William J. Brennan, Jr.

“ 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. ”

“ Moreover, the Court of Appeals went on to consider the merits, holding, in agreement with the District Court, that 'we find no substantial evidence to support a finding that the Board was not proceeding to carry out the plan in good faith.' Ibid. [1] In the circumstances the question of the adequacy of 'freedom of choice' is properly before us. On the merits, our decision in Green v. County School Board, supra, establishes that the plan is inadequate to convert to a unitary, nonracial school system. As in Green, 'the school system remains a dual system. ”

“ 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. ”