* * *

With respect to the Egypt, Scenic Hills, Spring Hill and Coleman zones as proposed by the defendant Board, all heavily white, the Title IV Center concurs. All of these except the Egypt zone are to be effectively annexed by Memphis by the summer of 1973 and the Egypt zone is under annexation study. The Department of Justice would have put Egypt in the cluster with Shadowlawn and would have left out Elmore Park (which it would treat by adding blacks from the "Bridgewater" area across the interstate highway from the Board's proposed Elmore Park zone).

I observe that my conclusions about the necessity of further action to desegregate Mt. Pisgah Elementary would likely change the District Court's conclusions about the necessity of including Egypt Elementary in the cluster with Shadowlawn; and it might be necessary to pair or cluster others of the predominantly white schools with predominantly black schools in order to complete the desegregation of this school system. Two recent Supreme Court decisions are pertinent to these considerations. In Wright v. Council of City of Emporia, 407 U.S. 451, 92 S. Ct. 2196, 33 L. Ed. 2d 51 (1972), the Court reversed a court of appeals decision and sustained a district court injunction prohibiting Emporia from separating its schools from the county school system of which it was a part. The district court had found that

the establishment of a separate school system by the city would constitute "an impermissible interference with and frustration of" its [previous] order . . . and preliminarily enjoined the respondents from taking "any action which would interfere in any manner whatsoever with the implementation of the Court's order heretofore entered. . . ."

Wright v. Council of City of Emporia, supra, 407 U.S. at 458, 92 S. Ct. at 2201. The Supreme Court stated that

[u]nder the principles of Green and Monroe, [Monroe v. Board of Commissioners etc., 391 U.S. 450, 88 S. Ct. 1700, 20 L. Ed. 2d 733] such a proposal must be judged according to whether it hinders or furthers the process of school desegregation. If the proposal would impede the dismantling of the dual system, then a district court, in the exercise of its remedial discretion, may enjoin it from being carried out.

* * *

There are possibilities in this particular thing that I think if we know what the Court tells us to do, then we would immediately seek to try to work with them.

For these reasons, and because I would have ordered the desegregation of Mt. Pisgah, the District Court should consider the inclusion of the remaining predominantly white elementary schools in

a desegregation plan.

Appellants argue that all the remaining predominantly white schools must be desegregated. As the Supreme Court held in Swann, supra, there isa presumption against schools that are substantially disproportionate in their racial composition. . . . The court should scrutinize such schools, and the burden upon the school authorities will be to satisfy the court that their racial composition is not the result of present or past discriminatory action on their part.

402 U.S. at 26, 91 S. Ct. at 1281. Upon reconsideration of this situation,

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

Davis v. School Commissioners of Mobile County, 402 U.S. 33, 37, 91 S. Ct. 1289, 1292 (1971).

IV

Appellants also object to the attendance area established for Barret's Chapel Elementary School in the northwest area of the county. Until the past school year, Barret's Chapel served as an elementary and secondary school for black children. It was built in the middle 1960's when the district was operated under a "freedom of choice" plan. When actual desegregation of the county's schools began and the freedom of choice plan was abandoned, Barret's Chapel was paired with Bolton, which served white children in the same grades who lived in the same area.

During segregation, the schools were, in effect, paired to facilitate segregation by race. As a first step in their desegregation, it was natural that they should be paired, with earlier grades in one school and later grades in the other. The Board of Education predicted that this arrangement would result in student populations which would be 66% black in Bolton, attended by children in grades 7-12, and 62% black in Barret's Chapel, attended by children in grades 1-6. In fact, the proportion of black children in each school is higher than predicted.

The Justice Department suggested that an additional group of white children in grades 6-12 living in the area of the naval base immediately west of the Barret's-Bolton zone be added to the attendance area. Then, if one of the two schools were used for grades 9-12, and the other for grades 1-8, their racial composition would be 53% black and 55% white respectively. A smaller number of grade 1-5 children from the Barret's Chapel-Bolton area would have been transferred to Millington East Elementary. The net reduction of the number of students in the Millington area would have contributed to the Government's plan for that area which is discussed in Part I of this opinion. If that plan had been implemented, the Board would have found it unnecessary to lease St. Williams, and the number of portable classrooms needed in that area would have been reduced. However, the principal purpose of the Government's plan to transfer the students from Millington East was to further desegregate Barret's Chapel and Bolton, and thereby make it more likely that their populations would remain stable.

The Court approved the Board's plan for this area, and the result for the 1971-72 school year has been that Bolton's population is 70% black and Barret's Chapel's population is 68% black.

Dr. Buford was a proponent of the suggestion that the white students from Millington East be transferred to the Bolton and Barret's Chapel schools. He testified that the two schools were major problems because their high proportion of black pupils perpetuated racial identifiability there and made the retention of a white pupil population difficult. His prediction that the projected racial composition of their student bodies would overestimate the proportion of white students who would choose to attend those schools has proven correct.

The two Title IV Center experts who testified, Dr. Vindetti and Dr. Myer, agreed with Dr. Buford that the inclusion of the white Millington East children in the area would be feasible and consistent with sound educational policies, but they expressed no preference either for the Board's plan or for the Government's plan. School Superintendent George Barnes conceded that the westward extension of the schools' boundary would help desegregate the two schools and ease the problem caused by the fire at Millington Central. He also agreed that, in combination with the Government's suggestion for the Millington area, this would have made the lease of St. Williams unnecessary. Nevertheless, Mr. Barnes opposed the plan because it would require some additional bussing of Millington East students and because the Millington East students were the children of persons serving in the United States Navy at the naval station in that area. Mr. Barnes testified:

I think your chances of succeeding is better than to bring in outside groups who are going to be unhappy, who are going to be belligerent to begin with. . . . I don't see how you could justify to those parents why their children are being moved eight or ten miles.

[B]y far the big majority of these children are Navy connected. They are emotionally disturbed, many of them, when we get them. Their parents are as much so sometimes as the children are, and maybe sometimes the children adjust better than the parents do. . . .

* * *

A. It has been my experience that, and here I make no specific reference to this school system, because I am not that familiar with the total history of school construction. But it has been my experience that where School Boards do construct new buildings under a freedom of choice plan that in so doing the population will be influenced to live in one neighborhood or another.

In his remarks from the bench, at various times, and less explicitly in his opinion, the District Judge indicated his observation that this rural area of the county has historically been inhabited predominantly by Negroes. Accordingly, he concluded that the racial composition of these schools "would be the same if there had never been de jure school segregation applicable to the area they serve." 330 F. Supp. at 844. However, there is no evidence that these schools would be the same size or in the same location had there been no unconstitutional segregation.

Possibly, by the introduction of evidence establishing that there remain no residual effects of unconstitutional segregation, the School Board could overcome the presumption against the validity of school zones with pupils of predominantly one race. But when, as here, there is a sound alternative plan which would further desegregate the schools, the burden is indeed a heavy one. The evidence of record falls short of sustaining that burden.

This is not to say that, once unconstitutional segregation has been found, there may never be schools with substantially disproportionate racial populations. However, once unconstitutional segregation has been found, every effort, taking into account the practicalities of the situation, should be made to accomplish the full desegregation of an unconstitutionally segregated school system. Davis v. Board of School Commissioners, supra, 402 U.S. at 37, 91 S. Ct. 1289; Kelley v. Metropolitan Board of Education of Nashville and Davidson County, 463 F.2d 732, 744 (6th Cir. 1972).

V

Appellants also contend that the court erred by permitting the School Board to adopt a plan which imposes a greater burden upon black students than upon white students without justifying the imposition by objective standards. They assert that the Board's plan impermissibly burdens black students because it has closed Barret's Chapel and Mt. Pisgah as high schools, although both should have been maintained as high schools. The result has been that all formerly black high schools in the school district have either been closed or converted to elementary schools. They also assert that the Court's plan for desegregating Shadowlawn placed too great a burden upon black children because it left only two grades in that formerly black school rather than three grades.

Any purposeful imposition of a disproportionate share of the desegregation burden upon black students is impermissible, unless there are compelling circumstances justifying that imposition:

Closing schools for racial reasons would be unconstitutional. The equal protection clause of the fourteenth amendment prevents any invidious discrimination on the basis of race. Yick Wo v. Hopkins, 1886, 118 U.S. 356, 6 S. Ct. 1064, 30 L. Ed. 220. A governmental unit bears a "very heavy burden of justification" to support any use of racial distinctions. Loving v. Commonwealth of Virginia, 1967, 388 U.S. 1, 9, 87 S. Ct. 1817, 18 L. Ed. 2d 1010. Under general equal protection doctrine, therefore, it would be impermissible for the school board to close formerly black schools for racial reasons. More particularly, such action is prohibited by the school desegregation cases. Brown II, supra, [349 U.S. 294, 75 S. Ct. 753, 99 L. Ed. 1083,] calling for "a racially nondiscriminatory school system," and its progeny require not only that past discriminatory practices be overcome by affirmative actions but also that new forms of discrimination not be set up in their place. Closing formerly black school facilities for racial reasons would be such a prohibited form of discrimination. "Such a plan places the burden of desegregation upon one racial group." Brice v. Landis, N.D.Cal.1969, 314 F. Supp. 974. See Quarles v. Oxford Municipal Separate School District, N.D.Miss. January 7, 1970, C.A.W.C. 6962-K.

Lee v. Macon County Board of Educ., 448 F.2d 746, 753-754 (5th Cir. 1971) (footnote omitted). Accord, Kelley v. Metropolitan Board of Educ., supra, 463 F.2d at 751 (concurring opinion); Mims v. Duval County School Board, 447 F.2d 1330, 1331 (5th Cir. 1971).

Here the problems facing the District Court are complex. It is true that, in desegregating Shadowlawn, the court could have adopted a plan which would have lessened the burden upon black children without lessening the effectiveness of the desegregation plan. However, on close examination, the decision to operate Shadowlawn as a two-grade school instead of a three-grade school has no sinister implications and appears to be an effective means of desegregating that school. Therefore, I would approve the plan for Shadowlawn without prejudice to reconsideration by the court in the light of our observations about the possibility of amending the cluster to facilitate the further desegregation of Mt. Pisgah.

Appellants' contentions about the effects of the closing of all the formerly black high schools in the county, and their specific objections to the closing of Mt. Pisgah High and Barret's Chapel High are more subtle and difficult to meet. An understanding of their thrust requires a brief review of the development of black high schools in the school system.

In the first 50 years after the Supreme Court's decision of Plessy v. Ferguson, 163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256 (1896), which validated separate but equal public facilities, there existed only one high school in the Shelby County school system (Woodstock) which Negro children could attend. And that facility was financed in part by a private foundation. It was located in the northwest part of the county and was so remote from other areas that many children who wished to attend were required to remain overnight. No public financial aid or public transportation was provided for black students who wished to attend it; but dormitory space, furnished by private charity, was available there for those who could find their own transportation and wished to stay through the week. The second high school facility constructed for Negroes, Mt. Pisgah, was built during the late 1940's. Later, under the Board's freedom of choice plan, it was substantially enlarged. Before the construction of Mt. Pisgah, Collierville, which was a ten-grade black school, and Woodstock were the only public facilities in Shelby County for the education of Negroes beyond the primary grades. Education for black children was afforded principally in approximately 170 one-, two-, or three-room schools which provided no more than an eighth-grade education. No bus transportation was provided for black children until after the construction of Mt. Pisgah following World War II.

Although the record does not provide a complete history of the development of public schools for black children in the system, it indicates that by 1970, Mt. Pisgah had been expanded to accommodate nearly 1200 elementary and secondary students. However, its curriculum was not on a par with that offered at high schools attended by white children in the system. Dr. Buford, testifying in 1971 from a document provided by the Board of Education, compared the curriculum at Mt. Pisgah High with that at Millington Central High as follows:

Millington Central             Mt. Pisgah
-----------------------------  -------------------
Art I-IV                       Art I
Chorus
Speech I & II                  Speech I
Latin3 years                  French I
French3 years
Spanish3 years
General Shop I                 General Shop I & II
Arithmetic                     Arithmetic
Algebra2 years                Algebra I & II
Unified Geometry               Unified Geometry
Advanced Math.                 Advanced Math.
Applied Math.                  Applied Math.
Calculus
Biology I                      Biology I
Chemistry                      Chemistry
Physics                        Physics
General Science
World History                  World History
American Studies               American History
Geography                      Civics
History
Economics
Contemporary Problems
Automobile Mechanics I & II
Distributive Education I & II
Home Economics I, II & III

In the District Court, appellants argued that the black community considers high schools more symbolically significant than elementary schools and, accordingly, that the closing of all the black high schools had an especially strong emotional impact on the community. Appellants have not pressed this argument on appeal, and have confined their arguments to the following: the result of closing all the black high schools has been the unjustified imposition of a relatively greater transportation burden upon black students; and the systematic closing of all the black high schools amounts to an unconstitutional racial classification of those buildings.

The record provides no support for the first of these contentions. In only two instances, Mt. Pisgah and Barret's Chapel, do appellants contend that the closing of black high schools was not justified by objective educational considerations. Since Barret's Chapel is now being operated as an elementary school at approximately its previous occupancy level, it does not appear that changing it back to a high school would, in itself, change the number of black students who must be transported. With regard to Mt. Pisgah, the record is less clear. But it appears that substantially all its former high school students were transported to school before its closing. Its reopening would the therefore not substantially affect the transportation burden upon those students.

There is support, however, for the proposition that the pattern of closing black high schools indicates a racial classification. In a colloquy with the court, Dr. Buford testified as follows with regard to his recommendation that Barret's Chapel be maintained as a high school:

THE WITNESS: And at the same time we were aware that all of the formerly all black schools, high schools, had been discontinued, and when it comes to the matter-it's very difficult-it was very difficult for me personally in trying to arrive at a legal solution to this, and I have to take into consideration racial identifiability in schools. I also have to take into consideration, say, stability, both now and in the future. It was of concern to me that the last formerly black secondary school was being done away with, so to speak, when in my view it was a perfectly adequate, albeit, excellent facility for secondary school pupils, and it was my view that-

THE COURT: (Interposing) Would you consider that point of constitutional significance with the guidelines that have been given you by the Department of Justice lawyers investigating this situation?

THE WITNESS: Well, I make the bridge here. I make the relationship on this question of racial identifiability.

THE COURT: Well, on that point did you consider it to be less racially identifiable to put the high school in Barret's Chapel and the elementary school in Bolton? . . .

THE WITNESS: Well, two factors, your Honor-I felt that, here again, this would be placing the burden on the blacks to give us their last secondary school.

THE COURT: Well, do you have any evidence that the blacks really care about that as long as they are integrated and go into an adequate plant?

THE WITNESS: Yes, sir, I do.

THE COURT: You feel that?

THE WITNESS: Yes, sir.

THE COURT: Did you talk to any of them out there?

THE WITNESS: Yes, sir.

THE COURT: That's what they want?

THE WITNESS: Yes, sir. . . .

In his testimony, Dr. Myer, the court's expert witness, testified upon cross-examination by appellants' counsel as follows:

Q Dr. Myer, we have in Shelby County a system which in the very recent past and within its present boundaries operated six or seven black high schools. Within this past year the system operated two black high schools, and this year they propose to operate no black high schools.

Does that accord with your knowledge of the system?

A . . . Yes, sir.

* * *

Q (Interposing) Is there anything about the fact that this system has done that that bothers you as an educator and as a person involved in desegregation planning?

A Yes, sir, there is.

Q What is that?

A The feeling of fairness involved. I feel that all things otherwise being reasonably equal, then the black high school, the formerly black high school, . . . should be retained, at least in certain cases. But I still feel, Mr. Caldwell, that in spite that professional personal feeling that the School Board's responsibility-it's the School Board's responsibility to make that decision.

* * *

Q Would you agree with me that the fact that I have just outlined to you with the closing of black high schools treat black people differently than it does white people?

A Yes, sir.

Superintendent of Schools Barnes testified about this point on cross-examination as follows:

Q You recall when the Title IV Center recommended last year that Barret's Chapel be made the high school?

A Yes, sir.

Q And you disagreed with that?

A Yes, sir.

Q And what is your reason?

A Because the two communities disagreed with it, and I thought they had a right to because both of them have been there a long time. They have traditional backgrounds there, and there were deep loyalties, and it is a pretty big thing the first year to upturn a twelfth grade or eleventh grade group, and by the Court allowing the twelfth grade to stay there one year, now I think everybody understands that this is going to happen the second year, and it is much easier to do it now than it would have been last year. The children were prepared for graduation and had bought class rings and all that, and I don't believe in telling them their high school is done away with, and we kept it open a year and came back after everyone understood the problem and have combined them. At a later point in the proceedings below, the District Judge indicated his own familiarity with the county's history by his questioning of Assistant Superintendent Wells, who had been called as a witness by appellants. Mr. Wells had been employed by the Shelby County school system for thirty-eight years.

THE COURT: You have been familiar with the Barret's Chapel School a long time.

THE WITNESS: Yes, sir.

THE COURT: How long was Professor Hoffman running that school?

THE WITNESS: He was there, sir, when I started.

THE COURT: And when did he leave?

THE WITNESS: About three years ago.

THE COURT: Was Professor Hoffman active in politics out that way?

THE WITNESS: Yes, sir.

THE COURT: Didn't he used to get blacks in from the whole area and vote them out there at Stewartville?

THE WITNESS: Yes, sir.

THE COURT: And they didn't have too much choice about how they voted in those days, did they?

THE WITNESS: No, sir.

THE COURT: Are you telling me there is all this sentiment about Barret's Chapel School with all this background, that Barret's Chapel is a symbol of black independence and all that as Mr. Caldwell is trying to convince this Court?

THE WITNESS: I haven't said that, sir.

THE COURT: Well, is it?

THE WITNESS: Seemingly, Judge, we haven't had too much kickback through the Barret's area. I don't think we have now. I haven't heard too much about it.

In his memorandum opinion, the District Court disposed of appellants' arguments in three footnote comments, 330 F. Supp. at 843 n. 8, 844 n. 10, 847 n. 15:

The NAACP also contends that, contrary to the Board's plan, Mt. Pisgah, historically a black high school and still heavily black, should not be closed and the pupils transferred to schools wherein the ratio of whites to blacks would be substantially higher. The Board desires to do this, it contends, because Mt. Pisgah high school student body is too small and remains nearly all black. The NAACP contends that Mt. Pisgah should be kept open, and whites transferred to it, because of the burden on the black pupils of transferring and because of their emotional attachment to this black high school

* * *

At the same time, as has been seen, the NAACP has made arguments for maintaining Mt. Pisgah as a high school and for making Barret's, rather than Bolton, a high school which amount to the proposition that some schools should be retained because of their black identity. Actually, one of the great practical problems in desegregation is getting whites who are assigned to schools that have, merely because of their very names or for other reasons, a black identity, to stay there

The Court did not address itself to the issue as it has been framed in this court: whether the pattern of closing of all black high schools in the system is indicative of an impermissible racial classification employed by the Board in determining which high schools to maintain. This is a mixed question of fact and law which we cannot adequately resolve on the record before us, without the aid of findings by the District Court.

It appears that the decision to close Mt. Pisgah High School may be supportable by reference to objective factors. All the evidence indicates, however, that Barret's Chapel is a better high school facility than is Bolton. Barret's Chapel has superior high school athletic facilities, whereas Bolton has facilities better suited to elementary recreation than are Barret's Chapel's. Dr. Buford determined "with no question" that Barret's Chapel is the better high school facility. Although the Title IV Center experts who testified below indicated that there is no substantial difference between the two facilities, the Title IV Center had, at first, recommended that Barret's Chapel be retained as the high school. Accordingly, I would remand this issue concerning Barret's Chapel and Mt. Pisgah High Schools for appropriate findings of fact and conclusions of law.

VI

The District Court made no findings about the additional cost which would have been incurred by the Board if it had been ordered to implement the Government's plan. He stated:

There is no question but that the plan proposed by the Department would come closer than the Board's plan, as amended by the suggestions of the Title IV Center, to creating a racial ratio in each school that approximates the ratio in the system as a whole. It is also clear that the Department's plan would require substantially more busing, though it is not clear as to how much more would be necessary. It is further clear that the additional buses could not be obtained for the coming year because they are generally unavailable and that to carry out the Department's plan at this time it would be necessary to stagger the daily starting times of the schools.

F.Supp. at 843

The history of bussing in this school district indicates that the school administration could easily have accommodated the additional bussing which would have been required by the Government's plan. Dr. Buford testified that the Government's plan might have cost no more than the Board's plan because he proposed closing Cordova and James Elementary schools one year earlier than the Board had planned, and he assumed that busses now in service could be used to make additional runs each day. Mr. Barnes testified that the additional bussing could cost more than two million dollars.

As did the District Court, I assume that the actual cost would be significant, but I observe that no portion of the Government's plan was inordinately expensive, and no part of it was considered unfeasible by the experts who testified in this case. Dr. Buford testified that the Government plan would require the bussing of 1100 additional elementary school children. The extent of present and past bussing in this system indicates that this additional burden could easily be borne.

During the 1970-71 school year, the Board operated over 150 busses and bussed 14,600 children. In earlier years, the system required considerably more bussing. During the 1963-64 school year, the county operated approximately 144 busses and bussed 20,408 children. The changes in the magnitude of the county's bussing effort may be seen in the following table:8

The number of children bussed has been lowered by the construction of new schools in outlying areas and by the city's annexation of relatively densely populated areas. At the same time, the number of busses employed has remained relatively high. This has permitted their operation on a two runs per day basis, whereas a substantial number of busses was once employed for three runs per day.

A statement by the Supreme Court in Swann, supra, 402 U.S. at 29-30, 91 S. Ct. at 1282-1283, is applicable here:

Bus transportation has been an integral part of the public education system for years, and was perhaps the single most important factor in the transition from the one-room school-house to the consolidated school. Eighteen million of the Nation's public school children, approximately 39% were transported to their schools by bus in 1969-1970 in all parts of the country.

The importance of bus transportation as a normal and accepted tool of educational policy is readily discernible in this and the companion case Davis, supra. The Charlotte school authorities did not purport to assign students on the basis of geographically drawn zones until 1965 and then they allowed almost unlimited transfer privileges. The District Court's conclusion that assignment of children to the school nearest their home serving their grade would not produce an effective dismantling of the dual system is supported by the record. [Footnote omitted.]

VII

This case should be remanded to the District Court for further proceedings in accordance with this opinion. I am well aware of the complexities of the problems faced by the able District Judge who is required by the law of the land to extirpate now the effects of practices and policies pursued for generations. I am also aware that another school year is commencing and I would not direct that the opening of classes be delayed. However, I believe it is his task to reevaluate the status of the schools and the attendance areas I have discussed and to order the further desegregation of this school system at the earliest practicable time until it is completed in accordance with the principles stated herein.APPENDIX

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLENOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

This Court recently permitted a partial remand to the district court to consider a petition of the school board to make certain modifications in its plan for the 1972-73 school year. After such partial remand, the district judge held an evidentiary hearing and by his order of August 4, 1972, approved two modifications which had been agreed to by the parties; viz. the retention of E. A. Harrold School for the 1972-73 school year and the transportation of some students (predominantly white) to Scenic Hills. However, he took under advisement, pending further orders, the request of the school board to allow the Cordova School and George R. James School to remain open for that year

The following appears in Tennessee Code Annotated:

CHAPTER 37

Segregation Of Races

SECTION.

49-3701-49-3703. [Unconstitutional.]

49-3701-49-3703. [Unconstitutional.]

Compier's Note. Under the decision of Roy v. Brittain (1956), 201 Tenn. 140, 297 S.W.2d 72, the statutes providing for the compulsory separation of races in the field of public education are no longer in effect, and therefore these sections have been omitted. They read:

49-3701. Interracial schools prohibited.-It It shall be unlawful for any school, academy, college, or other place of learning to allow white and colored persons to attend the same school, academy, college, or other place of learning. [Acts 1901, ch. 7, Sec. 1; Shan., Sec. 6888a37; Code 1932, Sec. 11395.]

49-3702. Teaching of mixed classes prohibited.-It shall be unlawful for any teacher, professor, or educator in any college, academy, or school of learning to allow the white and colored races to attend the same school, or for any teacher or educator, or other person to instruct or teach both the white and colored races in the same class, school, or college building, or in any other place or places of learning, or allow or permit the same to be done with their knowledge, consent, or procurement. [Acts 1901, ch. 7, Sec. 2; Shan., Sec. 6888a38; Code, Sec. 11396.]

49-3703. Penalty for violations.-Any persons violating any of the provisions of this chapter, shall be guilty of a misdemeanor, and, upon conviction, shall be fined for each offense fifty dollars ($50.00), and imprisonment not less than thirty (30) days nor more than six (6) months. [Acts 1901, ch. 7, Sec. 3; Shan., Sec. 6888a39; mod. Code 1932, Sec. 11397.]

The adjectives "black" and "white" are inaccurate but understandable means of identifying the students to whom I refer. The terms "negroid" and "caucasoid" are technically more accurate in their description of people, but they are descriptive of groups which may include persons with physical characteristics usually associated with the other group, and I find it necessary here to make clear categorical distinctions. I will employ the words "Negro," "colored," and "black" interchangeably in this opinion

The Justice Department's plan would have had the following effect upon the percentage of black students attending predominantly white elementary schools in the system:

adopted plan proposed plan

------------ -------------

Raleigh-Egypt 14% 20%

Egypt 4 31

Millington East 13 22

Millington South 6 18

Coleman 11 11

Spring Hill 13 13

A parent from the Ellendale community testified that Ellendale parents would prefer the Government's plan to the Board's plan because under the latter plan they (white students from Ellendale) would have been left in the "overwhelming minority."

The county collects all the property taxes which finance the schools and transfers to the city its proportionate share of the revenue collected. In 1971, the city's share of county revenue was about 87%

The United States naval base had, in prior years, provided up to six busses to accommodate the children of Navy personnel. It now appears, however, that naval base authorities have decided that no busses will be made available to the county after the 1971-72 school year

Superintendent of Schools Barnes had testified that the Board had spent about one to two million dollars each year on school construction during the years of freedom of choice, and that the total spent was about ten to twelve million dollars

The figures which indicate the number of busses employed actually state the numbers of the highest-numbered bus in the system each year. In 1970-71, the highest numbered bus was number 167, but the system actually operated 153 busses

Year Busses Students Bussed

------- ------ ---------------

1963-64 144 20,408

1964-65 147 20,507

1965-66 155 20,209

1966-67 155 19,629

1967-68 160 18,992

1968-69 145 17,900

1969-70 167 16,918

1970-71 167 14,600