. 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
434
OCTOBER TERM, 1967.
Opinion of the Court.
391 U.S.
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 as-
signed 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 employ-
ment and assignment of teachers and staff on a racially
nondiscriminatory basis. The amendment was duly filed
and on June 28, 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,ª
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
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 regula-
tions covering racial discrimination in federally aided school systems,
as directed by 42 U. S. C. § 2000d-1, and in a statement of policies,
or "guidelines," the Department's Office of Education established
standards according to which school systems in the process of deseg-
regation can remain qualified for federal funds. 45 CFR §§ 80.1-
80.13, 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 Desegrega-
tion 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.
GREEN v. COUNTY SCHOOL BOARD. 435
430
Opinion of the Court.
"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 Cir-
cuit in United States V. Jefferson County Board of Educa-
tion, 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 certio-
rari, 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 segre-
gation to which Brown I and Brown II were particularly
addressed, and which Brown I declared unconstitution-
ally 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 stu-
dent 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, orga-
nized 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
298-002 o 69 - 31
436
OCTOBER TERM, 1967.
Opinion of the Court.
391 U.S.
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 effec-
tuate 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 revi-
sion of local laws and regulations which may be
necessary in solving the foregoing problems. They
will also consider the adequacy of any plans the
GREEN v. COUNTY SCHOOL BOARD. 437
430
Opinion of the Court.
defendants may propose to meet these problems and
to effectuate a transition to a racially nondiscrim-
inatory 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 inte-
gration," a reading it insists the wording of the Amend-
ment 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 flex-
ibility for a successful resolution. School boards such as
the respondent then operating state-compelled dual sys-
tems were nevertheless clearly charged with the affirma-
tive duty to take whatever steps might be necessary to
438
OCTOBER TERM, 1967.
Opinion of the Court.
391 U.S.
convert to a unitary system in which racial discrimina-
tion 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 reason-
able start." This deliberate perpetuation of the uncon-
stitutional 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 disestab-
lishment 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."
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 discrimina-
tion 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.
GREEN v. COUNTY SCHOOL BOARD.
439
430
Opinion of the Court.
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 prom-
ising 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 re-
quire 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, al-
though that argument has been urged upon us. Rather,
440
OCTOBER TERM, 1967.
Opinion of the Court.
391 U.S.
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 ac-
ceptable, 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, non-
racial 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 States V. Jefferson County Board of
Education, supra. Although the general experience under
"freedom of choice" to date has been such as to indi-
cate 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 deseg-
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 substan-
tial 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 attend-
ing 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
GREEN v. COUNTY SCHOOL BOARD. 441
430
Opinion of the Court.
regation 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 oper-
ation not a single white child has chosen to attend Wat-
kins 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
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 em-
barrassed 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 30-14, 51-52 (U. S. Comm'n on Civil
Rights 1966).
442
OCTOBER TERM, 1967.
Opinion of the Court.
391 U.S.
with a responsibility which Brown II placed squarely on
the School Board. The Board must be required to for-
mulate a new plan and, in light of other courses which
appear open to the Board, such as zorring,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 inso-
far 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.
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, non-racial 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 non-racial geographic zoning. The con-
ditions in this county present a classical case for this expedient."
Bowman V. County School Board, supra, n. 3, at 332 (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 8-12, 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 dis-
trict 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.
FORD
is
i
RANEY v. BOARD OF EDUCATION.
443
Syllabus.
RANEY ET AL. v. BOARD OF EDUCATION OF THE
GOULD SCHOOL DISTRICT ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE EIGHTH CIRCUIT.
No. 805. Argued April 3, 1968.-Decided May 27, 1968.
The Gould (Arkansas) School District, which has a population of
about 60% Negroes, with no residential segregation, maintains
two combination elementary and high schools located about ten
blocks apart in the district's only major town. In the 1964-1965
school year the schools were totally segregated. As in Green V.
County School Board, ante, p. 430, the School Board in 1965
adopted a "freedom-of-choice" plan in order to remain eligible for
federal financial aid. The plan applies to all school grades and
pupils are required to choose annually between the schools; those
not choosing are assigned to the school previously attended. No
white student has sought to enroll in the all-Negro Field Schools
in three years, and although about 85 Negro students were enrolled
in the formerly all-white Gould Schools in 1967, over 85% of the
Negro pupils still attend the all-Negro Field Schools. In the first
year under the plan applications for certain grades at the Gould
Schools exceeded available space and applications of 28 Negroes
were refused. This action was brought on behalf of some of them
for injunctive relief against their being required to attend the
Field Schools, the provision of inferior school facilities for Negroes,
and respondents' "otherwise operating a racially segregated school
system." During the pendency of the case plans were made to
replace the high school building at Field Schools. Petitioners
sought to enjoin that construction, contending that it should be
built at the Gould site to avoid continued segregation. The Dis-
trict Court denied all relief and dismissed the complaint, ruling
that since the "freedom-of-choice" plan was adopted without court
compulsion, the plan was approved by the Department of Health,
Education, and Welfare, and some Negroes had enrolled in the
Gould Schools, the plan was not a pretense or a sham. The
Court of Appeals affirmed the dismissal, suggesting that the issue
of the adequacy of the plan or its implementation was not raised
in the District Court. Since construction of the high school at the
Field site was nearing completion, petitioners modified their posi-
tion and urged the Court of Appeals to require conversion of the
Gould Schools to a desegregated high school and the Field site to a
444
OCTOBER TERM, 1967.
Opinion of the Court.
391 U.S.
desegregated primary school. The Court of Appeals rejected this
proposal since it was not presented to the trial court for con-
sideration. Held:
1. Since the issue of the adequacy of the "freedom-of-choice"
plan was before the District Court in the prayer of the complaint
to enjoin respondents' "otherwise operating a racially segregated
school system," and the District Court and the Court of Appeals
considered the merits of the plan, the question of the adequacy
of "freedom of choice" is properly before this Court. P. 447.
2. As in Green V. County School Board, supra, the school system
remains a dual system and the plan is inadequate to convert it to
a unitary, nonracial system. P. 447.
3. On remand petitioners may present their proposal for con-
verting one school to a desegregated high school and the other
to a desegregated primary school. P. 448.
4. The District Court's dismissal of the complaint was an im-
proper exercise of discretion, and inconsistent with that court's
responsibility under Brown V. Board of Education, 349 U. S. 294,
to retain jurisdiction "to insure (1) that a constitutionally accept-
able plan is adopted, and (2) that it is operated in a constitu-
tionally permissible fashion so that the goal of a desegregated, non-
racially operated school system is rapidly and finally achieved."
Kelley V. Altheimer, 378 F. 2d 483, 489. P. 449.
381 F. 2d 252, reversed and remanded.
Jack Greenberg argued the cause for petitioners. With
him on the brief were James M. Nabrit III and Michael
Meltsner.
Robert V. Light argued the cause for respondents.
With him on the brief was Herschel H. Friday.
Louis F. Claiborne argued the cause for the United
States, as amicus curiae. With him on the brief were
Solicitor General Griswold, Assistant Attorney General
Pollak, Lawrence G. Wallace, and Brian K. Landsberg.
MR. JUSTICE BRENNAN delivered the opinion of the
Court.
This case presents the question of the adequacy of a
"freedom-of-choice" plan as compliance with Brown V.
RANEY v. BOARD OF EDUCATION.
445
443
Opinion of the Court.
Board of Education, 349 U.S. 294 (Brown II), a question
also considered today in No. 695, Green V. County School
Board of New Kent County, ante, p. 430. The factual
setting is very similar to that in Green.
This action was brought in September 1965 in the
District Court for the Eastern District of Arkansas.
Injunctive relief was sought against the continued main-
tenance by respondent Board of Education of an alleged
racially segregated school system. The school district
has an area of 80 square miles and a population of some
3,000, of whom 1,800 are Negroes and 1,200 are whites.
Persons of both races reside throughout the county; there
is no residential segregation. The school system consists
of two combination elementary and high schools located
about 10 blocks apart in Gould, the district's only major
town. One combination, the Gould Schools, is almost all
white and the other, the Field Schools, is all-Negro. In
the 1964-1965 school year the schools were totally segre-
gated; 580 Negro children attended the Field Schools
and 300 white children attended the Gould Schools.
Faculties and staffs were and are segregated. There are
no attendance zones, each school complex providing any
necessary bus transportation for its respective pupils.
The state-imposed segregated system existed at the
time of the decisions in Brown V. Board of Education,
347 U. S. 483, 349 U. S. 294. Thereafter racial separa-
tion was required by School Board policy. As in Green,
respondent first took steps in 1965 to abandon that policy
to remain eligible for federal financial aid. The Board
adopted a "freedom-of-choice" plan embodying the essen-
tials of the plan considered in Green. It was made im-
mediately applicable to all grades. Pupils are required
to choose annually between the Gould Schools and the
Field Schools and those not exercising a choice are
assigned to the school previously attended.
446
OCTOBER TERM, 1967.
Opinion of the Court.
391 U.S.
The experience after three years of operation with
"freedom of choice" has mirrored that in Green. Not a
single white child has sought to enroll in the all-Negro
Field Schools, and although some 80 to 85-Negro children
were enrolled in the Gould Schools in 1967, over 85% of
the Negro children in the system still attend the all-
Negro Field Schools.
This litigation resulted from a problem that arose in
the operation of the plan in its first year. The number of
children applying for enrollment in the fifth, tenth, and
eleventh grades at Gould exceeded the number of places
available and applications of 28 Negroes for those grades
were refused. This action was thereupon filed on behalf
of 16 of these children and others similarly situated.
Their complaint sought injunctive relief, among other
things, against their being required to attend the Field
Schools, against the provision by respondent of public
school facilities for Negro pupils inferior to those provided
for white pupils, and against respondent's "otherwise
operating a racially segregated school system." While
the case was pending in the District Court, respondent
made plans to replace the high school building at Field
Schools. Petitioners sought unsuccessfully to enjoin con-
struction at that site, contending that the new high school
should be built at the Gould site to avoid perpetuation of
the segregated system. Thereafter the District Court, in
an unreported opinion, denied all relief and dismissed the
complaint. In the District Court's view the fact that
respondent had adopted "freedom of choice" without the
compulsion of a court order, that the plan was approved
by the Department of Health, Education, and Welfare,
and that some Negro pupils had enrolled in the Gould
Schools "seems to indicate that this plan is more than
a pretense or sham to meet the minimum requirements
of the law." In light of this conclusion the District
Court held that petitioners were not entitled to the
RANEY v. BOARD OF EDUCATION.
447
443
Opinion of the Court.
other relief requested, including an injunction against
building the new high school at the Field site. The
Court of Appeals for the Eighth Circuit affirmed the
dismissal. 381 F. 2d 252. We granted certiorari, 389
U. S. 1034, and set the case for argument following
No. 740, Monroe V. Board of Commissioners of the City
of Jackson, post, p. 450.
The Court of Appeals suggested that "no issue on the
adequacy of the plan adopted by the Board or its imple-
mentation was raised in the District Court. Issues not
fairly raised in the District Court cannot ordinarily be
considered upon appeal." 381 F. 2d, at 257. Insofar as
this refers to the "freedom-of-choice" plan the suggestion
is refuted by the record. Not only was the issue em-
braced by the prayer in petitioners' complaint for an
injunction against respondent "otherwise operating a
racially segregated school system" but the adequacy of
the plan was tried and argued by the parties and decided
by the District Court. Moreover, the Court of Appeals
went on to consider the merits, holding, in agreement
with the District Court, that "we find no substantial
evidence to support a finding that the Board was not
proceeding to carry out the plan in good faith." Ibid.¹
In the circumstances the question of the adequacy of
"freedom of choice" is properly before us. On the merits,
our decision in Green V. County School Board, supra,
establishes that the plan is inadequate to convert to a
unitary, nonracial school system. As in Green, "the
school. system remains a dual system. Rather than fur-
ther the dismantling of the dual system, the plan has
operated simply to burden children and their parents with
1 Compare the developing views of the feasibility of "freedom-of-
choice" plans expressed by various panels of the Court of Appeals
for the Eighth Circuit in Kemp V. Beasley, 352 F. 2d 14; Clark V.
Board of Education, 374 F. 2d 569; Kelley V. Altheimer, 378 F. 2d
483; Kemp V. Beasley, 389 F. 2d 178; and Jackson V. Marvell School
District No. 22, 389 F. 2d 740.
448
OCTOBER TERM, 1967.
Opinion of the Court.
391 U.S.
a responsibility which Brown II placed squarely on the
School Board. The Board must be required to formu-
late a new plan and, in light of other courses which
appear open to the Board, such as zoning, fashion steps
which promise realistically to convert promptly to a sys-
tem without a 'white' school and a 'Negro' school, but
just schools." Id., at 441-442.
The petitioners did not press in the Court of Appeals
their appeal from the denial of their prayer to have the
new high school facilities constructed at the Gould
Schools site rather than at the Field Schools site. Due
to the illness of the court reporter there was delay in the
filing of the transcript of the proceedings in the District
Court and meanwhile the construction at the Field
Schools site was substantially completed. Petitioners
therefore modified their position and urged in the Court
of Appeals that respondent be required to convert
the Gould Schools to a completely desegregated high
school and the Field site to a completely desegregated pri-
mary school. The Court of Appeals rejected the propo-
sition on the ground that it "was not presented to the
trial court and no opportunity was afforded the parties
to offer evidence on the feasibility of such a plan, nor
was the trial court given any opportunity to pass there-
on." 381 F. 2d, at 254. Since there must be a remand,
petitioners are not foreclosed from making their proposal
an issue in the further proceedings.2
2 The Court of Appeals, while denying petitioners' request for
relief on appeal, did observe that
"there is no showing that the Field facilities with the new construc-
tion added could not be converted at a reasonable cost into a com-
pletely integrated grade school or into a completely integrated high
school when the appropriate time for such course arrives. We note
that the building now occupied by the predominantly white Gould
grade school had originally been built to house the Gould High
School." 381 F. 2d, at 255.
RANEY v. BOARD OF EDUCATION.
449
443
Opinion of the Court.
Finally, we hold that in the circumstances of this
case, the District Court's dismissal of the complaint was
an improper exercise of discretion. Dismissal will ordi-
narily be inconsistent with the responsibility imposed on
the district courts by Brown II. 349 U.S., at 299-301.
In light of the complexities inhering in the disestablish-
ment of state-established segregated school systems,
Brown II contemplated that the better course would be
to retain jurisdiction until it is clear that disestablishment
has been achieved. We agree with the observation of
another panel of judges of the Court of Appeals for the
Eighth Circuit in another case that the district courts
"should retain jurisdiction in school segregation cases to
insure (1) that a constitutionally acceptable plan is
adopted, and (2) that it is operated in a constitutionally
permissible fashion SO that the goal of a desegregated,
non-racially operated school system is rapidly and finally
achieved." Kelley V. Altheimer, 378 F. 2d 483, 489.
See also Kemp V. Beasley, 389 F. 2d 178.
The judgment of the Court of Appeals is reversed
and the case is remanded to the District Court for further
proceedings consistent with this opinion and with our
opinion in Green V. County School Board, supra.
It is so ordered.