author: Mr. Justice Douglas Mr. Justice Stewart Mr. Justice Harlan,

text:
    NATIONAL LABOR RELATIONS BOARD v. INDUSTRIAL UNION OF MARINE & SHIPBUILDING WORKERS OF AMERICA, AFL-CIO, et al.
    No. 796.
    Argued April 30, 1968.
    Decided May 27, 1968.

      Norton J. Come argued the cause for petitioner. With him on the brief were Solicitor General Griswold, Arnold Ordman, and Dominick L. Manoli.

      M. H. Goldstein argued the cause and filed a brief for respondents.

      Kenneth C. McGuiness and Stanley R. Strauss filed a brief for Price, as amicus curiae, urging reversal.
    /. Albert Woll, Laurence Gold, and Thomas E. Harris filed a brief for the American Federation of Labor and Congress of Industrial Organizations, as amicus curiae, urging affirmance.
   Mr. Justice Douglas

delivered the opinion of the Court.

One Holder, a member of respondent unions, filed with the National Labor Relations Board an unfair labor practice charge, alleging that Local 22 had violated § 8 (b)(1)(A) of the National Labor Relations Act, 61 Stat. 141, 29 U. S. C. § 158 (b)(1)(A), by causing his employer to discriminate against him because he had engaged in protected activity with respect to his employment. The filing of this charge followed an accusation by Holder to Local 22 that its president had violated the constitution of the International. The local decided in favor of its president; but Holder did not pursue the intra-union appeals procedure that was available to him and filed the unfair labor practice charge instead, based on the same alleged violations by the president.

Section 5 of Article V of the constitution of the International Union, which was binding on Local 22, contained the following provision relative to grievances of union members:

“Every member . . . considering himself . . . aggrieved by any action of this Union, the [General Executive Board], a National Officer, a Local or other subdivision of this Union shall exhaust all remedies and appeals within the Union, provided by this Constitution, before he shall resort to any court or other tribunal outside of the Union.”

While Holder’s charge was pending before the Board, Local 22 lodged a complaint in internal union proceedings against Holder alleging he had violated § 5 of Article Y of the International’s constitution by filing his charge with the Board before he had exhausted his internal remedies. After a hearing before Local 22, Holder was found guilty and expelled from both respondent unions. He then appealed to the General Executive Board of the International which affirmed the local’s action on October 7, 1964.

On October 28, 1964, Holder filed a second charge with the Board, claiming his expulsion for filing the first charge was unlawful. That charge is the basis of the instant case.

A complaint issued; and the Board found that the respondent unions had violated §8 (b)(1)(A) of the Act by expelling Holder for filing a charge with the Board without first having exhausted the intra-union procedures. 159 N. L. R. B. 1065. It issued a remedial order, which the Court of Appeals refused to enforce. 379 F. 2d 702. The case is here on writ of certiorari. 389 U. S. 1034.

The important question is whether consistent with the applicable federal statutes a union may penalize one of its members for seeking the aid of the Board without exhausting all internal union remedies. There is a threshold question, however, concerning the adequacy of Holder’s first or original charge to the Board against respondents. Holder charged discrimination practiced against him because, to use the words of the Regional Director as he paraphrased the charge in the complaint, Holder had engaged “in certain protected activity” of an unspecified nature “with respect to his employment.” It is pointed out that § 8 (b)(1)(A) protects only “the exercise of rights guaranteed by section 7”; and that § 7 “says nothing about any right to file charges with the Board.” 379 F. 2d, at 706. That, however, is not the issue. The charge by Holder that he was discriminated against because he had engaged “in certain protected activity” was a sufficent way to allege an impairment of § 7 rights. “The charge is not proof. It merely sets in motion the machinery of an inquiry.” NLRB v. Indiana & Michigan Electric Co., 318 U. S. 9, 18. Moreover, no issue' was raised before the Board concerning the nature of the “protected activity.” The answer of respondents insofar as the original charge is concerned said only that the charge made by Holder to the Board was based upon precisely the same facts as those on which his internal union charges against the president of the Local had been based. We must, therefore, assume that the initial charge was one within the ambit of § 7 and so plainly within it that no party undertook to question it.

The main issue in the case is whether Holder could be expelled for filing the charge with the Board without first having exhausted “all remedies and appeals within the Union” as provided in § 5 of Article V of the constitution, already quoted.

Section 8(b)(1)(A) in its proviso preserves to a union “the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein.”

The Court of Appeals concluded that while this proviso would not permit a union to expel a member because he filed an unfair labor practice charge against the union, it permits a rule which gives the union “a fair opportunity to correct its own wrong before the injured member should have recourse to the Board.” 379 F. 2d, at 707.

We held in NLRB v. Allis-Chalmers Mfg. Co., 388 U. S. 175, that § 8 (b)(1)(A) does not prevent a union from imposing fines on members who cross a picket line created to implement an authorized strike. The strike, we said, “is the ultimate weapon in labor’s arsenal for achieving agreement upon its terms” and the power to fine or expel a strikebreaker “ 'is essential if the union is to be an effective bargaining agent.’ ” Id., at 181.

Thus §8 (b)(1)(A) assures a union freedom of self-regulation where its legitimate internal affairs are concerned. But where a union rule penalizes a member for filing an unfair labor practice charge with the Board, other considerations of public policy come into play.

Section 10 (b) of the Act, 61 Stat. 146, 29 U. S. C. § 160 (b), forbids issuance of a complaint based on conduct occurring more than six months prior to filing of the charge — a provision promoting promptness. A proceeding by the Board is not to adjudicate private rights but to effectuate a public policy. The Board cannot initiate its own proceedings; implementation of the Act is dependent “upon the initiative of individual persons.” Nash v. Florida Industrial Comm’n, 389 U. S. 235, 238. The policy of keeping people “completely free from coercion,” ibid., against making complaints to the Board is therefore important in the functioning of the Act as an organic whole. A restriction such as we find in § 5 of Article V of the International’s constitution is contrary to that policy, as it is applied here. A healthy interplay of the forces governed and protected by the Act means that there should be as great a freedom to ask the Board for relief as there is to petition any other department of government for a redress of grievances. Any coercion used to discourage, retard, or defeat that access is beyond the legitimate interests of a labor organization. That was the philosophy of the Board in the Skura case, Local 138, International Union of Operating Engineers, 148 N. L. R. B. 679; and we agree that the overriding public interest makes unimpeded access to the Board the only healthy alternative, except and unless plainly internal affairs of the union are involved.

In the present case a whole complex of public policy-issues was raised by Holder’s original charge. It implicated not only the union but the employer. The employer might also have been made a party and comprehensive and coordinated remedies provided. Those issues cannot be fully explored in an internal union proceeding. There cannot be any justification to make the public processes wait until the union member exhausts internal procedures plainly inadequate to deal with all phases of the complex problem concerning employer, union, and employee member. If the member becomes exhausted, instead of the remedies, the issues of public policy are never reached and an airing of the grievance never had. The Court of Appeals recognized that this might be the consequence and said that resort to an intra-union remedy would not be required if it “would impose unreasonable delay or hardship upon the complainant.” 379 F. 2d, at 707.

The difficulty is that a member would have to guess what a court ultimately would hold. If he guessed wrong and filed the charge with the Board without exhausting internal union procedures, he would have no recourse against the discipline of the union. That risk alone is likely to chill the exercise of a member’s right to a Board remedy and induce him to forgo his grievance or pursue a futile union procedure. That is the judgment of the Board; and we think it comports with the policy of the Act. That is to say, the proviso in § 8 (b)(1)(A) that unions may design their own rules respecting “the acquisition or retention of membership” is not so broad as to give the union power to penalize a member who invokes the protection of the Act for a matter that is in the public domain and beyond the internal affairs of the union.

The Court of Appeals found, support for its contrary position in § 101 (a) (4) of the Labor-Management Reporting and Disclosure Act of 1959. 73 Stat. 522, 29 U. S. C. §411 (a)(4). While that provision prohibits a union from limiting the right of a member to institute an action in any court or in a proceeding before any administrative agency, it provides that a member “may be required to exhaust reasonable hearing procedures” “not to exceed a four-month lapse of time.”

We conclude that “may be required” is not a grant of authority to unions more firmly to police their members but a statement of policy that the public tribunals whose aid is invoked may in their discretion stay their hands for four months, while the aggrieved person seeks relief within the union. We read it, in other words, as installing in this labor field a regime comparable to that which prevails in other areas of law before the federal courts, which often stay their hands while a litigant seeks administrative relief before the appropriate agency.

The legislative history is not very illuminating. Some members of the House who spoke indicated that there was room for judicial discretion whether to remit the member to available internal union remedies. In the Senate the fear was expressed that the new section would give unions power to punish their members for filing charges with the Board prior to exhaustion of their internal remedies. In the Senate the continuance of union grievance procedures under the new section was emphasized. It was indeed expressly stated by Senator John F. Kennedy reporting from the Conference Committee:

“The 4-month limitation in the House bill also relates to restrictions imposed by unions rather than the rules of judicial administration or the action of Government agencies.”

Yet it plainly appears from those speaking for the Conference Report that a member was to be permitted to complain to the Board even before the end of the four-month period. Congressman Griffin reported:

“[T]he proviso was not intended to limit in any way the right of a union member under the Labor-Management Relations Act of 1947, as amended, to file unfair labor practice charges against a union, or the right of the NLRB to entertain such charges, even though a 4-month period may not have elapsed.”

And on the Senate side, Senator Kennedy said that the proviso was not intended “to invalidate the considerable body of State and Federal court decisions of many years standing which require, nr do not require, the exhaustion of internal remedies prior to court intervention depending upon the reasonableness of such requirements in terms of the facts and circumstances of a particular case.” (Emphasis added.) Nor, he said, was it intended to prohibit “the National Labor Relations Board . . . from entertaining charges by a member against a labor organization even though 4 months has not elapsed.”

We conclude that unions were authorized to have hearing procedures for processing grievances of members, provided those procedures did not consume more than four months of time; but that a court or agency might consider whether a particular procedure was “reasonable” and entertain the complaint even though those procedures had not been “exhausted.” We also conclude, for reasons stated earlier in this opinion, that where the complaint or grievance does not concern an internal union matter, but touches a part of the public domain covered by the Act, failure to resort to any intra-union grievance procedure is not ground for expulsion from a union. We hold that the Board properly entertained the complaint of Holder and that its order should be enforced.

Reversed.

Mr. Justice Stewart

dissents. He would affirm the judgment, agreeing substantially with the opinion of the Court of Appeals for the Third Circuit. 379 F. 2d 702.

Mr. Justice Harlan,

concurring.

I am persuaded by the legislative history, summarized in part by the Court, that the proviso to § 101 (a) (4) of the Labor-Management Reporting and Disclosure Act, 29 U. S. C. § 411 (a)(4), was intended simply to permit a court or agency to require a union member to exhaust internal union remedies of less than four months’ duration before invoking outside assistance. See generally Detroy v. American Guild of Variety Artists, 286 F. 2d 75, 78. I cannot, however, agree that a union may punish a member for his invocation of his remedies before a court or agency “where the complaint or grievance . . . concern [s] an internal union matter,” and thus does not touch any “part of the public domain covered by the Act ...” Ante, at 428. Assuming arguendo that there are member-union grievances untouched by the various federal labor statutes, this dichotomy has, it seems to me, precisely the disadvantage that the Court has found in the Third Circuit’s construction of the proviso: it compels a member to gamble his union membership, and often his employment, on the accuracy of his understanding of the federal labor laws.

Finally, it is appropriate to emphasize that courts and agencies will frustrate an important purpose of the 1959 legislation if they do not, in fact, regularly compel union members “to exhaust reasonable hearing procedures” within the union organization. Responsible union self-government demands, among other prerequisites, a fair opportunity to function. See Detroy v. American Guild of Variety Artists, supra, at 79.

With these modifications, I concur in the opinion and judgment of the Court.

       Section 8 (b) provides in part: “It shall be an unfair labor practice for a labor organization or its agents—
      “(1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 7: Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein . . . .”
      Section 7, 61 Stat. 140, 29 U. S. C. § 157, contains the following guarantee of rights: “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8 (a) (3).”

       This charge, filed with the Board February 28, 1964, was directed solely against respondent International Union and alleged that:
      "On or about October 8, 196 [3], the above named labor organization caused the United States Lines [employer] to discriminate against Edwin D. Holder because he engaged in concerted activities with respect to the conditions of his employment.
      “By these and other acts, the above named labor organization has interfered with, restrained and coerced, and continues to interfere with, restrain and coerce the Company’s employees in the exercise of rights guaranteed in Section 7 of the Act.”
      By letter of May 20, 1964, the Regional Director informed Holder that this charge was dismissed.

       N. 1, supra.

        These remedies are provided for in § 3 of Article V of the constitution:
      “No Union member in good standing in any Local may be suspended or expelled or otherwise disciplined or penalized without a fair and open trial, of which reasonable notice shall be given the accused member, before the Trial Board of the Local Union . . . . The accused member or members or the accusers may appeal the decision of the local Union’s Executive Board to the regular meeting of the General Membership of the Local Union next following the meeting of the Executive Board at which the decision was rendered, and within thirty (30) days after the membership’s decision may appeal to the General Executive Board. The General Executive Board shall, after reasonable notice to the appellant of the time and place of hearing, hold a fair and open hearing on such appeal and, not later than 130 days after the first regular meeting of the General Executive Board following receipt of the appeal at the National Office, and in any event not later than the first day of the National Convention, shall render its decision affirming, overruling, or modifying either the findings of guilt or innocence, or the penalty imposed. Both the accused and the accuser shall have the right to file an appeal to the next National Convention by sending such appeal to the National Office of this Union by registered mail not later than thirty days after the decision by the General Executive Board.”
      Although Holder did not take any internal appeal from the local’s original adverse decision on his charge to it against the president, he did appeal his expulsion to the General Executive Board of the International, which affirmed.

       N. 1, supra.

       See Cox, Internal Affairs of Labor Unions under the Labor Reform Act of 1959, 58 Mich. L. Rev. 819, 839 (1960); Summers, Legal Limitations in Union Discipline, 64 Harv. L. Rev. 1049, 1067-1068 (1951); Summers, The Usefulness of Law in Achieving Union Democracy, 48 Am. Econ. Rev. 44, 47 (May 1958).

         Section 101 (a)(4) provides: “No labor organization shall limit the right of any member thereof to institute an action in any court, or in a proceeding before any administrative agency ... or the right of any member of a labor organization to appear as a witness in any judicial, administrative, or legislative proceeding, or to petition any legislature or to communicate with any legislator: Provided, That any such member may be required to exhaust reasonable hearing procedures (but not to exceed a four-month lapse of time) within such organization, before instituting legal or administrative proceedings . . . .”

       See Myers v. Bethlehem Shipbuilding Corp., 303 U. S. 41; compare Railroad Comm’n v. Pullman Co., 312 U. S. 496. The requirement of exhaustion is a matter within the sound discretion of the courts. See, e. g., McCulloch v. Sociedad Nacional, 372 U. S. 10, 16-17. And see Leedom v. Kyne, 358 U. S. 184, 188-189; California Comm’n v. United States, 355 U. S. 534, 539-540. Exhaustion is not required when the administrative remedies are inadequate. Greene v. United States, 376 U. S. 149; McNeese v. Board of Education, 373 U. S. 668. See generally 3 K. Davis, Administrative Law Treatise §20.07 (1958). When the complaint, as in the instant case, raises a matter that is in the public domain and beyond the internal affairs of the union, the union’s internal procedures are, as previously explained, plainly inadequate.

       105 Cong. Rec. 15835 (McConnack); id., at 15689-15690 (O’Hara); id., at 15563 (Foley).

       105 Cong. Rec. 10095 (Goldwater).

       105 Cong. Rec. 17899 (John F. Kennedy).

       105 Cong. Rec. 17899.

       105 Cong. Rec. 18152.

       105 Cong. Reo. 17899.

      It should be noted that many union constitutions have elaborate provisions for internal appeals, and that these provisions were often added or modified as a consequence of §101 (a)(4). See Kroner, Title I of the LMRDA: Some Problems of Legal Method and Mythology, 43 N. Y. U. L. Rev. 280, 302, n. 72.


source: Caselaw Access Project

author: Mr. Justice Brennan

license: Public Domain

text:
    GREEN et al. v. COUNTY SCHOOL BOARD OF NEW KENT COUNTY et al.
    No. 695.
    Argued April 3, 1968.
    Decided May 27, 1968.

      Samuel W. Tucker and Jack Greenberg argued the cause for petitioners. With them on the brief were James M. Nabrit III, Henry L. Marsh 111, and Michael Meltsner.

      Frederick T. Gray argued the cause for respondents. With him on the brief were Robert Y. Button, Attorney-General of Virginia, Robert D. Mcllwaine III, First Assistant Attorney General, and Walter E. Rogers.

      Louis F. Claiborne argued the cause for the United States, as amicus curiae. With him on the brief were Solicitor General Griswold, Assistant Attorney General Poliak, Lawrence G. Wallace, and Brian K. Landsberg.

      Joseph B. Robison filed a brief for the American Jewish Congress, as amicus curiae, urging reversal.
   Mr. Justice Brennan

delivered the opinion of the Court.

The question for decision is whether, under all the circumstances here, respondent School Board’s adoption of a “freedom-of-choice” plan which allows a pupil to choose his own public school constitutes adequate compliance with the Board’s responsibility “to achieve a system of determining admission to the public schools on a nonracial basis . . . .” Brown v. Board of Education, 349 U. S. 294, 300-301 (Brown II).

Petitioners brought this action in March 1965 seeking injunctive relief against respondent’s continued maintenance of an alleged racially segregated school system. New Kent County is a rural county in Eastern Virginia. About one-half of its population of some 4,500 are Negroes. There is no residential segregation in the county; persons of both races reside throughout. The school system has only two schools, the New Kent school on the east side of the county and the George W. Watkins school on the west side. In a memorandum filed May 17, 1966, the District Court found that the “school system serves approximately 1,300 pupils, of which 740 are Negro and 550 are White. The School Board operates one white combined elementary and high school [New Kent], and one Negro combined elementary and high school [George W. Watkins]. There are no attendance zones. Each school serves the entire county.” The record indicates that 21 school buses — 11 serving the Watkins school and 10 serving the New Kent school — travel overlapping routes throughout the county to transport pupils to and from the two schools.

The segregated system was initially established and maintained under the compulsion of Virginia constitutional and statutory provisions mandating racial segregation in public education, Va. Const., Art. IX, § 140 (1902); Va. Code § 22-221 (1950). These provisions were held to violate the Federal Constitution in Davis v. County School Board of Prince Edward County, decided with Brown v. Board of Education, 347 U. S. 483, 487 (Brown I). The respondent School Board continued the segregated operation of the system after the Brown decisions, presumably on the authority of several statutes enacted by Virginia in resistance to those decisions. Some of these statutes were held to be unconstitutional on their face or as applied. One statute, the Pupil Placement Act, Va. Code §22-232.1 et seq. (1964), not repealed until 1966, divested local boards of authority to assign children to particular schools and placed that authority in a State Pupil Placement Board. Under that Act children were each year automatically reassigned to the school previously attended unless upon their application the State Board assigned them to another school; students seeking enrollment for the first time were also assigned at the discretion of the State Board. To September 1964, no Negro pupil had applied for admission to the New Kent school under this statute and no white pupil had applied for admission to the Watkins school.

The School Board initially sought dismissal of this suit on the ground that petitioners had failed to apply to the State Board for assignment to New Kent school. However on August 2, 1965, five months after the suit was brought, respondent School Board, in order to remain eligible for federal financial aid, adopted a “freedom-of-choice” plan for desegregating the schools. Under that plan, each pupil, except those entering the first and eighth grades, may annually choose between the New Kent and Watkins schools and pupils not making a choice are assigned to the school previously attended; first and eighth grade pupils must affirmatively choose a school. After the plan was filed the District Court denied petitioners’ prayer for an injunction and granted respondent leave to submit an amendment to the plan with respect to employment and assignment of teachers and staff on a racially nondiscriminatory basis. The amendment was duly filed and on June 28, 1966, the District Court approved the “freedom-of-choice” plan as so amended. The Court of Appeals for the Fourth Circuit, en banc, 382 F. 2d 338, affirmed the District Court’s approval of the “freedom-of-choice” provisions of the plan but remanded the case to the District Court for entry of an order regarding faculty “which is much more specific and more comprehensive” and which would incorporate in addition to a “minimal, objective time table” some of the faculty provisions of the decree entered by the Court of Appeals for the Fifth Circuit in United States v. Jefferson County Board of Education, 372 F. 2d 836, aff’d en banc, 380 F. 2d 385 (1967). Judges Sobeloff and Winter concurred with the remand on the teacher issue but otherwise disagreed, expressing the view “that the District Court should be directed . . . also to set up procedures for periodically evaluating the effectiveness of the [Board’s] ‘freedom of choice’ [plan] in the elimination of other features of a segregated school system.” Bowman v. County School Board of Charles City County, 382 F. 2d 326, at 330. We granted certiorari, 389 U. S. 1003.

The pattern of separate “white” and “Negro” schools in the New Kent County school system established under compulsion of state laws is precisely the pattern of segregation to which Brown I and Brown II were particularly addressed, and which Brown I declared unconstitutionally denied Negro school children equal protection of the laws. Racial identification of the system’s schools was complete, extending not just to the composition of student bodies at the two schools but to every facet of school operations — faculty, staff, transportation, extracurricular activities and facilities. In short, the State, acting through the local school board and school officials, organized and operated a dual system, part “white” and part “Negro.”

It was such dual systems that 14 years ago Brown I held unconstitutional and a year later Brown II held must be abolished; school boards operating such school systems were required by Brown II “to effectuate a transition to a racially nondiscriminatory school system.” 349 U. S., at 301. It is of course true that for the time immediately after Brown II the concern was with making an initial break in a long-established pattern of excluding Negro children from schools attended by white children. The principal focus was on obtaining for those Negro children courageous enough to break with tradition a place in the “white” schools. See, e. g., Cooper v. Aaron, 358 U. S. 1. Under Brown II that immediate goal was only the first step, however. The transition to a unitary, nonracial system of public education was and is the ultimate end to be brought about; it was because of the “complexities arising from the transition to a system of public education freed of racial discrimination” that we provided for “all deliberate speed” in the implementation of the principles of Brown I. 349 U. S., at 299-301. Thus we recognized the task would necessarily involve solution of “varied local school problems.” Id., at 299. In referring to the “personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis,” we also noted that “[t]o effectuate this interest may call for elimination of a variety of obstacles in making the transition . . . .” Id., at 300. Yet we emphasized that the constitutional rights of Negro children required school officials to bear the burden of establishing that additional time to carry out the ruling in an effective manner “is necessary in the public interest and is consistent with good faith compliance at the earliest practicable date.” Ibid. We charged the district courts in their review of particular situations to

“consider problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis, and revision of local laws and regulations which may be necessary in solving the foregoing problems. They will also consider the adequacy of any plans the defendants may propose to meet these problems and to effectuate a transition to a racially nondiscriminatory school system.” Id., at 300-301.

It is against this background that 13 years after Brown II commanded the abolition of dual systems we must measure the effectiveness of respondent School Board’s “freedom-of-choice” plan to achieve that end. The School Board contends that it has fully discharged its obligation by adopting a plan by which every student, regardless of race, may “freely” choose the school he will attend. The Board attempts to cast the issue in its broadest form by arguing that its “freedom-of-choice” plan may be faulted only by reading the Fourteenth Amendment as universally requiring “compulsory integration,” a reading it insists the wording of the Amendment will not support. But that argument ignores the thrust of Brown II. In the light of the command of that case, what is involved here is the question whether the Board has achieved the “racially nondiscriminatory school system” Brown II held must be effectuated in order to remedy the established unconstitutional deficiencies of its segregated system. In the context of the state-imposed segregated pattern of long standing, the fact that in 1965 the Board opened the doors of the former “white” school to Negro children and of the “Negro” school to white children merely begins, not ends, our inquiry whether the Board has taken steps adequate to abolish its dual, segregated system. Brown II was a call for the dismantling of well-entrenched dual systems tempered by an awareness that complex and multifaceted problems would arise which would require time and flexibility for a successful resolution. School boards such as the respondent then operating state-compelled dual systems were nevertheless clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch. See Cooper v. Aaron, supra, at 7; Bradley v. School Board, 382 U. S. 103; cf. Watson v. City of Memphis, 373 TJ. S. 526. The constitutional rights of Negro school children articulated in Brown I permit no less than this; and it was to this end that Brown II commanded school boards to bend their efforts.

In determining whether respondent School Board met that command by adopting its “freedom-of-choice” plan, it is relevant that this first step did not come until some 11 years after Brown I was decided and 10 years after Brown II directed the making of a “prompt and reasonable start.” This deliberate perpetuation of the unconstitutional dual system can only have compounded the harm of such a system. Such delays are no longer tolerable, for “the governing constitutional principles no longer bear the imprint of newly enunciated doctrine.” Watson v. City of Memphis, supra, at 529; see Bradley v. School Board, supra; Rogers v. Paul, 382 TJ. S. 198. Moreover, a plan that at this late date fails to provide meaningful assurance of prompt and effective disestablishment of a dual system is also intolerable. “The time for mere ‘deliberate speed’ has run out,” Griffin v. County School Board, 377 U. S. 218, 234; “the context in which we must interpret and apply this language [of Brown II] to plans for desegregation has been significantly altered.” Goss v. Board of Education, 373 U. S. 683, 689. See Calhoun v. Latimer, 377 U. S. 263. The burden on a school board today is to come forward with a plan that promises realistically to work, and promises realistically to work now.

The obligation of the district courts, as it always has been, is to assess the effectiveness of a proposed plan in achieving desegregation. There is no universal answer to complex problems of desegregation; there is obviously no one plan that will do the job in every case. The matter must be assessed in light of the circumstances present and the options available in each instance. It is incumbent upon the school board to establish that its proposed plan promises meaningful and immediate progress toward disestablishing state-imposed segregation. It is incumbent upon the district court to weigh that claim in light of the facts at hand and in light of any alternatives which may be shown as feasible and more promising in their effectiveness. Where the court finds the board to be acting in good faith and the proposed plan to have real prospects for dismantling the state-imposed dual system “at the earliest practicable date,” then the plan may be said to provide effective relief. Of course, the availability to the board of other more promising courses of action may indicate a lack of good faith; and at the least it places a heavy burden upon the board to explain its preference for an apparently less effective method. Moreover, whatever plan is adopted will require evaluation in practice, and the court should retain jurisdiction until it is clear that state-imposed segregation has been completely removed. See No. 805, Raney v. Board of Education, post, at 449.

We do not hold that “freedom of choice” can have no place in such a plan. We do not hold that a “freedom-of-choice” plan might of itself be unconstitutional, although that argument has been urged upon us. Rather, all we decide today is that in desegregating a dual system a plan utilizing “freedom of choice” is not an end in itself. As Judge Sobeloff has put it,

“'Freedom of choice’ is not a sacred talisman; it is only a means to a constitutionally required end — the abolition of the system of segregation and its effects. If the means prove effective, it is acceptable, but if it fails to undo segregation, other means must be used to achieve this end. The school officials have the continuing duty to take whatever action may be necessary to create a ‘unitary, nonracial system.’ ” Bowman v. County School Board, 382 F. 2d 326, 333 (C. A. 4th Cir. 1967) (concurring opinion).

Accord, Kemp v. Beasley, 389 F. 2d 178 (C. A. 8th Cir. 1968); United States v. Jefferson County Board of Education, supra. Although the general experience under “freedom of choice” to date has been such as to indicate its ineffectiveness as a tool of desegregation, there may well be instances in which it can serve as an effective device. Where it offers real promise of aiding a desegregation program to effectuate conversion of a state-imposed dual system to a unitary, nonracial system there might be no objection to allowing such a device to prove itself in operation. On the other hand, if there are reasonably available other ways, such for illustration as zoning, promising speedier and more effective conversion to a unitary, nonracial school system, “freedom of choice” must be held unacceptable.

The New Kent School Board’s “freedom-of-choice” plan cannot be accepted as a sufficient step to “effectuate a transition” to a unitary system. In three years of operation not a single white child has chosen to attend Watkins school and although 115 Negro children enrolled in New Kent school in 1967 (up from 35 in 1965 and 111 in 1966) 85% of the Negro children in the system still attend the all-Negro Watkins school. In other words, the school system remains a dual system. Rather than further the dismantling of the dual system, the plan has operated simply to burden children and their parents with a responsibility which Brown II placed squarely on the School Board. The Board must be required to formulate a new plan and, in light of other courses which appear open to the Board, such as zoning, fashion steps which promise realistically to convert promptly to a system without a “white” school and a “Negro” school, but just schools.

The judgment of the Court of Appeals is vacated insofar as it affirmed the District Court and the case is remanded to the District Court for further proceedings consistent with this opinion.

It is so ordered.

         E. g., Griffin v. County School Board of Prince Edward County, 377 U. S. 218; Green v. School Board of City of Roanoke, 304 F. 2d 118 (C. A. 4th Cir. 1962); Adkins v. School Board of City of Newport News, 148 F. Supp. 430 (D. C. E. D. Va.), aff'd, 246 F. 2d 325 (C. A. 4th Cir. 1957); James v. Almond, 170 F. Supp. 331 (D. C. E. D. Va. 1959); Harrison v. Day, 200 Va. 439, 106 S. E. 2d 636 (1959).

       Congress, concerned with the lack of progress in school desegregation, included provisions in the Civil Rights Act of 1964 to deal with the problem through various agencies of the Federal Government. 78 Stat. 246, 252, 266, 42 U. S. C. §§ 2000c et seq., 2000d et seq., 2000h-2. In Title VI Congress declared that
      “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U. S. C. § 2000d.
      The Department of Health, Education, and Welfare issued regulations covering racial discrimination in federally aided school systems, as directed by 42 U. S. C. § 2000d-l, and in a statement of policies, or “guidelines,” the Department’s Office of Education established standards according to which school systems in the process of desegregation can remain qualified for federal funds. 45 CFR §§ 80.1-80.13, 181.1-181.76 (1967). “Freedom-of-choice” plans are among those considered acceptable, so long as in operation such a plan proves effective. 45 CFR § 181.54. The regulations provide that a school system “subject to a final order of a court of the United States for the desegregation of such school . . . system” with which the system agrees to comply is deemed to be in compliance with the statute and regulations. 45 CFR § 80.4(c). See also 45 CFR §181.6. See generally Dunn, Title VI, the Guidelines and School Desegregation in the South, 53 Va. L. Rev. 42 (1967); Note, 55 Geo. L. J. 325 (1966); Comment, 77 Yale L. J. 321 (1967).

       This case was decided per curiam on the basis of the opinion in Bowman v. County School Board of Charles City County, 382 F. 2d 326, decided the same day. Certiorari has not been sought for the Bowman case itself.

       “We bear in mind that the court has not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future.” Louisiana v. United States, 380 U. S. 145, 154. Compare the remedies discussed in, e. g., NLRB v. Newport News Shipbuilding & Dry Dock Co., 308 U. S. 241; United States v. Crescent Amusement Co., 323 U. S. 173; Standard Oil Co. v. United States, 221 U. S. 1. See also Griffin v. County School Board, 377 U. S. 218, 232-234.

       The views of the United States Commission on Civil Rights, which we neither adopt nor refuse to adopt, are as follows:
      “Freedom of choice plans, which have tended to perpetuate racially identifiable schools in the Southern and border States, require affirmative action by both Negro and white parents and pupils before such disestablishment can be achieved. There are a number of factors which have prevented such affirmative action by substantial numbers of parents and pupils of both races:
      “(a) Fear of retaliation and hostility from the white community continue to deter many Negro families from choosing formerly all-white schools;
      “(b) During the past school year [1966-1967], as in the previous year, in some areas of the South, Negro families with children attending previously all-white schools under free choice plans were targets of violence, threats of violence and economic reprisal by white persons and Negro children were subjected to harassment by white classmates notwithstanding conscientious efforts by many teachers and principals to prevent such misconduct;
      “(c) During the past school year, in some areas of the South public officials improperly influenced Negro families to keep their children in Negro schools and excluded Negro children attending formerly all-white schools from official functions;
      “(d) Poverty deters many Negro families in the South from choosing formerly all-white schools. Some Negro parents are embarrassed to permit their children to attend such schools without suitable clothing. In some districts special fees are assessed for courses which are available only in the white schools;
      “(e) Improvements in facilities and equipment . . . have been instituted in all-Negro schools in some school districts in a manner that tends to discourage Negroes from selecting white schools.”
      Southern School Desegregation, 1966-1967, at 88 (1967). See id,., at 45-69; Survey of School Desegregation in the Southern and Border States 1965-1966, at 30-44, 51-52 (U. S. Comm’n on Civil Rights 1966).

       “In view of the situation found in New Kent County, where there is no residential segregation, the elimination of the dual school system and the establishment of a 'unitary, non-racial system’ could be readily achieved with a minimum of administrative difficulty by means of geographic zoning — simply by assigning students living in the eastern half of the county to the New Kent School and those living in the western half of the county to the Watkins School. Although a geographical formula is not universally appropriate, it is evident that here the Board, by separately busing Negro children across the entire county to the 'Negro’ school, and the white children to the 'white’ school, is deliberately maintaining a segregated system which would vanish with non-racial geographic zoning. The conditions in this county present a classical case for this expedient.” Bowman v. County School Board, supra, n. 3, at 332 (concurring opinion).
      Petitioners have also suggested that the Board could consolidate the two schools, one site {e. g., Watkins) serving grades 1-7 and the other (e. g., New Kent) serving grades 8-12, this being the grade division respondent makes between elementary and secondary levels. Petitioners contend this would result in a more efficient system by eliminating costly duplication in this relatively small district while at the same time achieving immediate dismantling of the dual system.
      These are two suggestions the District Court should take into account upon remand, along with any other proposed alternatives and in light of considerations respecting other aspects of the school system such as the matter of faculty and staff desegregation remanded to the court by the Court of Appeals.


author: Me. Justice Brennan

text:
    RANEY et al. v. BOARD OF EDUCATION OF THE GOULD SCHOOL DISTRICT et al.
    No. 805.
    Argued April 3, 1968.
    Decided May 27, 1968.

      Jack Greenberg argued the cause for petitioners. With him on the brief were James M. Nabrit III and Michael Meltsner.

      Robert V. Light argued the cause for respondents. With him on the brief was Herschel H. Friday.

      Louis F. Claiborne argued the cause for the United States, as amicus curiae. With him on the brief were Solicitor General Griswold, Assistant Attorney General Poliak, Lawrence G. Wallace, and Brian K. Landsberg.

   Me. Justice Brennan

delivered the opinion of the Court.

This case presents the question of the adequacy of a “freedom-of-choice” plan as compliance with Brown v. Board of Education, 349 U. S. 294 (Brown II), a question also considered today in No. 695, Green v. County School Board of New Kent County, ante, p. 430. The factual setting is very similar to that in Green.

This action was brought in September 1965 in the District Court for the Eastern District of Arkansas. Injunctive relief was sought against the continued maintenance by respondent Board of Education of an alleged racially segregated school system. The school district has an area of 80 square miles and a population of some 3,000, of whom 1,800 are Negroes and 1,200 are whites. Persons of both races reside throughout the county; there is no residential segregation. The school system consists of two combination elementary and high schools located about 10 blocks apart in Gould, the district’s only major town. One combination, the Gould Schools, is almost all white and the other, the Field Schools, is all-Negro. In the 1964-1965 school year the schools were totally segregated; 580 Negro children attended the Field Schools and 300 white children attended the Gould Schools. Faculties and staffs were and are segregated. There are no attendance zones, each school complex providing any necessary bus transportation for its respective pupils.

The state-imposed segregated system existed at the time of the decisions in Brown v. Board of Education, 347 U. S. 483, 349 U. S. 294. Thereafter racial separation was required by School Board policy. As in Green, respondent first took steps in 1965 to abandon that policy to remain eligible for federal financial aid. The Board adopted a “freedom-of-choice” plan embodying the essentials of the plan considered in Green. It was made immediately applicable to all grades. Pupils are required to choose annually between the Gould Schools and the Field Schools and those not exercising a choice are assigned to the school previously attended.

The experience after three years of operation with “freedom of choice” has mirrored that in Green. Not a single white child has sought to enroll in the all-Negro Field Schools, and although some 80 to 85 Negro children were enrolled in the Gould Schools in 1967, over 85% of the Negro children in the system still attend the all-Negro Field Schools.

This litigation resulted from a problem that arose in the operation of the plan in its first year. The number of children applying for enrollment in the fifth, tenth, and eleventh grades at Gould exceeded the number of places available and applications of 28 Negroes for those grades were refused. This action was thereupon filed on behalf of 16 of these children and others similarly situated. Their complaint sought injunctive relief, among other things, against their being required to attend the Field Schools, against the provision by respondent of public school facilities for Negro pupils inferior to those provided for white pupils, and against respondent’s “otherwise operating a racially segregated school system.” While the case was pending in the District Court, respondent made plans to replace the high school building at Field Schools. Petitioners sought unsuccessfully to enjoin construction at that site, contending that the new high school should be built at the Gould site to avoid perpetuation of the segregated system. Thereafter the District Court, in an unreported opinion, denied all relief and dismissed the complaint. In the District Court’s view the fact that respondent had adopted “freedom of choice” without the compulsion of a court order, that the plan was approved by the Department of Health, Education, and Welfare, and that some Negro pupils had enrolled in the Gould Schools “seems to indicate that this plan is more than a pretense or sham to meet the minimum requirements of the law.” In light of this conclusion the District Court held that petitioners were not entitled to the other relief requested, including an injunction against building the new high school at the Field site. The Court of Appeals for the Eighth Circuit affirmed the dismissal. 381 F. 2d 252. We granted certiorari, 389 U. S. 1034, and set the case for argument following No. 740, Monroe v. Board of Commissioners of the City of Jackson, post, p. 450.

The Court of Appeals suggested that “no issue on the adequacy of the plan adopted by the Board or its implementation was raised in the District Court. Issues not fairly raised in the District Court cannot ordinarily be considered upon appeal.” 381 F. 2d, at 257. Insofar as this refers to the “freedom-of-choice” plan the suggestion is refuted by the record. Not only was the issue embraced by the prayer in petitioners’ complaint for an injunction against respondent “otherwise operating a racially segregated school system” but the adequacy of the plan was tried and argued by the parties and decided by the District Court. Moreover, the Court of Appeals went on to consider the merits, holding, in agreement with the District Court, that “we find no substantial evidence to support a finding that the Board was not proceeding to carry out the plan in good faith.” Ibid. In the circumstances the question of the adequacy of “freedom of choice” is properly before us. On the merits, our decision in Green v. County School Board, supra, establishes that the plan is inadequate to convert to a unitary, nonracial school system. As in Green, “the school system remains a dual system. Rather than further the dismantling of the dual system, the plan has operated simply to burden children and their parents with a responsibility which Brown II placed squarely on the School Board. The Board must be required to formulate a new plan and, in light of other courses which appear open to the Board, such as zoning, fashion steps which promise realistically to convert promptly to a system without a 'white’ school and a ‘Negro’ school, but just schools.” Id., at 441-442.

The petitioners did not press in the Court of Appeals their appeal from the denial of their prayer to have the new high school facilities constructed at the Gould Schools site rather than at the Field Schools site. Due to the illness of the court reporter there was delay in the filing of the transcript of the proceedings in the District Court and meanwhile the construction at the Field Schools site was substantially completed. Petitioners therefore modified their position and urged in the Court of Appeals that respondent be required to convert the Gould Schools to a completely desegregated high school and the Field site to a completely desegregated primary school. The Court of Appeals rejected the proposition on the ground that it “was not presented to the trial court and no opportunity was afforded the parties to offer evidence on the feasibility of such a plan, nor was the trial court given any opportunity to pass thereon.” 381 F. 2d, at 254. Since there must be a remand, petitioners are not foreclosed from making their proposal an issue in the further proceedings.

Finally, we hold that in the circumstances of this case, the District Court’s dismissal of the complaint was an improper exercise of discretion. Dismissal will ordinarily be inconsistent with the responsibility imposed on the district courts by Brown II. 349 U. S., at 299-301. In light of the complexities inhering in the disestablishment of state-established segregated school systems, Brovm II contemplated that the better course would be to retain jurisdiction until it is clear that disestablishment has been achieved. We agree with the observation of another panel of judges of the Court of Appeals for the Eighth Circuit in another case that the district courts “should retain jurisdiction in school segregation cases to insure (1) that a constitutionally acceptable plan is adopted, and (2) that it is operated in a constitutionally permissible fashion so that the goal of a desegregated, non-racially operated school system is rapidly and finally achieved.” Kelley v. Altheimer, 378 F. 2d 483, 489. See also Kemp v. Beasley, 389 F. 2d 178.

The judgment of the Court of Appeals is reversed and the case is remanded to the District Court for further proceedings consistent with this opinion and with our opinion in Green v. County School Board, supra.

It is so ordered.

       Compare the developing views of the feasibility of “freedom-of-choice” plans expressed by various panels of the Court of Appeals for the Eighth Circuit in Kemp v. Beasley, 352 F. 2d 14; Clark v. Board of Education, 374 F. 2d 569; Kelley v. Altheimer, 378 F. 2d 483; Kemp v. Beasley, 389 F. 2d 178; and Jackson v. Marvell School District No. 22, 389 F. 2d 740.

       The Court of Appeals, while denying petitioners’ request for relief on appeal, did observe that
      “there is no showing that the Field facilities with the new construction added could not be converted at a reasonable cost into a completely integrated grade school or into a completely integrated high school when the appropriate time for such course arrives. We note that the building now occupied by the predominantly white Gould grade school had originally been built to house the Gould High School.” 381 F. 2d, at 255.


text:
    MONROE et al. v. BOARD OF COMMISSIONERS OF THE CITY OF JACKSON et al.
    No. 740.
    Argued April 3, 1968.
    Decided May 27, 1968.

      James M. Nabrit III and Jack Greenberg■ argued the cause for petitioners. With them on the brief were Michael Meltsner, Avon N. Williams, Jr., and Z. Alexander Looby.

      Russell Rice, Sr., argued the cause and filed a brief for respondents.

      Louis F. Claiborne argued the cause for the United States, as amicus curiae. With him on the brief were Solicitor General Griswold, Assistant Attorney General Poliak, Lawrence G. Wallace, and Brian K. Landsberg.

   Mr. Justice Brennan

delivered the opinion of the Court.

This case was argued with No. 695, Green v. County School Board of New Kent County, ante, p. 430, and No. 805, Raney v. Board of Education of the Gould School District, ante, p. 443. The question for decision is similar to the question decided in those cases. Here, however, the principal feature of a desegregation plan— which calls in question its adequacy to effectuate a transition to a racially nondiscriminatory system in compliance with Brown v. Board of Education, 349 U. S. 294 (Brown II) — is not “freedom of choice” but a variant commonly referred to as “free transfer.”

The respondent Board of Commissioners is the School Board for the City of Jackson, located in midwestern Tennessee. The school district coincides with the city limits. Some one-third of the city’s population of 40,000 are Negroes, the great majority of whom live in the city’s central area. The school system has eight elementary schools, three junior high schools, and two senior high schools. There are 7,650 children enrolled in the system’s schools, about 40% of whom, over 3,200, are Negroes.

In 1954 Tennessee by law required racial segregation in its public schools. Accordingly, five elementary schools, two junior high schools, and one senior high school were operated as “white” schools, and three elementary schools, one junior high school, and one senior high school were operated as “Negro” schools. Racial segregation extended to all aspects of school life including faculties and staffs.

After Brown v. Board of Education, 347 U. S. 483 {Brown I), declared such state-imposed dual systems unconstitutional, Tennessee enacted a pupil placement law, Tenn. Code §49-1741 et seq. (1966). That law continued previously enrolled pupils in their assigned schools and vested local school boards with the exclusive authority to approve assignment and transfer requests. No white children enrolled in any “Negro” school under the statute and the respondent Board granted only seven applications of Negro children to enroll in “white” schools, three in 1961 and four in 1962. In March 1962 the Court of Appeals for the Sixth Circuit held that the pupil placement law was inadequate “as a plan to convert a biracial system into a nonracial one.” Northcross v. Board of Education of City of Memphis, 302 F. 2d 818, 821.

In January 1963 petitioners brought this action in the District Court for the Western District of Tennessee. The complaint sought a declaratory judgment that respondent was operating a compulsory racially segregated school system, injunctive relief against the continued maintenance of that system, an order directing the admission to named “white” schools of the plaintiff Negro school children, and an order requiring respondent Board to formulate a desegregation plan. The District Court ordered the Board to enroll the children in the schools in question and directed the Board to formulate and file a desegregation plan. A plan was duly filed and, after modifications directed by the court were incorporated, the plan was approved in August 1963 to be effective immediately in the elementary schools and to be gradually extended over a four-year period to the junior high schools and senior high schools. 221 F. Supp. 968.

The modified plan provides for the automatic assignment of pupils living within attendance zones drawn by the Board or school officials along geographic or “natural” boundaries and “according to the capacity and facilities of the [school] buildings . . within the zones. Id., at 974. However, the plan also has the “free-transfer” provision which was ultimately to bring this case to this Court: Any child, after he has complied with the requirement that he register annually in his assigned school in his attendance zone, may freely transfer to another school of his choice if space is available, zone residents having priority in cases of overcrowding. Students must provide their own transportation; the school system does not operate school buses.

By its terms the “free-transfer” plan was first applied in the elementary schools. After one year of operation petitioners, joined by 27 other Negro school children, moved in September 1964 for further relief in the District Court, alleging respondent had administered the plan in a racially discriminatory manner. At that time, the three Negro elementary schools remained all Negro; and 118 Negro pupils were scattered among four of the five formerly all-white elementary schools. After hearing evidence, the District Court found that in two respects the Board had indeed administered the plan in a discriminatory fashion. First, it had systematically denied Negro children — specifically the 27 intervenors — the right to transfer from their all-Negro zone schools to schools where white students were in the majority, although white students seeking transfers from Negro schools, to white schools had been allowed to transfer. The court held this to be a constitutional violation, see Goss v. Board of Education, 373 U. S. 683, as well as a violation of the terms of the plan itself. 244 F. Supp. 353, 359. Second, the court found that the Board, in drawing the lines of the geographic attendance zones, had gerrymandered three elementary school zones to exclude Negro residential areas from white school zones and to include those areas in zones of Negro schools located farther away. Id., at 361-362.

In the same 1964 proceeding the Board filed with the court its proposed zones for the three junior high schools, Jackson and Tigrett, the “white” junior high schools, and Merry, the “Negro” junior high school. As of the 1964 school year the three schools retained their racial identities, although Jackson did have one Negro child among its otherwise all-white student body. The faculties and staffs of the respective schools were also segregated. Petitioners objected to the proposed zones on two grounds, arguing first that they were racially gerrymandered because so drawn as to assign Negro children to the “Negro” Merry school and white children to the “white” Jackson and Tigrett schools, and alternatively that the plan was in any event inadequate to reorganize the system on a nonracial basis. Petitioners, through expert witnesses, urged that the Board be required to adopt a “feeder system,” a commonly used method of assigning students whereby each junior high school would draw its students from specified elementary schools. The groupings could be made so as to assure racially integrated student bodies in all three junior high schools, with due regard for educational and administrative considerations such as building capacity and proximity of students to the schools.

The District Court held that petitioners had not sustained their allegations that the proposed junior high school attendance zones were gerrymandered, saying

“Tigrett [white] is located in the western section, Merry [Negro] is located in the central section and Jackson [white] is located in the eastern section. The zones proposed by the defendants would, generally, allocate the western section to Tigrett, the central section to Merry, and the eastern section to Jackson. The boundaries follow major streets or highways and railroads. According to the school population maps, there are a considerable number of Negro pupils in the southern part of the Tigrett zone, a considerable number of white pupils in the middle and northern parts of the Merry zone, and a considerable number of Negro pupils in the southern part of the Jackson zone. The location of the three schools in an approximate east-west line makes it inevitable that the three zones divide the city in three parts from north to south. While it appears that proximity of pupils and natural boundaries are not as important in zoning for junior highs as in' zoning for elementary schools, it does not appear that Negro pupils will be discriminated against.” 244 F. Supp., at 362.

As for the recommended “feeder system,” the District Court concluded simply that “there is no constitutional requirement that this particular system be adopted.” Ibid. The Court of Appeals for the Sixth Circuit affirmed except on an issue of faculty desegregation, as to which the case was remanded for further proceedings. 380 F. 2d 955. We granted certiorari, 389 U. S. 1033, and set the case for oral argument immediately following Green v. County School Board, supra. Although the case presented by the petition for certiorari concerns only the junior high schools, the plan in its application to elementary and senior high schools is also necessarily implicated since the right of “free transfer” extends to pupils at all levels.

The principles governing determination of the adequacy of the plan as compliance with the Board’s responsibility to effectuate a transition to a racially nondiscriminatory system are those announced today in Green v. County School Board, supra. Tested by those principles the plan is clearly inadequate. Three school years have followed the District Court’s approval of the attendance zones for the junior high schools. Yet Merry Junior High School was still completely a “Negro” school in the 1967-1968 school year, enrolling some 640 Negro pupils, or over 80% of the system’s Negro junior high school students. Not one of the “considerable number of white pupils in the middle and northern parts of the Merry zone” assigned there under the attendance zone aspect of the plan chose to stay at Merry. Every one exercised his option to transfer out of the “Negro” school. The “white” Tigrett school seemingly had the same experience in reverse. Of the “considerable number of Negro pupils in the southern part of the Tigrett zone” mentioned by the District Court, only seven are enrolled in the student body of 819; apparently all other Negro children assigned to Tigrett chose to go elsewhere. Only the “white” Jackson school presents a different picture; there, 349 white children and 135 Negro children compose the student body. How many of the Negro children transferred in from the “white” Tigrett school does not appear. The experience in the junior high schools mirrors that of the elementary schools. Thus the three elementary schools that were operated as Negro schools in 1954 and continued as such until 1963 are still attended only by Negroes. The five “white” schools all have some Negro children enrolled, from as few as three (in a student body of 781) to as many as 160 (in a student body of 682).

This experience with “free transfer” was accurately predicted by the District Court as early as 1963:

“In terms of numbers . . . the ratio of Negro to white pupils is approximately 40-60. This figure is, however, somewhat misleading as a measure of the extent to which integration will actually occur under the proposed plan. Because the homes of Negro children are concentrated in certain areas of the city, a plan of unitary zoning, even if prepared without consideration of race, will result in a concentration of Negro children in the zones of heretofore ‘Negro’ schools and white children in the zones of heretofore ‘white’ schools. Moreover, this tendency of concentration in schools will be further accentuated by the exercise of choice of schools ... .” 221 F. Supp., at 971. (Emphasis supplied.)

Plainly, the plan does not meet respondent’s “affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.” Green v. County School Board, supra, at 437-438. Only by dismantling the state-imposed dual system can that end be achieved. And manifestly, that end has not been achieved here nor does the plan approved by the lower courts for the junior high schools promise meaningful progress toward doing so. “Rather than further the dismantling of the dual system, the [“free transfer”] plan has operated simply to burden children and their parents with a responsibility which Brown II placed squarely on the School Board.” Green v. County School Board, supra, at 441-442. That the Board has chosen to adopt a method achieving minimal disruption of the old pattern is evident from its long delay in making any effort whatsoever to desegregate, and the deliberately discriminatory manner in which the Board administered the plan until checked by the District Court.

The District Court approved the junior high school attendance-zone lines in the view that as drawn they assigned students to the three schools in a way that was capable of producing meaningful desegregation of all three schools. But the “free-transfer” option has permitted the “considerable number” of white or Negro students in at least two of the zones to return, at the implicit invitation of the Board, to the comfortable security of the old, established discriminatory pattern. Like the transfer provisions held invalid in Goss v. Board of Education, 373 U. S. 683, 686, “[i]t is readily apparent that the transfer [provision] lends itself to perpetuation of segregation.” While we there indicated that “free-transfer” plans under some circumstances might be valid, we explicitly stated that “no official transfer plan or provision of which racial segregation is the inevitable consequence may stand under the Fourteenth Amendment.” Id., at 689. So it is here; no attempt has been made to justify the transfer provision as a device designed to meet “legitimate local problems,” ibid.; rather it patently operates as a device to allow resegregation of the races to the extent desegregation would be achieved by geographically drawn zones. Respondent’s argument in this Court reveals its purpose. We are frankly told in the Brief that without the transfer option it is apprehended that white students will flee the school system altogether. “But it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them.” Brown II, at 300.

We do not hold that “free transfer” can have no place in a desegregation plan. But like “freedom of choice,” if it cannot be shown that such a plan will further rather than delay conversion to a unitary, nonracial, nondiscriminatory school system, it must be held unacceptable. See Green v. County School Board, supra, at 439-441.

We conclude, therefore, that the Board “must be required to formulate a new plan and, in light of other courses which appear open to the Board, . . . fashion steps which promise realistically to convert promptly to a system without a ‘white’ school and a ‘Negro’ school, but just schools.” Id., at 442.

The judgment of the Court of Appeals is vacated insofar as it affirmed the District Court’s approval of the plan in its application to the junior high schools, and the case is remanded for further proceedings consistent with this opinion and with our opinion in Green v. County School Board, supra.

It is so ordered.

      We imply no agreement with the District Court’s conclusion that under the proposed attendance zones for junior high schools “it does not appear that Negro pupils will be discriminated against.” We note also that on the record as it now stands, it appears that petitioners’ recommended “feeder system,” the feasibility of which respondent did not challenge in the District Court, is an effective alternative reasonably available to respondent to abolish the dual system in the junior high schools.


author: Per Curiam.

text:
    WORLD AIRWAYS, INC., et al. v. PAN AMERICAN WORLD AIRWAYS, INC., et al.
    No. 800.
    Argued April 29-30, 1968.
    Decided May 27, 1968

      Assistant Attorney General Wozencraft argued the cause for petitioner in No. 946. With him on the brief were Solicitor General Griswold, Assistant Attorney General Turner, Howard E. Shapiro, Joseph B. Goldman, O. D. Ozment, Warren L. Sharfman, and Robert L. Toomey. Jerrold Scoutt, Jr., argued the cause for petitioners in Nos. 800 and 969. With him on the brief for petitioners in No. 800 were Leonard N. Bebchick, George Berkowitz, Stephen D. Potts, Clayton L. Burwell, and Frederick Bernays Wiener. Charles A. Hobbs and Glen A. Wilkinson filed briefs for petitioner in No. 969.

      Edward R. Neaher argued the cause for respondents in all cases. With him on the brief were Carl S. Rowe and Gertrude S. Rosenthal.

      Together with No. 946, Civil Aeronautics Board v. Pan American World Airways, Inc., et al., and No. 969, American Society of Travel Agents, Inc. v. Pan American World Airways, Inc., et al., also on. certiorari to the same court.

   Per Curiam.

The judgment of the United States Court of Appeals for the Second Circuit is affirmed by an equally divided Court.

Mr. Justice Marshall took no part in the consideration or decision of these cases.


author: Per Curiam. Mr. Justice Douglas,

text:
    RABECK v. NEW YORK.
    No. 611.
    Decided May 27, 1968.

      Stanley Fleishman, Osmond K. Fraenkel, and Sam Rosenwein for appellant.

      Isidore Dollinger and Daniel J. Sullivan for appellee.
   Per Curiam.

Appellant, in seeking reversal of his conviction for selling “girlie” magazines to a minor under 18 years of age in violation of former § 484-i, New York Penal Law, argues among other grounds that the statute is impermissibly vague. We agree. While we rejected a like claim as to § 484 — h in Ginsberg v. New York, 390 U. S. 629, § 484-i in part prohibited the sale of “any . . . magazines . . . which would appeal to the lust of persons under the age of eighteen years or to their curiosity as to sex or to the anatomical differences between the sexes . . . .” That standard in our view is unconstitutionally vague. “Nor is it an answer to an argument that a particular regulation of expression is vague to say that it was adopted for the salutary purpose of protecting children. The permissible extent of vagueness is not directly proportional to, or a function of, the extent of the power to regulate or control expression with respect to children.” Interstate Circuit, Inc. v. City of Dallas, 390 U. S. 676, 689.

Reversed.

Mr. Justice Douglas,

with whom Mr. Justice Black concurs, would reverse for the reasons stated in his dissenting opinion in Ginsberg y. New York, 390 U. S. 629, 650.

Mr. Justice Harlan would affirm the judgment of the state court on the premises stated in his separate opinion in Interstate Circuit, Inc. v. City of Dallas, 390 U. S. 676, 704. In addition, he considers it a particularly fruitless judicial act to strike down on the score of vagueness a state statute which has already been repealed.

      Section 484-i was repealed by N. Y. Laws 1967, c. 791. See Ginsberg v. New York, 390 U. S. 629, 631-632, n. 1.


text:
    GARRISON v. PATTERSON, WARDEN.
    No. 791,
    Misc.
    Decided May 27, 1968.

      E. Barrett Prettyman, Jr., and Isaac Mellman for petitioner.

      Duke W. Dunbar, Attorney General of Colorado, Frank E. Hickey, Deputy Attorney General, and John P. Moore, Assistant Attorney General, for respondent.
   Per Curiam.

On November 27, 1959, petitioner was found guilty of first degree murder by a Colorado jury, which fixed his penalty at death. Following subsequent state proceedings, he sought a writ of habeas corpus in the United States District Court for the District of Colorado. He alleged that he had received inadequate representation by appointed trial counsel, that the trial court had not properly determined the voluntariness of confessions admitted against him, and that the procedure used to determine his sanity fell short of constitutional requirements. On June 2, 1967, the District Court denied the writ, denied a certificate of probable cause to appeal, see 28 U. S. C. § 2253, but granted a stay of execution to June 16, 1967, to allow time for appeal. The District Court filed a written opinion and order to that effect on June 5, 1967.

Three days later, on June 8, petitioner’s attorneys filed with the Court of Appeals for the Tenth Circuit a three-page document requesting a further stay of execution, a certificate of probable cause to appeal, and leave to appeal in forma pauperis. This document merely stated the formal history of the case in numbered paragraphs, noted one of the issues, and alleged that “this petition merits further hearing by this Court.” On the following day, June 9, counsel were heard orally by a panel of the Court of Appeals. The hearing was not recorded. The court granted a further stay of execution. On June 18, without further argument or submissions by counsel, the Court of Appeals issued an order granting the certificate of probable cause, and, in the next sentence, affirming the District Court’s denial of habeas corpus. Petitioner sought a writ of certiorari in this Court, alleging that the procedure followed by the Court of Appeals violated the standards established by, or implicit in, Nowakowski v. Maroney, 386 U. S. 542.

We grant the writ, vacate the judgment of the Court of Appeals, and remand to that court for further appropriate proceedings. Nowakowski, supra, held that when a district court grants a certificate of probable cause the court of appeals must “proceed to a disposition of the appeal in accord with its ordinary procedure.” 386 U. S., at 543. The principle underlying that decision was that if an appellant persuades an appropriate tribunal that probable cause for an appeal exists, he must then be afforded an opportunity to address the underlying merits. This principle is no less applicable when a court of appeals, having received submissions relating only to probable cause and other procedural matters, decides that probable cause indeed exists.

As we only recently noted in Carafas v. LaVallee, ante, p. 234, at 242, Nowakowski does not prevent the courts of appeals from adopting appropriate summary procedures for final disposition of such cases. Carafas requires the courts of appeals to give sufficient indication that an appeal has been disposed of on the merits, but nothing in Nowakowski and nothing we say here prevents the courts of appeals from considering the questions of probable cause and the merits together, and nothing said there or here necessarily requires full briefing and oral argument in every instance in which a certificate is granted. We hold only that where an appeal possesses sufficient merit to warrant a certificate, the appellant must be afforded adequate opportunity to address the merits, and that if a summary procedure is adopted the appellant must be informed, by rule or otherwise, that his opportunity will or may be limited. Within this general framework, the promulgation of specific procedures is a matter for the courts of appeals.

The motion to proceed in forma pauperis and petition for a writ of certiorari are granted. The judgment of the Court of Appeals affirming the judgment of the District Court is vacated, and the case is remanded for further proceedings in conformity with this opinion. The stay of execution heretofore granted by Me. Justice White is continued in force pending the disposition of the matter by the Court of Appeals, on condition that the petitioner proceed with due diligence in that court.

It is so ordered.

       Petitioner’s statement of facts alleges not only that trial counsel was guilty of egregious neglect at trial but also that there were understandable reasons: there is said to be evidence that during the period of the trial the attorney’s attention was preoccupied with other matters, to wit, the commission of a series of felonies.

       In an effort to determine whether the merits had been addressed, and whether petitioner was on notice that they should be addressed in full, at the unrecorded hearing on June 9, this Court solicited further submissions from the parties in this case. Petitioner replied that the merits had been raised only to the extent necessary to show grounds for a certificate of probable cause. Respondent replied that petitioner was given all the time he wanted. Respondent was unable, however, to point to any rule or decision forewarning an applicant for a certificate of probable cause to make his argument on the underlying issues in full.


text:
    THEATRES SERVICE CO. v. UNITED STATES et al.
    No. 1267.
    Decided May 27, 1968.

      David A. Sutherland and Guy H. Postell for appellant.

      Solicitor General Griswold, Assistant Attorney General Turner, and Robert W. Ginnane for the United States et al., and Paul M. Daniell and Bill R. Davis for Dance Freight Lines, Inc., appellees.
   Per Curiam.

The motions to affirm are granted and the judgment is affirmed.


text:
    NATIONAL BUS TRAFFIC ASSN., INC., et al. v. UNITED STATES et al.
    No. 1312.
    Decided May 27, 1968.

      Robert J. Bernard, Warren A. Goff, Drew L. Carraway, John S. Fessenden, and Richard R. Sigmon for appellants.

      Solicitor General Griswold, Assistant Attorney General Turner, Howard E. Shapiro, and Robert W. Ginnane for the United States et al., and T. S. Christopher for Rosen-baum, appellees.
   Per Curiam.

The motions to affirm are granted and the judgment is affirmed.


text:
    CENTRAL BANK & TRUST CO. v. UNITED STATES et al.
    No. 1269.
    Decided May 27, 1968

      Earl S. Wilson, Earl W. Kintner, Sidney Harris, and George R. Kucik for appellant in No. 1269, and Mr. Wilson and Frank S. Ginocchio for appellant in No. 1270.

      Solicitor General Griswold, Assistant Attorney General Turner, and Howard E. Shapiro for the United States, and Paul A. Porter and Victor H. Kramer for First National Bank & Trust Co. et al., appellees in both cases.

      Together with No. 1270, Boyle v. United, States et al., also on appeal from the same court.

   Per Curiam.

The motions to affirm are granted and the judgment is affirmed.

Mr. Justice Black and Mr. Justice White would note probable jurisdiction and set these cases for oral argument.

Mr. Justice Fortas took no part in the consideration or decision of these cases.


text:
    ROSS v. CALIFORNIA.
    No. 798,
    Misc.
    Decided May 27, 1968.

      Thomas C. Lynch, Attorney General of California, William E. James, Assistant Attorney General, and Walter R. Jones, Deputy Attorney General, for respondent.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is reversed. Chapman v. California, 386 U. S. 18, and Anderson v. Nelson, 390 U. S. 523.

Mr. Justice Blacic is of the opinion that certiorari should be denied.