407 U.S. 451 - Wright v. Council of City of Emporia

Page 452

pursuing their plan. Holding that the question whether new school
district boundaries should be permitted in areas with a history of
state-enforced racial segregation must be resolved in terms of the
'dominant purpose of (the) boundary realignment,' the Court of
Appeals concluded that Emporia's primary purpose was 'benign' and
not a mere 'cover-up' for racial discrimination, and reversed.
Held:

1. In determining whether realignment of school districts by
officials comports with the requirements of the Fourteenth
Amendment, courts will be guided, not by the motivation of the
officials, but by the effect of their action. Pp. 461—462.

2. In the totality of the circumstances of this case, the
District Court was justified in concluding that Emporia's
establishment of a separate school system would impede the process
of dismantling the segregated school system. Pp. 463—471.

4 Cir. 442 F.2d 570, reversed.

Samuel W. Tucker, Richmond, Va., for petitioners.

D. Dortch Warriner, Emporia, Va., for respondents.

djQ Mr. Justice STEWART delivered the opinion of the Court.

We granted certiorari in this case, as in No. 70—130, United
States v. Scotland Neck City Board of Education,1 407 U.S. 484, 92
S.Ct. 2214, 33 L.Ed.2d 75, to consider the circumstances under

Page 453

which a federal court may enjoin state or local officials from
carving out a new school district from an existing district that
has not yet completed the process of dismantling a system of
enforced racial segregation. We did not address ourselves to this
rather narrow question in Swann v. Charlotte-Mecklenburg Board of
Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554, and its
companion cases decided last Term,2 but the problem has confronted
other federal courts in one form or another on numerous occasions
in recent years.³ Here, as in Scotland Neck, the Court of Appeals
reversed a district court decision enjoining the creation of a new
school district. 4 Cir., 442 F.2d 570. We conclude that the Court
of Appeals erred in its interpretation of the legal principles
applicable in cases such as these, and that the District Court's
order was proper in the circumstances of this case.

I

The City of Emporia lies near the center of Greensville
County, Virginia, a largely rural area located in the North
Carolina border. Until 1967, Emporia was

Page 454

a 'town' under Virginia law, which meant that it was a part of the
surrounding county for practically all purposes, including the
purpose of providing public education for children residing in the
county.

In 1967, Emporia, apparently dissatisfied with the county's
allocation of revenues from the newly enacted state sales tax,
successfully sought designation as a 'city of the second class.'4
As such, it became politically independent from the surrounding
county, and undertook a separate obligation under state law to
provide free public schooling to children residing within its
borders.⁵ To fulfill this responsibility, Emporia at first sought
the county's agreement to continue operating the school system on
virtually the same basis as before, with Emporia sharing in the
administration as well as the financing of the schools.⁶ When the
county officials refused to enter into an arrangement of this
kind, Emporia agreed to a contract whereby the county would
continue to educate students residing in the city in exchange for
Emporia's payment of a specified share of the total cost of the
system. Under this agreement, signed in April 1968, Emporia had a
formal voice in the administration of the schools only through its
par-

Page 455

ticipation in the selection of a superintendent. The city and
county were designated as a single school 'division' by the State
Board of Education,7 and this arrangement was still in effect at
the time of the District Court's order challenged in this case.

This lawsuit began in 1965, when a complaint was filed on
behalf of Negro children seeking an end to state-enforced racial
segregation in the Greensville County school system. Prior to
1965, the elementary and high schools located in Emporia served
all white children in the county, while Negro children throughout
the county were assigned to a single high school or one of four
elementary schools, all but one of which were located outside the
Emporia town boundary. In January 1966, the District Court
approved a so-called 'freedom of choice' plan that had been
adopted by the county in April of the previous year. Wright v.
County School Board of Greensville County, D.C., 252 F.Supp. 378.
No white students ever attended the Negro schools under this plan,
and in the 1968—1969 school year only 98 of the county's 2,510
Negro students attended white schools. The school faculties
remained completely segregated.

Following our decision in Green v. County School Board, etc.,
391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716, holding that a
freedom-of-choice plan was an unacceptable method of desegregation
where it failed. 'to provide meaningful assurance of prompt and
effective disestablishment of a dual system,' id., at 438, 88
S.Ct. at 1694, the petitioners filed a motion for further relief.
The District Court ordered the county to demonstrate its
compliance with the holding in Green, or to submit a plan designed
to bring the schools into compliance. After various delays, during
which the freedom-of-choice sy-

Page 456

stem remained in effect, the county submitted two alternative
plans. The first would have preserved the existing system with
slight modifications, and the second would have assigned students
to schools on the basis of curricular choices or standardized test
scores. The District Court promptly rejected the first of these
proposals, and took the second under advisement. Meanwhile, the
petitioners submitted their own proposal, under which all children
enrolled in a particular grade level would be assigned to the same
school, thus eliminating any possibility of racial bias in pupil
assignments. Following an evidentiary hearing on June 23, 1969,
the District Court rejected the county's alternative plan, finding
that it would 'substitute . . . one segregated school system for
another segregated school system.' By an order dated June 25, the
court ordered the county to implement the plan submitted by the
petitioners, referred to by the parties as the 'pairing' plan, as
of the start of the 1969—1970 school year.8

Two weeks after the District Court entered its decree, the
Emporia City Council sent a letter to the county Board of
Supervisors announcing the city's intention to operate a separate
school system beginning in September. The letter stated that an
'in-depth study and analysis of the directed school arrangement
reflects a totally unacceptable situation to the Citizens and City
Council of the City of Emporia.' It asked that the 1968
city-county agreement be terminated by mutual consent, and that
title to school property located within Emporia be transferred to
the city. The letter further

Page 457

advised that children residing in the county would be permitted to
enroll in the city schools on a tuition basis.9 At no time during
this period did the city officials meet with the county council or
school board to discuss the implementation of the pairing decree,
nor did they inform the District Court of their intentions with
respect to the separate school system.

The county school board refused either to terminate the
existing agreement or to transfer school buildings to Emporia,
citing its belief that Emporia's proposed action was 'not in the
best interest of the children in Greensville County.' The City
Council and the City School Board nevertheless continued to take
steps toward implementing the separate system throughout the month
of July. Notices were circulated inviting parents to register
their children in the city system, and a request was made to the
State Board of Education to certify Emporia as a separate school
division. This request was tabled by the State Board at its August
meeting, 'in light of matters pending in the federal court.'

According to figures later supplied to the District Court,
there were 3,759 children enrolled in the unitary system
contemplated by the desegregation decree, of whom 66% were Negro
and 34% were white. Had Emporia established a separate school
system, 1,123 of these students would have attended the city
schools, of whom 48% were white. It is undisputed that the city
proposed to operate its own schools on a unitary

Page 458

basis, with all children enrolled in any particular grade
attending the same school.

On August 1, 1969, the petitioners filed a supplemental
complaint naming the members of the Emporia City Council and the
City School Board as additional parties defendant,10 and seeking
to enjoin them from withdrawing Emporia children from the county
schools. At the conclusion of a hearing on August 8, the District
Court found that the establishment of a separate school system by
the city would constitute 'an impermissible interference with and
frustration of' its order of June 25, and preliminarily enjoined
the respondents from taking 'any action which would interfere in
any manner whatsoever with the implementation of the Court's order
heretofore entered. . . .'

The schools opened in September under the pairing order,
while Emporia continued to work out detailed plans and budget
estimates for a separate school system in the hope that the
District Court would allow its implementation during the following
school year. At a further hearing in December, the respondents
presented an expert witness to testify as to the educational
advantages of the proposed city system, and asked that the
preliminary injunction be dissolved. On March 2, 1970, the
District Court entered a memorandum opinion and order denying the
respondents' motion and making the injunction permanent. Wright v.
County School Board of Greensville County, 309 F.Supp. 671. The

Page 459

Court of Appeals for the Fourth Circuit reversed, 442 F.2d 570,
but stayed its mandate pending action by this Court on a petition
for certiorari, which we granted. 404 U.S. 820, 92 S.Ct. 56, 30
L.Ed.2d 48.

II

Emporia takes the position that since it is a separate
political jurisdiction entitled under state law to establish a
school system independent of the county, its action may be
enjoined only upon a finding either that the state law under which
it acted is invalid, that the boundaries of the city are drawn so
as to exclude Negroes, or that the disparity of the racial balance
of the city and county schools of itself violates the
Constitution. As we read its opinion, the District Court made no
such findings; nor do we.

The constitutional violation that formed the predicate for
the District Court's action was the enforcement until 1969 of
racial segregation in a school">public school system of which Emporia had
always been a part. That finding has not been challenged, nor has
Emporia questioned the propriety of the 'pairing' order of June
25, 1969, which was designed to remedy the condition that offended
the Constitution. Both before and after it became a city, Emporia
educated its children in the county schools. Only when it became
clear—15 years after our decision in Brown v. Board of Education,
347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873—that segregation in the
county system was finally to be abolished, did Emporia attempt to
take its children out of the county system. Under these
circumstances, the power of the District Court to enjoin Emporia's
withdrawal from that system need not rest upon an independent
constitutional violation. The court's remedial power was invoked
on the basis of a finding that the dual school system violated the
Constitution, and since the city and the county constituted

Page 460

but one unit for the purpose of student">student assignments during the
entire time that the dual system was maintained, they were
properly treated as a single unit for the purpose of dismantling
that system.

In Green v. County School Board, etc., 391 U.S. 430, 88 S.Ct.
1689, 20 L.Ed.2d 716, the issue was whether the school board's
adoption of a 'freedom of choice' plan constituted adequate
compliance with the mandate of Brown v. Board of Education, 349
U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (Brown II). We did not hold
that a freedom-of-choice plan is of itself unconstitutional.
Rather, we decided that any plan is 'unacceptable' where it 'fails
to provide meaningful assurance of prompt and effective
disestablishment of a dual system. . . .' 391 U.S., at 438, 88
S.Ct. at 1694. In Monroe v. Board of Commissioners, etc., 391 U.S.
450, 88 S.Ct. 1700, 20 L.Ed.2d 733, we applied the same principle
in rejecting a 'free transfer' plan adopted by the school board as
a method of desegregation:

'We do not hold that 'free transfer' can have no place in a
desegregation plan. But like 'freedom of choice,' if it
cannot be shown that such a plan will further rather than
delay conversion to a unitary, nonracial, nondiscriminatory
school system, it must be held unacceptable.' Id., at 459, 88
S.Ct. at 1705.

The effect of Emporia's proposal was to erect new boundary
lines for the purpose of school attendance in a district where no
such lines had previously existed, and where a dual school system
had long flourished. Under the principles of Green and Monroe,
such a proposal must be judged according to whether it hinders or
furthers the process of school desegregation. If the proposal
would impede the dismantling of the dual system, then a district
court, in the exercise of its remedial discretion, may enjoin it
from being carried out.

The Court of Appeals apparently did not believe this case to
be governed by the principles of Green and

Page 461

Monroe.11 It held that the question whether new school district
boundaries should be permitted in areas with a history of
state-enforced racial segregation is to be resolved in terms of
the 'dominant purpose of (the) boundary realignment.'

'If the creation of a new school district is designed to
further the aim of providing quality education and is
attended secondarily by a modification of the racial balance,
short of resegregation, the federal courts should not
interfere. If, however, the primary purpose for creating a
new school district is to retain as much of separation of the
races as possible, the state has violated its affirmative
constitutional duty to end state supported school
segregation.' 442 F.2d at 572.

Although the District Court had found that 'in a sense, race
was a factor in the city's decision to secede,' 309 F.Supp., at
680, the Court of Appeals found that the primary purpose of
Emporia's action was 'benign,' and was not 'merely a cover-up' for
racial discrimination. 442 F.2d, at 574.

This 'dominant purpose' test finds no precedent in our
decisions. It is true that where an action by school authorities
is motivated by a demonstrated discriminatory purpose, the
existence of that purpose may add to the discriminatory effect of
the action by intensifying the stigma of implied racial
inferiority. And where a school board offers nonracial
justifications for a plan that is less effective than other
alternatives for dismantling a dual school system, a demonstrated
racial purpose may be taken into consideration in determining the
weight to be given to the proffered justification.

Page 462

Cf. Green, supra, 391 U.S. at 439, 88 S.Ct. at 1694. But as we
said in Palmer v. Thompson, 403 U.S. 217, 225, 91 S.Ct. 1940,
1945, 29 L.Ed.2d 438, it 'is difficult or impossible for any court
to determine the 'sole' or 'dominant' motivation behind the
choices of a group of legislators,' and the same may be said of
the choices of a school board. In addition, an inquiry into the
'dominant' motivation of school authorities is as irrelevant as it
is fruitless. The mandate of Brown II was to desegregate schools,
and we have said that '(t)he measure of any desegregation plan is
its effectiveness.' Davis v. School Commissioners of Mobile
County, 402 U.S. 33, 37, 91 S.Ct. 1289, 1292, 28 L.Ed.2d 577.
Thus, we have focused upon the effect—not the purpose or
motivation—of a school board's action in determining whether it is
a permissible method of dismantling a dual system. The existence
of a permissible purpose cannot sustain an action that has an
impermissible effect.

The reasoning of the Court of Appeals in this case is at odds
with that of other federal courts that have held that splinter
school districts may not be created 'where the effect—to say
nothing of the purpose—of the secession has a substantial adverse
effect on desegregation of the county school district.' Lee v.
Macon County Board of Education, 5 Cir., 448 F.2d 746, 752. See
also Stout v. United States (Jefferson County Board of Education
v. Board of Education for City of Pleasant Grove), 5 Cir., 448
F.2d 403, 404; Haney v. County Board of Education, 8 Cir., 410
F.2d 920, 924; Burleson v. County Board of Election Commissioners,
D.C., 308 F.Supp. 352, 356, aff'd, 8 Cir., 432 F.2d 1356; Aytch v.
Mitchell, D.C., 320 F.Supp. 1372, 1377. Though the purpose of the
new school districts was found to be discriminatory in many of
these cases, the courts' holdings rested not on motivation or
purpose, but on the effect of the action upon the dismantling of
the dual school systems involved. That was the focus of the
District Court in this case, and we hold that its approach was
proper.

Page 463

III

The basis for the District Court's ruling was its conclusion
that if Emporia were allowed to establish an independent system,
Negroes remaining in the county schools would be deprived of what
Brown II promised them: a school system in which all vestiges of
enforced racial segregation have been eliminated. The District
Court noted that the effect of Emporia's withdrawal would be a
'substantial increase in the proportion of whites in the schools
attended by city residents, and a concomitant decrease in the
county schools.' 309 F.Supp., at 680. In addition, the court found
that the departure of the city's students, its leadership, and its
financial support, together with the possible loss of teachers to
the new system, would diminish the chances that transition to
unitary schools in the county would prove 'successful.'

Certainly, desegregation is not achieved by splitting a
single school system operating 'white schools' and 'Negro schools'
into two new systems, each operating unitary schools within its
borders, where one of the two new systems is, in fact, 'white' and
the other is, in fact, 'Negro.' Nor does a court supervising the
process of desegregation exercise its remedial discretion
responsibly where it approves a plan that, in the hope of
providing better 'quality education' to some children, has a
substantial adverse effect upon the quality of education available
to others. In some cases, it may be readily perceived that a
proposed subdivision of a school district will produce one or both
of these results. In other cases, the likelihood of such results
may be less apparent. This case is of the latter kind, but an
examination of the record shows that the District Court's
conclusions were adequately supported by the evidence.

Page 464

Data submitted to the District Court at its December hearing
showed that the school system in operation under the 'pairing'
plan, including both Emporia and the county, had a racial
composition of 34% white and 66% Negro. If Emporia had established
its own system, and if total enrollment had remained the same, the
city's schools would have been 48% white and 52% Negro, while the
county's schools would have been 28% white and 72% Negro.

We need not and do not hold that this disparity in the racial
composition of the two systems would be a sufficient reason,
standing alone, to enjoin the creation of the separate school
district. The fact that a school board's desegregation plan leaves
some disparity in racial balance among various schools in the
system does not alone make that plan unacceptable.12 We observed
in Swann, supra, that '(t)he constitutional command to desegregate
schools does not mean that every school in every community must
always reflect the racial composition of the school system as a
whole.' 402 U.S., at 24, 91 S.Ct. at 1280.

But there is more to this case than the disparity in racial
percentages reflected by the figures supplied by the school board.
In the first place, the District Court found that if Emporia were
allowed to withdraw from the existing system, it 'may be
anticipated that the proportion of whites in county schools may
drop as those who can register in private academies,' 309 F.Supp.,
at 680, while some whites might return to the city schools from
the private schools in which they had previously enrolled. Thus,
in the judgment of the District Court, the statistical breakdown
of the 1969—1970 enrollment figures between city residents and
county

Page 465

residents did not reflect what the situation would have been had
Emporia established its own school system.

Second, the significance of any racial disparity in this case
is enhanced by the fact that the two formerly all-white schools
are located within Emporia, while all the schools located in the
surrounding county were formerly all-Negro. The record further
reflects that the school buildings in Emporia are better equipped
and are located on better sites than are those in the county. We
noted in Swann that factors such as these may in themselves
indicate that enforced racial segregation has been perpetuated:

'Independent of student">student assignment, where it is possible to
identify a 'white school' or a 'Negro school' simply by
reference to the racial composition of teachers and staff,
the quality of school buildings and equipment, or the
organization of sports activities, a prima facie case of
violation of substantive constitutional rights under the
Equal Protection Clause is shown.' 402 U.S., at 18, 91 S.Ct.,
at 1277.

Just as racial balance is not required in remedying a dual
system, neither are racial ratios the sole consideration to be
taken into account in devising a workable remedy.

The timing of Emporia's action is a third factor that was
properly taken into account by the District Court in assessing the
effect of the action upon children remaining in the county
schools. While Emporia had long had the right under state law to
establish a separate school system, its decision to do so came
only upon the basis of—and, as the city officials conceded, in
reaction to—a court order that prevented the county system from
maintaining any longer the segregated system that had lingered for
15 years after Brown I. In the words of Judge Winter, dissenting
in the Court

Page 466

of Appeals, '(i)f the establishment of an Emporia school district
is not enjoined, the black students in the county will watch as
nearly one-half the total number of white students in the county
abandon the county schools for a substantially whiter system.' 442
F.2d 588, at 590. The message of this action, coming when it did,
cannot have escaped the Negro children in the county. As we noted
in Brown I: 'To separate (Negro school children) from others of
similar age and qualifications solely because of their race
generates a feeling of inferiority as to their status in the
community that may affect their hearts and minds in a way unlikely
ever to be undone.' 347 U.S., at 494, 74 S.Ct., at 691. We think
that, under the circumstances, the District Court could rationally
have concluded that the same adverse psychological effect was
likely to result from Emporia's withdrawal of its children from
the Greensville County system.

The weighing of these factors to determine their effect upon
the process of desegregation is a delicate task that is aided by a
sensitivity to local conditions, and the judgment is primarily the
responsibility of the district judge. See Brown II, supra, 349
U.S. at 299, 75 S.Ct. at 755.13 Given the totality of the
circumstances, we hold that the District Court was justified in
its conclusion that Emporia's establishment of a separate system
would actually impede the process of dismantling the existing dual
system.

Page 467

IV

Against these considerations, Emporia advances arguments that
a separate system is necessary to achieve 'quality education' for
city residents, and that it is unfair in any event to force the
city to continue to send its children to schools over which the
city, because of the character of its arrangement with the county,
has very little control. These arguments are entitled to
consideration by a court exercising its equitable discretion where
they are directed to the feasibility or practicality of the
proposed remedy. See Swann v. Charlotte-Mecklengurg Board of
Education, supra, 402 U.S., at 31, 91 S.Ct., at 1283. But, as we
said in Green v. County School Board, etc., supra, the
availability of 'more promising courses of action' to dismantle a
dual system 'at the least . . . places a heavy burden upon the
board to explain its preference for an apparently less efective
method.' 391 U.S., at 439, 88 S.Ct., at 1695.

In evaluating Emporia's claims, it must be remembered that
the city represents the interests of less than one-third of the
students in the system being desegregated. Only the city officials
argue that their plan is preferable to the 'pairing' plan
encompassing the whole of the city-county system. Although the
county school board took no position in the District Court either
for or against Emporia's action, it had previously adopted a
resolution stating its belief that the city's action was not in
the best interests of the county children. In terms of Green, it
was only the respondents—not the county school board—who expressed
a 'preference for an apparently less effective method' of
desegregation.

At the final hearing in the District Court, the respondents
presented detailed budgetary proposals and other evidence
demonstrating that they contemplated a more

Page 468

diverse and more expensive educational program than that to which
the city children had been accustomed in the the Greensville
County schools. These plans for the city system were developed
after the preliminary injunction was issued in this case. In
August 1969, one month before classes were scheduled to open, the
city officials were intent upon operating a separate system
despite the fact that the city had no buildings under lease, to
teachers under contract, and no specific plans for the operation
of the schools. Thus, the persuasiveness of the 'quality
education' rationale was open to question. More important,
however, any increased quality of education provided to city
students would, under the circumstances found by the District
Court, have been purchased only at the price of a substantial
adverse effect upon the viability of the county system. The
District Court, with its responsibility to provide an effective
remedy for segregation in the entire city-county system, could not
properly allow the city to make its part of that system more
attractive where such a result would be accomplished at the
expense of the children remaining in the county.

A more weighty consideration put forth by Emporia is its lack
of formal control over the school system under the terms of its
contract with the county. This argument is properly addressed to
the practicality of the District Court's action. As we said in
Davis v. Board of School Commissioners of Mobile County, 402 U.S.,
at 37, 91 S.Ct., at 1292:

'Having once found a violation, the district judge or school
authorities should make every effort to achieve the greatest
possible degree of actual desegregation, taking into account
the practicalities of the situation.'

And in Swann, supra, we noted that a desegregation plan
cannot be regarded as a proper exercise of a dis-

Page 469

trict court's discretion where it is not 'reasonable, feasible and
workable.' 402 U.S., at 31, 91 S.Ct., at 1283.

We do not underestimate the deficiencies, from Emporia's
standpoint, in the arrangement by which it undertook in 1968 to
provide for the education of its children. Direct control over
decisions vitally affecting the education of one's children is a
need that is strongly felt in our society, and since 1967 the
citizens of Emporia have had little of that control. But Emporia
did find its arrangement with the county both feasible and
practical up until the time of the desegregation decree issued in
the summer of 1969. While city officials testified that they were
dissatisfied with the terms of the contract prior to that time,
they did not attempt to change it. They argued that the
arrangement became intolerable when the 'pairing' decree was
entered, because the county officials who would control the budget
of the unitary system lacked the desire to make the unitary system
work. The District Court did not accept the contention that a lack
of enthusiasm on the part of county leaders would, if Emporia
children remained in the system, block a successful transition to
unitary schools. The court felt that the 'desire of the city
leaders, coupled with their obvious leadership ability,' would
make itself felt despite the absence of any formal control by the
city over the system's budget and operation, and that the city's
leadership would be 'an important facet in the successful
operation of any court-ordered plan.' 309 F.Supp., at 679. Under
these circumstances, we cannot say that the enforced continuation
of the single city-county system was not 'reasonable, feasible and
workable.'14

Page 470

The District Court explicitly noted in its opinion that its
injunction does not have the effect of locking Emporia into its
present circumstances for all time. As already noted, our holding
today does not rest upon a conclusion that the disparity in racial
balance between the city and county schools resulting from
separate systems would, absent any other considerations, be
unacceptable. The city's creation of a separate school system was
enjoined because of the effect it would have had at the time upon
the effectiveness of the remedy ordered to dismantle the dual
system that had long existed in the area. Once the unitary system
has been established and accepted, it may be that Emporia, if it
still desires to do so, may establish an independent system
without such an adverse effect upon the students remaining in the
county, or it may be able to work out a more satisfactory
arrangement with the county for joint operation of the existing
system. We hold only that a new school district may not be created
where its effect would be to impede the process of dismantling a
dual system. And in making that essentially factual determination
in any particular case, 'we must of necessity rely to a large
extent, as this Court has for more than 16 years, on the informed
judgment of the district courts in the first instance and on
courts of appeals.' Swann, supra, 402 U.S., at 28, 91 S.Ct., at
1282. In this case, we believe that the District Court

Page 471

did not abuse its discretion. For these reasons, the judgment of
the Court of Appeals is reversed.

Reversed.

djQ Mr. Chief Justice BURGER, with whom Mr. Justice BLACKMUN, Mr.
Justice POWELL, and Mr. Justice REHNQUIST join, dissenting.

If it appeared that the city of Emporia's operation of a
separate school system would either perpetuate racial segregation
in the schools of the Greensville County area or otherwise
frustrate the dismantling of the dual system in that area, I would
unhesitatingly join in reversing the judgment of the Court of
Appeals and reinstating the judgment of the District Court.
However, I do not believe the record supports such findings and
can only conclude that the District Court abused its discretion in
preventing Emporia from exercising its lawful right to provide for
the education of its own children.

By accepting the District Court's conclusion that Emporia's
operation of its own schools would 'impede the dismantling of the
dual system,' the Court necessarily implies that the result of the
severance would be something less than unitary schools, and that
segregated education would persist in some measure in the
classrooms of the Greensville County area. The Court does not
articulate the standard by which it reaches this conclusion, and
its result far exceeds the contemplation of Brown v. Board of
Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), and
all succeeding cases, including Swann v. Charlotte-Mecklenburg
Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554
(1971).

If the severance of the two systems were permitted to
proceed, the assignment of children to schools would depend solely
on their residence. County residents would attend county schools,
and city residents would attend city schools. Assignment to
schools would in no sense

Page 472

depend on race. Such a geographic assignment pattern is prima
facie consistent with the Equal Protection Clause. See Spencer v.
Kugler, 326 F.Supp. 1235 (D.C.N.J.1971), aff'd, 404 U.S. 1027, 92
S.Ct. 707, 30 L.Ed.2d 723 (1972).

However, where a school system has been operated on a
segregated basis in the past, and where ostensibly neutral
attendance zones or district lines are drawn where none have
existed before, we do not close our eyes to the facts in favor of
theory. In Green v. County School Board, 391 U.S. 430, 88 S.Ct.
1689, 20 L.Ed.2d 716 (1968), the Court ruled that dual school
systems must cease to exist in an objective sense as well as under
the law. It was apparent that under the freedom-of-choice plan
before the Court in Green, the mere elimination of mandatory
segregation had privided no meaningful remedy. Green imposed on
school boards the responsibility to 'fashion steps which promise
realistically to convert promptly to a system without a 'white'
school and a 'Negro' school, but just schools.' 391 U.S., at 442,
88 S.Ct., at 1696. That, I believe, is precisely what would result
if Emporia were permitted to operate its own school system—schools
neither Negro nor white, 'but just schools.' As separate systems,
both Emporia and Greensville County would have a majority of Negro
students, the former slightly more than half, the latter slightly
more than two-thirds. In the words of the Court of Appeals, '(t)he
Emporia city unit would not be a white island in an otherwise
black county.' 442 F.2d, at 573. Moreover, the Negro majority in
the remaining county system would only slightly exceed that of the
entire county area including Emporia. It is undisputed that
education would be conducted on a completely desegregated basis
within the separate systems. Thus, the situation would in no sense
be comparable to that where the creation of attendance zones
within a single formerly segregated school system leaves an
inordinate number

Page 473

of one-race schools, such as were found in Davis v. Board of
School Comm'rs, 402 U.S. 33, 91 S.Ct. 1289, 28 L.Ed.2d 577 (1971).
Rather than perpetuating a dual system, I believe the proposed
arrangement would completely eliminate all traces of state imposed
segregation.

It is quite true that the racial ratios of the two school
systems would differ, but the elimination of such disparities is
not the mission of desegregation. We stated in Swann v.
Charlotte-Mecklenburg Board of Education, 402 U.S., at 24, 91
S.Ct., at 1280:

'If we were to read the holding of the District Court to
require, as a matter of substantive constitutional right, any
particular degree of racial balance or mixing, that approach
would be disapproved and we would be obliged to reverse. The
constitutional command to desegregate schools does not mean
that every school in every community must always reflect the
racial composition of the school system as a whole.'

It can no more be said that racial balance is the norm to be
sought, than it can be said that mere racial imbalance was the
condition requiring a judicial remedy. The pointlessness of such a
'racial balancing' approach is well illustrated by the facts of
this case. The District Courtand the petitioners have placed great
emphasis on the estimated six-percent increase in the proportion
of Negro students in the county schools that would result from
Emporia's withdrawal. I do not see how a difference of one or two
children per class1 would even be noticed, let alone how it would
render

Page 474

a school part of a dual system. We have seen that the normal
movement of populations could bring about such shifts in a
relatively short period of time. Obsession with such minor
statistical differences reflects the gravely mistaken view that a
plan providing more consistent racial ratios is somehow more
unitary than one which tolerates a lack of racial balance. Since
the goal is to dismantle dual school systems rather than to
reproduce in each classroom a microcosmic reflection of the racial
proportions of a given geographical area, there is no basis for
saying that a plan providing a uniform racial balance is more
effective or constitutionally preferred. School authorities may
wish to pursue that goal as a matter of policy, but we have made
it plain that it is not constitutionally mandated. See Swann v.
Charlotte-Mecklenburg Board of Education, 402 U.S., at 16, 91
S.Ct., at 1276.

The Court disavows a 'racial balancing' approach, and seeks
to justify the District Court's ruling by relying on several
additional factors thought to aggravate the effect of the racial
disparity. The real significance of these additional factors is so
negligible as to suggest that the racial inbalance itself may be
what the Court finds most unacceptable.

First, the Court raises the specter of resegregation
resulting from the operation of separate school systems in the
county area, but on the record in this case this is, at best,
highly speculative. The Court suggests two reasons why such an
additional racial shift could be anticipated with the existence of
a separate school system for Emporia: white students residing in
the county might abandon the public schools in favor of private
academies, and white students residing in the city might leave
private schools and enroll in the city school.

In assessing these projections it is necessary to compare the
nature of the proposed separate systems with

Page 475

that of the court-ordered 'pairing' system. Thus the first
possibility, that white students from the county might enter
private schools, assumes that white families would be more likely
to withdraw their children from public schools that are 72% Negro
than from those that are 66% Negro. At most, any such difference
would be marginal, and in fact it seems highly improbable that
there would be any difference at all. The second possibility
postulated by the Court seems equally unlikely; it assumes that
families from the city who had previously withdrawn their children
from the public schools due to impending desegregation, would
return their children to public schools having more Negro than
white pupils.

The Court does not mention the possibility of some form of
mass migration of white families into the city from the outlying
county. Of course, when there are adjoining school districts
differing in their racial compositions, it is always conceivable
that the differences will be accentuated by the so-called 'white
flight' phenomenon. But that danger seems remote in a situation
such as this where there is a predominantly Negro population
throughout the entire area of concern.

Second, the Court attaches significance to the fact that the
school buildings located in the county were formerly used as
all-Negro schools and intimates that these facilities are of
generally poorer quality than those in the city. But the District
Court made no such finding of fact, and the record does not
support the Court's suggestion on this point. Admittedly some
dissatisfaction was expressed with the sites of the elementary
schools in the county, and only the city elementary school has an
auditorium. However, all three elementary schools located in the
county are more modern than any school building located in the
city, and the county and city high school buildings are identical
in every respect.

Page 476

On a fair reading of the entire record, it can only be said that
any differences between the educational facilities located in the
city and those in the county are de minimis.

Finally, the Court states that the process of desegregation
would be impeded by the 'adverse psychological effect' that a
separate city system would have on Negro students in the county.
Here, again, the Court seeks to justify the District Court's
discretionary action by reliance on a factor never considered by
that court. More important, it surpasses the bounds of reason to
equate the psychological impact of creating adjoining unitary
school systems, both having Negro majorities, with the feelings of
inferiority referred to in Brown I as engendered by a segregated
school system. In Brown I the Court emphasized that the legal
policy of separating children in schools solely according to their
race inevitably generates a sense of inferiority. These
observations were supported by common human experience and
reinforced by psychological authority. Here the Court seeks to
make a similar judgment in a setting where no child is accorded
differing treatment on the basis of race. This wholly speculative
observation by the Court is supported neither by common experience
nor by scientific authority.

Even giving maximum rational weight to all of the factors
mentioned by the Court, I cannot conclude that separate systems
for Emporia and Greensville County would be anything less than
fully unitary and nonracial. The foundation and superstructure of
the dual system would be dissolved, and the result would not
factually preserve the separation of races that existed in the
past. We noted in Swann 'that the existence of some small number
of one-race, or virtually one-race, schools within a district is
not in and of itself the mark of a system that still practices
segregation by law.' 402

Page 477

U.S., at 26, 91 S.Ct., at 1281. This reflects our consistent
emphasis on the elimination of the discriminatory systems, rather
than on mere numbers in particular schools. The proposed systems
here would retain no 'one-race, or virtually one-race schools,'
but more important, all vestiges of the discriminatory system
would be removed. That is all the Constitution commands.

It is argued that even if Emporia's operation of its own
unitary school system would have been constitutionally
permissible, it was nevertheless within the equitable discretion
of the District Court to insist on a 'more effective' plan of
desegregation in the form of a county-wide school system. In Brown
v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083
(1955) (Brown II), the Court first conferred on the district
courts the responsibility to enforce the desegregation of the
schools, if school authorities failed to do so, according to
equitable remedial principles. While we have emphasized the
flexibility of the power of the district courts in this process,
the invocation of remedial jurisdiction is not equivalent to
having a school district placed in receivership. It has been
implicit in all of our decisions from Brown II to Swann, that if
local authorities devise a plan that will effectively eliminate
segregation in the schools, a district court must accept such a
plan unless there are strong reasons why a different plan is to be
perferred. A local school board plan that will eliminate dual
schools, stop discrimination, and improve the quality of education
ought not be cast aside because a judge can evolve some other plan
that accomplishes the same result, or what he considers a
preferable result, with a two percent, four percent, or six
percent difference in racial composition. Such an approach gives
controlling weight to sociological theories, not constitutional
doctrine.

This limitation on the discretion of the district courts
involves more than polite deference to the role of local

Page 478

governments. Local control is not only vital to continued public
support of the schools, but it is of overriding importance from an
educational standpoint as well. The success of any school system
depends on a vast range of factors that lie beyond the competence
and power of the courts. Curricular decisions, the structuring of
grade levels, the planning of extracurricular activities, to
mention a few, are matters lying solely within the province of
school officials, who maintain a day-to-day supervision that a
judge cannot. A plan devised by school officials is apt to be
attuned to these highly relevant educational goals; a plan deemed
preferable in the abstract by a judge might well overlook and thus
undermine these primary concerns.

The discretion of a district court is further limited where,
as here, it deals with totally separate political entities. This
is a very different case from one where a school board proposes
attendance zones within a single school district or even one where
a school district is newly formed within a county unit. Under
Virginia law, Emporia is as independent from Greensville County as
one State is from another. See City of Richmond v. Board of
Supervisors of Henrico County, 199 Va. 679, 684, 101 S.E.2d 641,
644 (1958); Murray v. City of Roanoke, 192 Va. 321, 324, 64 S.E.2d
804, 807 (1951). This may be an anomaly in municipal
jurisprudence, but it is Virginia's anomaly; it is of ancient
origin, and it is not forbidden by the Constitution. To bar the
city of Emporia from operating its own school system is to strip
it of its most important governmental responsibility, and thus
largely to deny its existence as an independent governmental
entity. It is a serious step and, absent the factors that persuade
me to the contrary in Scotland Neck,2 decided today, I am
unwilling to go that far.

Page 479

Although the rights and powers of a bona fide political
entity may not be used as a cloak for evasive action, neither can
those powers be nullified by judicial intervention to achieve a
unitary system in a particular way. When a plan devised by local
authorities crosses the threshold of achieving actual
desegregation, it is not for the district courts to overstep local
prerogatives and insist on some other alternative. Judicial power
ends when a dual school system has ceased to exist.

Since Emporia's operation of a separate school system would
not compromise the goal of eliminating dual schools, there is no
basis for requiring Emporia to demonstrate the necessity of its
decision. The 'heavy burden' test referred to in Green applies
only where there is serious reason to doubt the efficacy of a
school board's plan as a means of achieving desegregation, and
there is no basis for such doubt here. Nonetheless, the Court's
treatment of Emporia's reasons for establishing a separate system
merits comment.

The Court makes light of Emporia's desire to create a
high-quality, unitary school system for the children of its
citizens. In so doing, the Court disregards the following explicit
finding of the District Court:

'The city clearly contemplates a superior quality educational
program. It is anticipated that the cost will be such as to
require higher tax payments by city residents. A kindergarten
program, ungraded primary levels, health services, adult
education, and a low pupil-teacher ratio are included in the
plan. . . .' 309 F.Supp. at 674.

Furthermore, the Court suggests that if Emporia were in fact
to provide the top-flight educational program the District Judge
anticipated, it could only worsen the quality of education in the
remaining county schools. To be sure, there was cause for concern
over the relative quality of education offered in the county
schools;

Page 480

as the District Court observed, county officials did 'not embrace
the court-ordered unitary plan with enthusiasm.' 309 F.Supp., at
680. The record shows that prior to the 1969—1970 school year,
per-pupil expenditures in Greensville County lagged behind the
state median, and that the increase in the county school budget
for the 1969—1970 school year was insufficient to keep abreast of
inflation, not to mention increased transportation costs. But the
city of Emporia was in no position to alleviate this problem for
the county. The county had previously refused to allow the city to
participate in joint administration of the schools, and the city
had absolutely no power to affect the level of funding for the
county schools. Under the contract, Emporia was the purchaser of
whatever educational services the county had to offer. Out of
understandable concern for the quality of these services, it
sought to alter the contractual arrangement in order to provide
better unitary schools.

There is no basis on this record for assuming that the
quality of education in the county schools was likely to suffer
further due to Emporia's withdrawal. The Court relies on the
District Court's finding that 'the desire of the city leaders,
coupled with their obvious leadership ability, is and will be an
important facet in the successful operation of any court-ordered
plan.' 309 F.Supp., at 679. The District Court made this finding
despite the fact that the county had refused to administer the
schools jointly with the city, and despite uncontradicted evidence
that there was no line of communications between the city and
county governments, that the city government had been unable to
get any cooperation from the county government, and that there was
an atmosphere of active antagonism between the two governments.
With all deference to the trier of fact, I cannot accept this
finding as supported by evidence in the record of this case. It
appears that the District Court wanted

Page 481

that 'obvious leadership ability' of Emporia's citizens to exert
its influence on the more reluctant leadership in the county. This
is a laudable goal in the abstract, but the courts must adjust
their remedies to the facts of each case as they bear on the
central problem of eliminating a dual system.

Although acknowledging Emporia's need to have some '(d)irect
control over decisions vitally affecting the education of (its)
children', the Court states that since Emporia found the
contractual arrangement tolerable prior to 1969, it should not now
be heard to complain. However, the city did not enter that
contract of its own free choice. From the time Emporia became a
city, consideration was given to the formation of a separate
school system, and it was at least thought necessary that the city
participate in administration of the county school system. After
the county rejected the city's proposal for joint administration,
the county threatened to terminate educational services for city
children unless the city entered an agreement by April 30, 1968.
Only then—under virtual duress—did the city submit to the
contractal arrangement. It was not until June 1969 that the city
was advised by its counsel that the agreement might be illegal.
Steps were then taken to terminate the strained relationship.

Recognizing the tensions inherent in a contractual
arrangement put together under these conditions, the Court
indicates that Emporia might be permitted to operate a separate
school system at some future time. The Court does not explain how
the passage of time will substantially alter the situation that
existed at the time the District Court entered its injunction. If,
as the Court states, desegregation in the county was destined to
fail if Emporia established its own school system in 1969, it is
difficult to understand why it would not be an undue risk to allow
separation in the future.

Page 482

The more realistic view is that there was never such a danger, and
that the District Court had no cause to disregard Emporia's desire
to free itself from its ties to Greensville County. However, even
on the Court's terms, I assume that Emporia could go back to the
District Court tomorrow and renew its request to operate a
separate system. The county-wide plan has been in effect for the
past three years, and the city should now be relieved of the
court-imposed duty to purchase whatever quality of education the
county sees fit to provide.

Finally, some discussion is warranted of the relevance of
discriminatory purpose in cases such as these. It is, of course,
correct that '(t)he measure of any desegregation plan is its
effectiveness,' Davis v. Board of School Comm'rs, 402 U.S., at 37,
91 S.Ct., at 1292, and that a plan that stops short of dismantling
a dual school system cannot be redeemed by benevolent motives. But
it is also true that even where a dual system has in fact been
dismantled, as it plainly has been in Emporia, we must still be
alert to make sure that ostensibly nondiscriminatory actions are
not designed to eclude children from schools because of their
race. We are well aware that the progress of school desegregation
since 1954 has been hampered by persistent resistance and evasion
in many places. Thus, the normal judicial reluctance to probe the
motives or purposes underlying official acts must yield to the
realities in this very sensitive area of constitutional
adjudication. Compare Griffin v. County School Board of Prince
Edward County, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964),
with Palmer v. Thompson, 403 U.S. 217, 91 S.Ct. 1940, 29 L.Ed.2d
438 (1971).

There is no basis for concluding, on this record, that
Emporia's decision to operate a separate school system was the
manifestation of a discriminatory purpose. The strongest finding
made by the District Court was that race was 'in a sense' a factor
in the city's decision; read in context, this ambiguous finding
does not relate to any

Page 483

invidious consideration of race. The District Court relied solely
on the following testimony of the chairman of the city school
board:

'Race, of course, affected the operation of the schools by
the county, and I again say, I do not think, or we felt that
the county was not capable of putting the monies in and the
effort and the leadership into a system that would
effectively make a unitary system work . . ..' 309 F.Supp. at
680.

I cannot view this kind of consideration of race as
discriminatory or even objectionable. The same doubts about the
county's commitment to the operation of a high-quality unitary
system would have come into play even if the racial composition of
Emporia were precisely the same as that of the entire county area,
including Emporia.

Nor is this a case where we can presume a discriminatory
purpose from an obviously discriminatory effect. Cf. Gomillion v.
Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960). We
are not confronted with an awkward gerrymander or striking shift
in racial proportions. The modest difference between the racial
composition of Emporia's proposed separate school system and that
of the county as a whole affords no basis for an inference of
racial motivation. And while it seems that the more cumbersome
features of the District Court's plan hastened the city's
inevitable decision to operate a separate unitary school system,
this was not because of any desire to manipulate the racial
balance of its schools.

Read as a whole, this record suggests that the District
Court, acting before our decision in Swann was reaching for some
hypothetical perfection in racial balance, rather than the
elimination of a dual school system. To put it in the simplest
terms the Court, in adopting the District Court's approach, goes
too far.