United States v. Scotland Neck City Board of Education – Oral Argument – March 01, 1972

Media for United States v. Scotland Neck City Board of Education

Audio Transcription for Oral Argument – February 29, 1972 in United States v. Scotland Neck City Board of Education


Warren E. Burger:

Number 70-130 United States against Scotland Neck and 70-187, Mr. Lawrence you may proceed whenever you are ready.

Lawrence G. Wallace:

Thank you Mr. Chief Justice and may it please the court.

I pointed out yesterday that with a dual school system still in effect in Halifax County in 1969, 15 years after Brown, the county turned away from the recommendations of the State Department of Public Instruction and from its agreement with the Department of Justice both of which looked toward dis-establishment of that dual school system and instead through Chapter 31 of the 1969 Session Laws, there was carved out a small separate school district for Scotland Neck, while as a mathematical matter, the removal of these 695 students could have only a limited effect on the racial percentages for the county system as whole, the effect would be very substantial in the immediate vicinity of Scotland Neck and I was about to turn to the fold out math in this large sized appendix filed by the petitioners in the consolidated case at page 12B where there is some indication of what the effect of Chapter 31’s implementation would be in the immediate vicinity of Scotland Neck within District 1 of the state’s Interim Plan.

The impact particularly is on the student assignments to the Scotland Neck School and to the Brawley School.

The two grade 1 to 12 schools that have been conducted by this county system less than one mile apart from each other.

Brawley being an all Black school and Scotland Neck the traditionally White school.

The assignment figures printed on this map were compiled by the County Board of Education.

The map was submitted by the County Board as an exhibit to a motion of theirs.

And if Chapter 31 had been implemented, these figures show that Brawley School would be more than 90% Black while the Scotland Neck School would be 57% White and 43% Black.

By contrast —

Potter Stewart:

I don’t — what is it?

The total of 366, I am talking about Brawley, Brawley was 9 White children and 350 —

Lawrence G. Wallace:

Those are the figures for Bakers School, the 366.

Brawley figures are underneath 805 Negro, 83 White.

So more than 90% of the assigned students.

Potter Stewart:

The total of 888 and what’s the C-944?

Lawrence G. Wallace:

That’s the capacity of the facility.

The total is 888.

Well, it’s slightly less than 90%, I am sorry I am mathematically was slightly off there.

But close to 90% of the students would be Black at Brawley and at Scotland Neck it would be 57% White and 43% Black.

By contrast, under the Interim Plan, which the State Department of Public Instruction had recommended, the assignments to Brawley would be slightly less than 70% Black and those to Scotland Neck more than 66% Black, a very similar ratio.

Potter Stewart:

In the county as the whole, it’s about –?

Lawrence G. Wallace:

77% Black, 22% White.

Potter Stewart:

And 1% percent Indian?

Lawrence G. Wallace:

That’s correct Your Honor.

And there was also a transfer plan adapted by the Scotland Neck City Board of Education, but struck down as unconstitutional by the Court of Appeals which would have increased the disparity under Chapter 31 even more on the basis of the first application filed.

The Scotland Neck School would have gone up to 74% White.

The Chapter 31 has not gone into effect, because the Court of Appeals stayed its mandate pending this court’s decision and the schools are now operating under a modified version of the state’s Interim Plan which we have described in some detail on page 14 of our brief in footnote 25.

Now the vice of Chapter 31 as we see it, is very similar to the vice of the North Carolina Anti-Busing Law struck down by this court last term in North Carolina Board of Education against Swann.

Chapter 31 would substantially impair, would be an obstacle to disestablishment of the dual school system in the Scotland Neck Brawley area of this county school system.

Lawrence G. Wallace:

It would fence off most of the Black students in that area from the traditionally White only Scotland Neck School and would fence off most of the Whites in that area from the nearby formerly all Black Brawley School.

As the District Court said, its effect would be to create a refuge from desegregation for White students of the Halifax County School System.

The resulting projected 90% Black enrollment at Brawley and 57% White enrollment at Scotland Neck School seems to us to bring into play the presumption against schools that are substantially disproportionate in their racial composition that this court last term said in the other Swann case applies in the context of disestablishing a dual system.

The Court of Appeals held that so long as this modification of the racial balance fall short of resegregation and is accomplished by means of the creation of a new school district, the court should not interfere if there are legitimate educational purposes and the primary purpose is not racial.

But we see nothing warranting this novel and difficult to apply test and the mere fact that the zoning here was accomplished by a new district line rather than by ordinary school assignment’s zone lines.

William H. Rehnquist:

Mr. Wallace, do you disagree with the assessment of the courts below as to the purpose for which this was done?

Or are you saying conceding that they are correct as to the purpose nonetheless the legal result which you urge for?

Lawrence G. Wallace:

Well, we think that inquiry into primary purpose which is a very difficult one is really irrelevant to how the case should be decided.

The District Court said it could not say which of the purposes it found was the primary purpose.

The Court of Appeals nonetheless proceeded to apply its primary purpose standard actually announced in the companion case which is next to be argued in (Inaudible) case.

We don’t see that the fact that new district line has been interposed rather than the ordinary method of the assigning students within the district should bring a different test into play than the test this court has applied right along in the context of school desegregation cases.

Last term, for example, the court held in Davis against the School Commissioners of Mobile County that it was error for a Federal Court in remedying a dual school system to treat the eastern part of metropolitan Mobile an isolation from the rest of the school district.

If a different result would have been required, had the state interposed a new district line cutting off that eastern portion, the principle of that case and many of the court’s desegregation cases would indeed be evanescent.

Potter Stewart:

Well, Mr. Wallace if in the Mobile case those had been two separate school districts, [Voice Overlap] the result would have been quite different?

Lawrence G. Wallace:

That was before the court was a single school district.

Potter Stewart:

Well, before the court here is quite a different problem.

Lawrence G. Wallace:

Well, that’s the question whether it is really a different problem, because the state has now put a new district line and while this district was in the process of being desegregated and the process of having the school system disestablished, that’s why I say the case would be the same if Alabama had put that line in the metropolitan Mobile area.

Byron R. White:

With the same historical contextual environment that this case actually has?

Lawrence G. Wallace:

Well, that’s correct, but the cases would be very similar then and if a different result would have been required in Mobile, had that change in state law been made —

Byron R. White:

Well, that’s the question before the court.

Lawrence G. Wallace:

That’s the question before the court, but we are pointing out that it would mean that the principles that we thought were established in the Mobile case would be one that could easily be avoided.

Warren E. Burger:

I am not sure I have your response clearly in mind Mr. Wallace, let me see if get it.

If in the Mobile case the area on the far side of the railroad tracks had been treated as a separate unit by the courts in the fifth circuit.

If in that case that part of Mobile had been separated by a lawful process from the city of Mobile itself, then would we have factually comparable case to what we have here?

Lawrence G. Wallace:

A very similar case.

If in the course, in the process of desegregating that system and disestablishing the dual system that had been operating throughout that area, the state had interposed a new district line cutting off that portion, a rather similar problem to this case would be presented that was the analogy that I was pointing out.

Warren E. Burger:

And that could be physically the same, however factually in the two cases the change in Mobile would have had a very drastic impact on school compositions, would it not?

Lawrence G. Wallace:

Well, that is certainly true.

Warren E. Burger:

Much more so than here.

Lawrence G. Wallace:

Much more so throughout the area as a whole.

Lawrence G. Wallace:

Here, the impact is very drastic on the relatively small number of students in the immediate area of Scotland Neck.

Warren E. Burger:

Would you call it very drastic here?

What is the percentage impact?

Lawrence G. Wallace:

Well, the Black students in that area have by law been excluded from attending the only White only school there, the only traditionally White school and now 90% of that would still be excluded.

Warren E. Burger:

Not drastic in numbers though?

Lawrence G. Wallace:

Not in — well, we are dealing only with a small number of students in this case, that’s the fact of the case.

The state chose to separate out an extremely small little school district here.

So naturally we are not talking about large numbers.

But we are talking about individuals with constitutional rights here.

In our view the test should be that of this court’s Green Decision.

That when in disestablishing a dual school system more promising courses of action are open to the state.

The state has a heavy burden to justify its choice of a less effective method.

Essentially, the test would be whether a school assignment zone would have been properly drawn this way in the absence of splitting the district up, because the district was in the process of disestablishing a dual system and we think it plain that the burden on the state, on to the Green case has not been satisfied here.

It is relevant first of all that the new Scotland Neck school district with only 695 students is far smaller than the state’s own standards concerning the desirable and minimally acceptable size for school districts.

On page 12 of our brief, we have set out the evidence and record on that.

This has been made even more anomalous by the fact that both Halifax County and the town of Scotland Neck are losing population, are decreasing in size according to the 1960 and 1970 census figures; not normally the situation where you would be breaking up rather than consolidating school districts.

Purposes found by the district court for Chapter 31 also fall far short in our view of an inadequate justification, more local control over the schools if desired can be achieved without selecting out so abnormally small a new district with so great a racial effect on the desegregation process in the immediate vicinity.

And the need for increasing school expenditures does not in our view justify fencing off the only traditionally White school and most of the White students from the other school and the surrounding area and making the improvements only in that school.

The only other purpose found by the District Court was prevention of anticipated White flight from the public schools.

In Monroe against The Board of Commissioners, one of the three cases of the Green trilogy.

That this court emphatically rejected the contention that was strongly made there that fear of White flight can justify perpetuation of some aspects of vestiges of the dual school system.

That holding, we believe was soundly based on the teaching of Brown and Cooper against Aaron that community acceptance is not to be the measure of the constitutional rights of school children.

And there is no reason that we can say the part of from holding here, the respondents emphasized that they have submitted post trial affidavits of school enrollment figures to show that considerable White flight has materialized in this district.

Potter Stewart:

Am I correct in my recollection Mr. Wallace that in the Charlotte-Mecklenburg opinion last term, we said that the danger of White flight is something that a district court could quite appropriately recognize and try to prevent in its desegregation decree, the danger of resegregation, which is what White flight causes?

Am I wrong?

I just don’t remember it.

But my recollection is that there was — that the opinion addressed itself to that problem.

Lawrence G. Wallace:

I thought that; that was in the other context that it wouldn’t be an adequate remedy to setup a situation whereby anticipated rather minor changes in residential patterns would lead to quick resegregation.

Potter Stewart:

I don’t have all of the really complicated facts in last year’s school board in mind, and I haven’t reread it, but the transfer of those students out to the high school on the periphery in the community was approved by this court as an appropriate action that the District Judge took, and his purpose of taking that action was to, as I remember it, to prevent White flight which leads to resegregation.

That’s what resegregation means, isn’t it?

Lawrence G. Wallace:

Well, I thought that resegregation was largely a matter of action that the state has taken, that leads to resegregation.

Potter Stewart:

Maybe we don’t agree on the meaning of that rather new word, but I thought that it was a word that described a phenomenon i.e. White flight and the result of White flight.

Byron R. White:

I assume that was known to the school district here at all before, but in the process of drafting a remedy the District Court had or had simply said that there would be an attendance district in exactly the same shape as Scotland Neck.

Now why would have that been improper?

Lawrence G. Wallace:

Well, because as here you have these two traditionally 1 through 12 school located only three quarters of the mile apart.

The Blacks had all been assigned to one, the Whites all attended the other.

The process of trying to desegregate and to disestablish the duality of these two schools under this court’s decision, is a process of trying to break down this overwhelming historic racial identification of the two school.

It seems to us that when one of them is, because of the peculiar configuration of the assignment zone that’s drawn left with 90% Black population, when most of the Blacks are excluded from the assignment zone to the White school and the White school is trying to be predominantly White.

That hasn’t broken down the racial identification of the two school when other alternatives are readily available, that was what the court said in Green.

Byron R. White:

You aren’t proposing any general rule however that in no circumstances when a county is adopting a desegregation plan, where the county is 80% Black, 20% White, that there never could be under such a plan, a school attendance zone with 50-50 White and Black.

Lawrence G. Wallace:

Not at all.

We are not contending for any principal racial balance from one school.

Byron R. White:

It’s just the particular facts that —

Lawrence G. Wallace:

It’s the particular facts here.

Byron R. White:

Or it’s Scotland Neck?

Lawrence G. Wallace:

There are obviously alternative means available that would be more effective in disestablishing the dual identification of these schools as the White school and Black school, and no adequate justification has been shown for adopting this less effective method which seems to us to perpetuate the duality.

Byron R. White:

As Mr. Wallace, am I correct that many years ago Scotland Neck was a separate district.

Lawrence G. Wallace:

Prior to 1936, Your Honor.

Byron R. White:

But you have a historical fact here which is not often present.

Suppose it never had been enveloped into the county system, would your case be different today?

Lawrence G. Wallace:

I think it will raise very different issues about the propriety as a remedial matter of extending the remedy across long established and long observed district lines.

Here the state has interposed a new district line within the district that was in the process of disestablishing its dual system.

Byron R. White:

Do you feel it would be a different case?

Lawrence G. Wallace:

It would be a different case.

That doesn’t necessarily mean a different result, but it’s not a case that we are addressing here.

In conclusion, I would just like to say about the submissions that the respondents have made as to the post trial White flight that has occurred.

Of course, this is — we don’t know where these children have gone or how long or what they would have done, had Chapter 31 been implemented.

This is all assuming that these affidavits are accurate.

But basically, we believe that these affidavits should not affect the decision here and that it is as important for this court today as it always has been to reject the preposition of the course to Appellate decision in school desegregation cases, can be influenced by community resistance to desegregation decrease, whether that resistance has taken upon as it had in some instances of bus burnings or boycotts or as it reportedly has here taken the form of withdrawal of some of the students from the schools.

Thank you.

Warren E. Burger:

Thank you Mr. Wallace.

Mr. Stein, it’s you Mr. Stein?

Adam Stein:

Yes, sir.

Warren E. Burger:

Mr. Wallace had 25 minutes and you had 20, but he has I think somewhat over time.

So that has cut into the time alloted to you.

Mr. Marshall, have you separated out.

I think there is only about 10 minutes left.

Is there not?

You have about 10 minutes left.

I just want to be sure that we have them declared.

Adam Stein:

Mr. Chief Justice, may it please the court.

I represent the petitioners in 70-187 Pattie Black Cotton and Others who intervened these plaintiffs in the District Court.

They are Black children and their parents who had traditionally attended the Brawley School, and are the children who are most immediately affected in terms of their constitutional rights.

We think that what is most important about this case, is the facts and we agree with the government that the most important facts in the case are those which show the impact of Chapter 31 in the Scotland Neck area.

The map behind me is an enlargement of the map referred to before at page 12B of the appendix which shows that impact.

Potter Stewart:

Specifically, it’s the impact on Brawley, is it?

Adam Stein:

It’s the impact on Brawley —

Potter Stewart:

As well as on Baker?

Adam Stein:

As well as on all the formerly Black schools in the area.

Under segregation —

Potter Stewart:

But isn’t it primarily?

And you were talking about the Scotland Neck area that would be Brawley primarily?

Adam Stein:

Yes, Mr. Justice Stewart.

Under segregation the Scotland Neck school served this entire area for grades 1 to 12.

Potter Stewart:

For White children?

Adam Stein:

For White children.

Black children at the high school level from the same area went to the Brawley school.

The other four schools were Black elementary schools feeding into the Brawley school.

In the immediate area of Scotland Neck, Black children went to the Brawley school.

In that situation the town lines of Scotland Neck had nothing whatsoever to do with pupil assignment.

Adam Stein:

Therefore, you can see that the White children in the whole area, half of them, about 400 came into town, crossed the town lines, Black children in the town crossed town lines to go to the Brawley school located just across the town boundary, and indeed all the White children in the city, in the elementary grades also crossed the town lines, because the junior high school campus of the Scotland Neck school was located just outside of the town line down here about the same distance from the main campus of the Scotland Neck school as the Brawley school is.

It was this situation which the State Department of Public Instruction in its plan sought remedy.

And the remedy proposed there was a very simple neutral kind of assignment plan.

That is instead of having two high schools to serve exactly the same area; one for White and one for Black, and both of them too small under state’s standards, the Scotland Neck school traditionally serving 300 White children and the Brawley school traditionally serving about 600 children.

The state proposal consolidated those schools.

So the plan is modified such that all of the children in this area which was then designated District 1 would go to grades 10 through 12 at the Scotland Neck School, children in grades 9 would go to the Brawley school, and the elementary children would be assigned according to neutral attendance zones as shown on the map.

Thus there is an impact as well as the difference between what would happen at Brawley and Scotland Neck, because the elementary children who attend schools where the ratios reflect the residential patterns of the outlying areas some more of varying ratio, would under the state plan go to high school at schools where the ratios would reflect the entire area.

However, if Chapter 31 is implemented, then they would go to the Brawley school, a school which was traditionally Black and which would have a very much more — much Blacker ratio than the neighboring Scotland Neck.

If we would think that if there were pressures towards Whites flight in this situation, that they would certainly be accentuated on those White children, half of the children in the area who would know that under Chapter 31 they would never be attending the traditionally White school.

I pointed out that the boundary lines were always ignored as to pupil assignment.

We’ve pointed out in our brief that indeed the boundary lines of the Halifax district were ignored to promote segregation, White, Black, and Indian children regularly crossing the Halifax County lines.

Now, we think that the major impact of Chapter 31 can be seen in the impact on the Brawley School and on the Scotland Neck School.

The White and Black school are clearly identifiable as White and Black schools after Chapter 31 is implemented.

We would like to point out that a principal feature of this plan of the secession was the transfer tuition arrangement.

That was known by the legislature, that was publicly expressed in the newspaper, representative Gregory from the area who was a proponent who spoke of this in the press.

There was no secret about that and the plan was to collect all the White children into the Scotland Neck school and that in fact is what had happened when this case came on for preliminary injunction hearing in the summer of 1968.

Something like 98% of the White children in the area would always go to Scotland Neck school were again going to go to the Scotland Neck school.

So the plan was for all of them.

Without the transfer it’s for half of them, but the impact we say is very substantial.

Nonetheless, and it’s particularly substantial in terms of the interest of my clients who live in that area.

Byron R. White:

We need for you to prevail, do we have to disagree with the Court of Appeals on whether the legislature had any knowledge or considered the transfer plan.

Adam Stein:

No, Mr. Justice White, I don’t think that that needs to be reached but that was a —

Byron R. White:

The effective figure though, 90% figure, is as adequate for your arguments, isn’t it?

Adam Stein:

We certainly think so.

But what we would say is that there is more.

I mean, there are more facts suggesting —

Byron R. White:

Well, the Court of Appeals has found against you?

Adam Stein:

Well, but that was a finding contradicting, a finding by the District Court —

Byron R. White:

That is where when the Court of Appeals is found contrary to what you’re telling us.

Adam Stein:

That’s right.

Adam Stein:

It is.

And I would point out that the unit proposed here is by far — would be by far the smallest school administrative unit in the state of North Carolina.

When Chapter 31 was passed, it was the first new unit to be created since 1953, and since 1953, there has been a great movement of consolidation of units in the state serving state policies which hold that small units are inefficient, expensive and don’t produce quality education.

I would just ask the Court to take a look at the maps so that you can see what the plan looks like visually.

We would suggest that it is very awkward to create the segregation we complain of, i.e., the Brawley zone looks like a donut surrounding the town of Scotland Neck.

We had understood that awkwardness and inconvenience might be appropriate in moving towards disestablishing the dual system.

But we would suggest that an awkward assignment arrangement is certainly inappropriate where that promotes continued segregation.

In conclusion, I would say that we think as the United States has argued, that this case is controlled by the decision last term in North Carolina Board of Education against Swann, and we would urge reversal of the Court of Appeals and affirmance of the District Court’s injunction.

Warren E. Burger:

Thank you Mr. Stein.

Mr. Joyner.

William T. Joyner:

Mr. Chief Justice and may it please the Court.

I had intended to emphasize two basic facts that we think are very important here.

Number one, the quality of the community support.

Number two, the proof of the unrealistic nature of the district plan and that it has failed of its purpose as shown by experience.

Then I wanted to go into the analysis of the two plans presented to the District Court.

In view of the other arguments and in view of some questions from the bench I would like to state what I think is our position.

It’s our position number one, that as between the plans, before the District Court, one I call the Scotland Neck plan and the other the District Court plan.

Even if there had been no danger of White flight, the Scotland Neck plan was superior as a desegregation measure and should have been judged by the Court.

If there is any doubt about that, it’s our second position, that has between the two plans, the Scotland Neck plan promised realistically to work and to work now, largely because of the community support.

The district plan would almost (Inaudible) from the start.

Now, let me lay this as the foundations of our argument.

As I understand that there is a great difference between desegregation and integration and that the jurisdiction of the Court to take part as almost profoundly and 180 degree turn from Brawley, which says it’s constitutional to assign by race or color.

We could say that it is unconstitutional not to assign by race and that the answer is that there is found a remaining vestige of the evil of law-imposed segregation.

And that remaining vestige must be uprooted and that the measure adopted to destroy that remaining vestige must have a realistic opportunity to succeed and now let us see what the remaining vestige is in this case.

There is no evidence in this case of any defect or remaining vestige of state-imposed segregation, except two things.

In the Scotland Neck, where the resident population of — student population of 400 White and 300 Black.

In 1968, 1969 or before that, only approximately 39 Black students had exercised their freedom of choice and about 325 White students resident outside of Scotland Neck had exercised that choice to come into Scotland Neck.

Now, it’s entirely possible and we do not contest the fact that because of that failure of freedom of choice was a mental attitude, a reluctance to enter school, dominate in which another race was highly predominant.

And that, that mental attitude was in part, we concede a remaining vestige of state-imposed segregation.

That was the thing to be attacked and that the question to be decided by the District Court was whether the Scotland Neck plan or the District plan was better designed to change that mental attitude to be a corrected measure and our basic position is that the District Court had the opportunity to accept the Scotland Neck plan or reject it and it rejected it.

William T. Joyner:

It had the opportunity to accept it and had they accepted it, there would have been one school in the district that was truly a unitary school.

Now the opponents have said you had a White school in Scotland Neck and a Black school in Brawley.

We contend that that is not correct, you cannot designate 5743 as a White school and the probabilities are tremendously strong that the attendants would be approximately 50%.

Potter Stewart:

It would be the only school in the county would it not, that would not b majority Negro?

William T. Joyner:


That’s correct.

And we say that, that was the community support as a tremendous chance of success and if it succeeds, it can be a model or it can be proof to the public that Blacks and Whites can work together successfully and in harmony to give quality education.

Now, good deal has been said about the Brawley.

Scotland Neck situation.

I want to address myself to that, that seems to be the principal contention I would rather say.

Now what was the failure, what was the wrong that was done?

The wrong that was done by the state-imposed segregation was referenced to Brawley, whereas the Scotland Neck was using the Brawley school to take care of the Black resident pupils in the Scotland Neck.

Potter Stewart:

And to do what?

William T. Joyner:

To follow the state-imposed segregation, the school in the Scotland Neck was attended only by Whites and the Black pupils living in the Scotland Neck went to Brawley and Scotland Neck did make use of Brawley to that extent.

It didn’t have to put up two schools within it’153, Tilton and Others against Richardson, findlaws borders.

Now if that is the wrong, then that wrong was completely cured by the statute because by the statute and after the first further filed by the Scotland Neck board, the plan of the Board announced in that answer and proclaimed by advertiser, was to take all of those 300 Black students that had been going to Brawley, most of them as a part of the remaining vestige of state-imposed segregation and assignment to Scotland Neck and to assign to Scotland Neck it’s resident Whites and the transfer situation doesn’t enter into the constitutionality at all because the Board announced in its answer and in its first and in its advertisement, that the transfers in and out would be according to a plan approved by the Court, but the statement were made yet that the Brawley people who were excluded from Scotland Neck, they’re not excluded from Scotland Neck at all.

They have the right of freedom of choice to come into Scotland Neck in accordance with such plan as the District Court may approve.

Now, something has been said about presumptions.

As I understand in the Swann case there are two types of presumptions; number 1, that there is a presumption based on disparity of racial imbalance, that there is a remaining vestige, that is a presumption.

Well, that presumption has been followed here because we have accepted that and we have set forward a plan adapted by the statute to correct that situation.

So that presumption has been met.

There’s another presumption and that is a presumption of bad faith on the part of members of an organization, where there has been state-imposed segregation.

Now we contend that, that presumption has been overcome by the unchallenged great weight of the testimony — there’s contradictory testimony, as to the good faith of the members of this community.

Let me go on very briefly over that.

In the testimony of Mr. Powell — and usually it’s in the index, in the appendix, a resident of Scotland Neck, a Black member of the Board.

He testified that he came back at New York where he had an important job or good-paying job in the Post Office Department to accept employment in Rocky Mount, and to live in the Scotland Neck, some 20-25 miles Rocky Mount.

And significantly he said, he came back in almost all these words, because he wanted to find better schools for his children, because he could have more influence on the school in a small community and because the people of Scotland Neck were interested in improving the quality of their school.

That’s also in evidence in the deposition of Mr. Hendrik Lee Harrison taken by the government.

That the people of Scotland Neck have never rebelled against desegregation.

They have never fought it, they’ve never had any incidents, they’ve had excellent race relations, but they’ve been tremendously concerned about the quality of their school and one of the concerns about the quality of the school was they threatened the White flight, flight of White students.

William T. Joyner:

And let me emphasize that, I think, the record supports the conclusion that the fear of White flight and the occurrence of White flight was not due to a reluctance to associate with members of the earlier race.

That fear of White flight was that it would impair the quality of the schools, and the White flight is occasioned and caused primarily of the fear of the declining quality of the schools.

He testified that the people in the Scotland Neck did not think White flight was any answer to the situation.

They did not think —

Potter Stewart:

White flight in this case would not have been a move to the suburbs or to a different area, who would have been sending children to private schools, is that it?

William T. Joyner:

That’s right and the private schools, they think the private schools are not the answer, that private schools pose a great threat to the public schools.

That wherever there is massive White flight by any group of children, from the public school, the public schools must be impaired.

Now, very briefly, but where some of the things, the question of transfers as I said is — the suit against — this suit was started in June, in August, I think it was the 16, this defendant Scotland Neck City Board of Education was made a defendant, John was a part of it for the first time and it had to appear before Judge Larkins and Judge Butler, hold the motion for preliminary injunction in four days.

They filed a very hastened answer; they got into the court and they found that there was a very serious attack on the question of transfers.

They were so anxious to establish a quality school that they did not keep it to undertake any litigation on that.

There was permission of the court, they filed an further amended action and they said plainly in that amended answer which is Exhibit A to our brief that we propose to operate a school that will embrace all of the students, Black and White, Resident in Scotland Neck and transfers in and out will be made in accordance with a plan to be approved by the court.

In their quest for the answers, they requested the court to retain jurisdiction in order that it could supervise those transfers and In Judge Larkins opinion, he said that they would anticipate no trouble in having those transfers.

The injunction would have friezed all the money that had been collected as a special tax.

The committee got the permission of the court to advertise or to solicit more contributions to defend the law suit.

The board then published an advertisement, a three page advertisement in which it gave a blueprint of its proposed operations.

It made it public, it announced to the public that it was their intention to do what the first further answer said and it was their intention to conduct a unitary school without any prejudice whatsoever between Blacks and Whites and to public and to conduct a school in which there would be not discernible lines drawn between that.

That also is a blueprint of good faith that was published to the group.

More on the question of good faith, when the case came up for final hearing before Judge Larkins and Judge Butler, Scotland Neck examined Mr. Shields, the Chairman of the Board.

He testified as to the quality of the race relations in the community, he testified as to the intent of the board, he was examined by Mr. Josey (ph) about everything that was said in that advertisement which, by the way, is appendix B in our brief.

He testified that he and every member of the board truly met what they have said and that they continued to have those purposes.

He would stand over to the other side to examine and his whole examination is in Exhibit C to our brief.

And at the end of his examination about the intent of the Board that’s on page 50 of our brief in Exhibit C.

Mr. Chairman said alright your witness.

Mr. Kennedy represented the Department of Justice, no questions Your Honor.

Judge Larkins asked him one question, did you receive any response?

His answer was, he received a very favorable response and there were no other questions.

Mr. Josey then had sworn the other four members of the Board and he asked each of them, they had heard the testimony of Mr. Shields and they said — they didn’t answer it in that way.

He said, that they had heard the testimony and agreed with what he said and agreed with the advertisement and what he said about the advertisement, would they hold up their hand?

Everyone had held up the hands as shown by the record on page 15, on our brief attention, tangent to the record.

Again, Mr. Josey tended them for cross examination and there was not a question asked.

William T. Joyner:

They are committed to the policies set forth in that advertisement.

I also point out with reference to that, that in this case that was not introduced by the opponents, by the petitioner here, one witness to question the good faith of the Board and what it said in its first further answer or what it said in its advertisement.

As a matter of fact, there was not introduced one witness resident in Scotland Neck or the Scotland Neck area that complained of the Scotland Neck plan or expressed opposition to it.

Now, let me go back, or that was a conclusion I would draw from that.

Number one, that that un-contradicted evidence, unchallenged evidence, and there is no evidence in the case to the contrary proves completely the good faith of these men who were trying to achieve quality education in Scotland Neck and overcomes the presumption of evil referred to in this one case of a desire to perpetuate segregation or any evil desire.

Byron R. White:

Mr. Joyner, I am interested in what you think about this.

Let’s assume for the moment for the moment that all of this county had been either all Black or all White, or at least so much one way or the other that really wouldn’t make much a difference, would Scotland Neck still have made itself into a separate school district because of the desire of quality education in the sense that by making itself a separate school district, it could ensure that more money would be spent on the schools than if it were a part of the county.

William T. Joyner:

Your Honor, that’s not merely a question of opinion by me, but there is ample evidence in the record to that effect and there is no evidence to the contrary.

On that Mr. Josey answered, that’s been more certain than I did, but in my opinion based on the record, there is no question what that Scotland Neck would have asked for a special district entirely irrespective of desegregation because they were not getting sufficient money to support their school, they needed more money.

Judge Larkins says in his opinion, they had not been getting what they regarded and what the Court found supported their evidence on equal break from the county.

Byron R. White:

Why not?

William T. Joyner:

The county controls most of the funds and the county did not have a special tax, and as I understand it, Mr. Josey can answer this better than I can.

They get from the county and a lot more by pupil and they would do that if they were special district but the thing that they wanted was the special tax that would enable them to employ better teachers —

Byron R. White:

In North Carolina, after Scotland Neck becomes a city, does it remain subject to the County Schools Act, does the property in the city remains subject to the —

William T. Joyner:

Well, I understand.

It remains subject to — the property in Scotland Neck, will pay a County School tax that goes to the County and Scotland Neck’s proper proportion part is sent back to Scotland Neck.

But this tax would be in addition to that.

So this district, it doesn’t take any money off, any property off the tax that goes to this County’s support.

Warren E. Burger:

Did they give up?

Did the Scotland Neck in the separate school district give up any state resources by this action?

William T. Joyner:

I am not sure that I understand that —

Warren E. Burger:

Well grants from the state, were there are any grants which they received from the state as part of the county system?

William T. Joyner:

Well, I understand that the County School tax which is paid as a property tax on the property throughout the county including Scotland Neck and that Scotland Neck receives not the portion of the tax that it pays, but it does receive from from the county an allocation for each student enrolled in the Scotland Neck school and that which still continues to be — that tax would still be paid and the Scotland Neck would have a special tax.

Let me just say one thing about Brawley.

This Court has said that the objective is to uproot all vestiges of remaining segregation.

Well, that primarily has rural students, non-rural students, Scotland Neck primarily is a school for let’s say, for these children in that area.

Now the use of Brawley’s, I have said was that it took care of the Scotland Neck’s students.

But now, Scotland Neck is not sending a one to Brawley.

Scotland Neck is enrolling under the Scotland Neck plan, would enroll everyone of them in its own schools.

That is the value of that plan.

William T. Joyner:

And my time is nearly up, so I have to be quite brief.

The plan is a complete establishment of a unitary school in Scotland Neck and there would be no Black students sent from Scotland Neck to Brawley, enroller still have a freedom of choice to enter the Scotland Neck School, but – and the other two things I was saying, number one; that the Scotland Neck plan as being a better plan than the district plan does set up one school that can be a model and it doesn’t assign a single student to it’s schools outside of the community in which they live.

They all would come in the — the plan would not cause the irritations and the resistance that the Brawley plan caused.

And I have no time to go into this Mr. Josey may go into it, but it’s in our brief.

We contend and a part of it is set forth specific in our brief that elements of advantage the Scotland Neck plan would have even if there would be no White flight.

Now bear in mind, it’s our view that if White flight is caused by the loss of confidential that people in maintaining the quality of their schools, that they fear that to get a quality education, they must go to private schools, and that’s the danger that exists everywhere.

But as a matter of fact, whether that’s true or not, the Scotland Neck plan is preferable because the Scotland Neck plan secondly would have a greater opportunity of deterring White Flight, than would the district plan.

And I mentioned my time is up.

Warren E. Burger:

Thank you Mr. Joyner, Mr. Josey.

C. Kitchin Josey:

Mr. Chief Justice and may it please the court.

I would first like to refer to the question that Mr. Justice White adverted to concerning the tax structure in the effect if the Scotland Neck Bill was found constitutional.

The tax is levied uniformly throughout the county on ad valorem basis.

Then each separate school unit, a manipulated unit, it assigned that portion or that county-based tax on a per pupil ratio.

Now in addition, each separate school district, and I think this is true throughout the country.

In most cases, have an additional or supplementary tax, which they themselves levy and which they themselves receive.

So therefore, separate units, separate administrative units, can and do get a supplementary tax plus, by law must get that — per pupil basis of the county tax.

Now that’s one of the problems that this school in Scotland Neck face from the very beginning from 1936 until date.

They did not receive their per pupil ratio of a county tax.

That was one of the problems.

Potter Stewart:

But why didn’t they?

I thought you —

C. Kitchin Josey:

Because they were not a separate unit, they were part of the county and the County School Board, once they — the county school system gets their per pupil ratio basis of the county fact, then of course and this is proper.

The school board can spend that money within its unit, anyway it wants to.

Potter Stewart:

Than lot of money on this school than on that.

C. Kitchin Josey:

Oh yeah, because and of course in the early days, in 1936, Scotland Neck had prior to that time been a city and they had build their own schools, and they were in better shape, frankly, than the schools throughout the county and for ten years or fifteen years or so, those funds that would normally have gone to Scotland Neck, went to the other parts of the County and we raised no point about it.

William H. Rehnquist:

Well, Mr. Josey in Scotland Neck a complaint was not simply that Halifax County was not raising enough money overall for education, but that of the money it did raise, Scotland Neck wasn’t receiving as much per pupil or per school as other areas in the county.

C. Kitchin Josey:

That’s part of it, but Your Honor, it is true that Halifax County schools as a whole did not receive an adequate amount.

We first admit that.

Thurgood Marshall:

Is there any North Carolina procedure to make them do it?

C. Kitchin Josey:

I’m not sure.

C. Kitchin Josey:

There is no procedure that I know of to make them — tax that people like they should.

Thurgood Marshall:

I didn’t say that.

To make them give the amount of money per pupil that was involved.

C. Kitchin Josey:

Mr. Justice Marshall, I don’t think so, and I’m not sure that, that would be the proper —

Thurgood Marshall:

Well, is that a violation of the law or not?

C. Kitchin Josey:

Well, I think over a period of time we maybe able to bring a lawsuit and enforce and make them give us at least more than we’ve gotten.

However —

Thurgood Marshall:

You said it’s been going over since ’36?

C. Kitchin Josey:

It has, it has.

Thurgood Marshall:

Well, how long does take a lawsuit to start?

C. Kitchin Josey:

Well, I think we could have, I don’t believe that–

Thurgood Marshall:

Well, why didn’t you think it is planned in ’37?

C. Kitchin Josey:

Well, of course, the reason I have seen that they went into the city — went out of the city system because during the depression, we just didn’t have — we couldn’t levy that supplementary tax and we fell back into the county system.

In fact, many units did throughout the state, because of the overall state law that permitted them to go into the county system unless they requested to stay out, and this, of course, has been the problem.

As a matter of fact, the classrooms in Scotland Neck, the main classroom building, one was built in 1903 and the other was built in 1923.

Potter Stewart:

Well, the major complaint seems to be that the county was not collecting enough money, taxation to run into the school system, is that what you mean.

C. Kitchin Josey:

Two-fold, that is fundamental, the first.

Potter Stewart:

I was just going to come to that and you didn’t have enough remedy to propose?

C. Kitchin Josey:

That’s correct.

We were a very small part of county.

County is approximately 55,0000 in population and we are approximately 3000.

Byron R. White:

I take it that, from here on Scotland Neck wouldn’t be very enthusiastic about raising — if the Scotland Neck plan were adopted, and there was a separate school district there, Scotland Neck wouldn’t be too enthusiastic about raising the overall county tax rates for schools, because as long as the Scotland Neck property remains subject to tax ratio.

C. Kitchin Josey:

Well, of course, I think we would and I think we have shown in our — in the facts of this case that we would be interested because we would not–

You’d be getting back more of the county.

Well, we’d be getting our share.

Our per pupil ratio which we never got.

Now, the other question I think that came up with Mr. Joyner was did we, in fact, would we have, had it not been for integration and the post-integration, have asked for city separate unit.

As a matter of fact, in this case, and in the facts of this case, it is shown that in 1965, and as early as 1963 the plan were laid for separate units.

In the legislature of North Carolina in 1965, and this was, of course, before Green and this was the time when there was admittedly no integration of the schools there and no thought that it would have to be integrated.

We went to the legislature and entered instant Bill and it passed the highest and the Senator — and this is in the record.

C. Kitchin Josey:

It was felt very strongly that the ruled residents in the vicinity of Scotland Neck, defeated that bill because they didn’t want to raise their tax.

The people in Scotland Neck have been fighting this problem, certainly for many years.

Warren E. Burger:

There’s nothing unique about this in any part of the country as there, isn’t it generally true that people in the towns are prepared to spend more money for education and other services than people in the rural areas?

C. Kitchin Josey:

I certainly think that’s true, it’s —

Warren E. Burger:

Just true in the northwest part of the country, I used to think as in the southeast.

C. Kitchin Josey:

It certainly is true in our area, I’ve been a school board attorney for some time and for instance in the 1957 County School Bond Election, the only school bond election that’s passed in Halifax County, since 1936.

The school board people and the leaders in the whole county, after vigorous campaign by the school authority, this bond issue passed with a scant county-wide majority of 388 votes county-wide.

In general, the rural area of the country voted against this bond issue, and this is Appendix 933.

William H. Rehnquist:

Mr. Josey!

C. Kitchin Josey:


William H. Rehnquist:

Under North Carolina Law, did this school board, country school board members had some discretion as to how they will spend money collected by the county tax among the various schools?

They aren’t required to make a flat per pupil allocation and spend exactly that on each school per year?

C. Kitchin Josey:

That’s correct.

They do not and of course as I’ve explained to Mr. Justice Marshall, I think, they have to do that because after all some places in the county, and no doubt, and I think this is true, Mr. Justice Marshall in our county there’s no question that in 1936, 1940, 1945, maybe 1950, the Negro schools were in horrible condition and I am convinced that most of the money certainly in those early days, went for the improvement of Negro schools.

They were hold in the (Inaudible) there had been considerable improvements.

Thurgood Marshall:

You don’t have to spell it out for me.

C. Kitchin Josey:

Well, in the first 10 years, 15 years, the people of Scotland Neck moved in, and the people of Scotland Neck did not complain and I’m confident that that’s the reason and basically, no lawsuit was filed, but this thing kept up over 30 years.

Potter Stewart:

How is the Board of Supervisors of the county elected?

C. Kitchin Josey:

They are elected by county-wide vote, and this is another problem, Your Honor.

There are two city systems in our county already, the city of Roanoke Rapids which is much larger than any other city, the city of Weldon in surrounding area has a city system and those two city systems together, basically have 50% of the votes in the whole county.

Thurgood Marshall:

Both of them in the same county?

C. Kitchin Josey:

No sir, Wilson is in Wilson County, which is adjacent to us.

Potter Stewart:

Do the residents of those two cities vote for the county board of supervisor member?

C. Kitchin Josey:

They do and that’s very unfortunate, but they, you see, can swing and they do swing the vote to the country board of education members up in that area was other than the county.

We have —

Potter Stewart:

Is county schools board elected by popular votes?

C. Kitchin Josey:

It is.

Potter Stewart:

Do they come from districts or from the county at large?

C. Kitchin Josey:

There are no physical districts, this has been traditional as to generally where they run from, but there is no district, it’s state wide, it’s a county-wide vote.

We have had one member on that board out of five or six or seven member board, seven member, I believe, since 1936 and one member out of seven or eight just does not have the power to accomplish what —

Potter Stewart:

You have a county-wide vote both for the Board of Supervisors and the School Board?

C. Kitchin Josey:

No, we might — when you say the Board of Supervisors, I assume you mean the County Commissioner?

Potter Stewart:

I’m thinking about the — whatever party it is that levies the tax?

C. Kitchin Josey:

Yes, that’s County Commissioner and when you said Board of Supervisors, I didn’t quite appreciate that.

Ours is called County Commissioner and I assume you said that.

Those are elected by districts on a population basis, but you see we’re in a end of a county that is of course partially populated and we do have one member board of county commissioners.

He doesn’t enter Scotland Neck, he goes out far more outside and there again you see, the rule, he’s following up and he’s the one who’s going to stop the practice.

Byron R. White:

Did you tell just now the County School Board is also elected?

C. Kitchin Josey:

It’s elected, yes, the county-wide, but not by district.

Hugo L. Black:

It’s elected at large and your commissioners are elected by districts and Scotland Neck is in one district.

C. Kitchin Josey:


Byron R. White:

How many members — the board of county commissioners are there?

C. Kitchin Josey:

Well, they are five.

They just changed this past legislature to six which weighted it and again in the populous area from their own apparatus.

Byron R. White:

But have got that bond issue proposals in the last 20 years?

C. Kitchin Josey:

There have, and the only one that passed was the 1957 bond issue.

There have been others but they have been defeated.

Byron R. White:

How the two major cities that you’re talking about is controlling 50% of the votes?

I take it the bond issues must have been defeated in those cities or they would have carried.

C. Kitchin Josey:

When those two cities and those two systems, particularly Roanoke Rapids, when it gets ready for some money on a bond issue, then we are going to be able to pass it.

If they say no, they are not ready for it and after all they are getting a supplementary.

Byron R. White:

And how about the school?

Is the school tax, a separate item on the tax bill?

I mean, does it take separately, does the School Board certify to the county commissioners a certain assessment?

C. Kitchin Josey:

Yes, that’s correct.

Byron R. White:

So the commissioners don’t have the — maybe they have the power, but effectively, it’s the School Board that sets the tax ratio?

C. Kitchin Josey:

Oh, no, it’s county commissioners and there the County Commissioner sets the rate – sets the budget.

Byron R. White:

They don’t listen to the School Board as to how —

C. Kitchin Josey:

Well, they listen, but how much attention they pay to them Mr. Justice White, is very problematical.

As a matter of fact, the county commissioners, immediately after the 1957 bond issue, instead of leaving a capital outlay, school tax rate at 60 cents on the 100.

C. Kitchin Josey:

Instead of doing that, which they had promised the School Board they were going to do, they reduced it down to 27 cents and it’s never gotten back up.

It’s up to 29 cents since then.

So it’s less than half of what it was in 1956, because of the school bond issue, and in that issue —

Byron R. White:

Do you know how much money per pupil is spent?

Let’s say in the major cities that you’re talking about the two.

Do you know how much per pupil is spent?

C. Kitchin Josey:

We have those figures and they are somewhere in — I’m not sure about the average.

Byron R. White:

Is it substantially more than per pupil outside?

C. Kitchin Josey:

There’s no question about it.

There’s no question about the cities, but more in the education than the rural areas.

That’s I am sure true throughout —

Byron R. White:

So the people in those two cities affected themselves with school with a higher rate than the people in county?

C. Kitchin Josey:

There’s no question about it, yes Sir.

You see, this bill, that is now before this court, levies a 50 cents per 100 on proper evaluation in the city of Scotland Neck, that’s the highest percentage about North Carolina law that Scotland Neck —

Byron R. White:

That would be an addition to this county tax?

C. Kitchin Josey:

Yes, would be an addition to county tax.

Byron R. White:

Is that comparable to the extra rate in the other two — in the other major cities?

C. Kitchin Josey:

It’s more than any of the other two cities.

It’s more than any — in the 1957 bond issue, even though Scotland Neck voted for it and had almost half of the total county majority, if Scotland Neck had been a separate unit that time, it would have gotten $190,000 that is based on the per pupil ratio.

As a matter of fact, not $1 of those funds were ever spent in the time of Scotland Neck, not $1.

Then in 1963, there was a state bond issue, and that’s the only state bond issue, (Inaudible) state bond issue.

The Halifax County Schools got approximately $1 million.

Not $1 of this money was ever spent in the time of Scotland Neck.

Of course at that time the people began, as Mr. Justice Marshall suggested, to get disappointed and upset and they then in 1963, drew up a bill and they introduced in the legislature.

The people had a long fight with their schools.

They made every effort to upgrade their schools.

They have certainly not been — I’m not saying that they were real happy with the Brown decision.

I’m not saying that they were happy with the Green decision, but the time of Scotland Neck and its citizens, and I think it’s abundant evidence to that effect.

Certainly, we’re willing to face that problem realistically.

Byron R. White:

What Scotland Neck is going to do do with school of the (Inaudible)

C. Kitchin Josey:

Well, if Your Honor, please, that balance schools in the state of North Carolina that are approximately of the similar size, who in accordance with alll rankings, and this was part of the record are in the top, in the state.

As a matter of fact, Halifax County School is a 160 out of a 160 unit, is the bottom in the whole state.

The number of students that go onto college, that’s just one indication of the academic rating of the schools of Halifax County is a 160 out of 160.

Byron R. White:

But, what’s the capacity — the schools have approximately?

C. Kitchin Josey:

Approximately 750, approximately same amount that we have proposed with the students.

Over 700 —

Byron R. White:

Without the transfer plan.

Without how many students are going to be in a–

C. Kitchin Josey:

Approximately 700.

Byron R. White:

Well with the transfer plan, how many 1000?

C. Kitchin Josey:

Well, with the transfer plan, a 1000.

Byron R. White:

But the transfer plan has been stricken down.

C. Kitchin Josey:

It’s been stricken.

Byron R. White:

So the Whites who were going to come in or anybody else who want to come in won’t be coming in–

C. Kitchin Josey:

I’m sure, that’s true.

There would be a very limited amount of transfer.

Now the district court in its opinions stated that it would have no difficultly with this transfer that it could and it proposed two or three different possibilities.

One; to let one Black one White come in.

In other words keep the balance.

But I don’t know that the transfer plan is necessary at all, it’s just walk them in, walk them out.

Byron R. White:

I know but will your 50 cents — I suppose you had planned on 1000 students?

C. Kitchin Josey:

I assume that–

Byron R. White:

Say five out of 1000 students and if it takes 50 cents to run the school with 1000 students, what are you going to do with only 700?

Is it —

C. Kitchin Josey:

Well, that would be that much more per pupil.

In other words, we weren’t going to get but–

Byron R. White:

Yeah, but you were going to charge for the–

C. Kitchin Josey:

Well, that charge would certainly not take care of the–

Byron R. White:

But you’re going to save money.

C. Kitchin Josey:

We’ll have more per pupil, that’s correct.

C. Kitchin Josey:

On summary, which we contend describes attitudes and the hopes of the people of the time of Scotland Neck is candidly expressed in the deposition of Frank Shields Chairman of the Scotland Neck’s City Board of Education and answer to the question propounded by the government’s attorney.

I’d like to quote him.

That’s Appendix, page 436.

“I think that the people of Scotland Neck, both Negro and White are moderates.

In my talking to people they have felt that integration was inevitable.

I would have to say that the thinking of, I don’t like the word progressive but the people that really consider problems ahead of their actual taking place, they felt like we ought to be making some preparation for the two races attending the same school.

I have personally felt that when you involve something as large as this county, that there’s going to be a lot of rough road ahead.

Now we have not had any demonstrations here.

We have not had any board cuts here.

As far as I know, there has been no friction between the two races.

But I cannot say that about any other community in Halifax County and I personally have felt that if folks right down here that go ahead and integrate and get it over and get on back to education that is it would be effort well spent.

I was aware of and was in agreement with Mr. Harrision when he asked for an integrated high school down here, and that was in 1966 before agreement.

I felt and I wasn’t by myself.

There were others that felt, well, in this way we can go ahead, we will be right.

We can go ahead with education.

So, I am sure that in our discussion, and I felt like this was, we had tried every method that I knew of to try within the county, to try to go ahead and in this end of the county, I am not talking about independently, but for us to go ahead and move on into integration, I felt like this setting up this school system would bring us in compliance with the law and we could go ahead without interrupting “education”.”

We contend that the two judge district court, after several days observing this type of witness, and after sharply questioning them personally concluded that the Scotland Neck City System could and would be operated in a completely nondiscriminatory manner and for the betterment of the education of its students.

In its findings of fact, “The Halifax County School Superintendent as saying that the interim plan which the court eventually ordered, could still be implemented if the constitutionality of the Scotland Neck district was upheld.

That Halifax County would still get the same amount of money per pupil from the state and from local sources in the county and that the county would have an even better pupil teacher ratio in certain areas of instructions”.

The court further added, “If the school district itself were found to be constitutional, it would not be difficult to fashion an acceptable transfer plan by either limiting transfers in and out sets that the Black-White ratio would be the same after accepting transfer or by accepting an equal number of Blacks and Whites”.

We earnestly contend —

Thurgood Marshall:

Is this voluntary transfer of business?

C. Kitchin Josey:

No, this would not be voluntary, there would be no transfer overall except by the district court, and I assume that we have agreed in our answer that whatever plan that we would have a transfer would be submitted to the court.

Here the case one possibility would be —

Thurgood Marshall:

Well, the only question I’m asking is, is this voluntary or not?

C. Kitchin Josey:

It’s not voluntary on our part, we —

Thurgood Marshall:

I didn’t mean voluntary on your part, I meant voluntary on the student’s part, which we paired few decisions about the voluntary plan.

C. Kitchin Josey:

No, this would definitely not be a free transfer plan, Your Honor, as I said and it would be whatever the court demanded or required in accordance with the decisions that this court has set down.

I’m not sure what it would be and I’m not sure that the district court knows yet.

But we honestly contend —

Warren E. Burger:

Your time has expired, you just got to close.

C. Kitchin Josey:

We earnestly contend that the North Carolina legislature and the public school leaders of community of Scotland Neck, have presented a plan which will best accomplish in a realistic manner, the letter and spirit of the mandate to dismantle the remaining vestiges of law imposed segregation, root and branch and will at the same time improve the quality of education, what more does the law demand of its citizenship.

Thank you.

Warren E. Burger:

Thank you.

Thank you gentlemen.

The case is submitted.