Memorandum in Support of Answer to Motion

     [||0195592d-f72a-4d20-aef1-b0fdd477d989||] —IN ‘THE DISTRICT COURT OF THE UNITED STATES 
FOR THE WESTERN DISTRICT OF NORTH CAROLINA 

~ Charlotte Division 
  

JAMES E. SWANN, et al., 

| Tr Plaintiffs, 

Ye. 

CHARLOTTE-MECKLENBURG BOARD 
OF EDUCATION; NORTH CAROLINA 
STATE BOARD OF EDUCATION; DR. 
A. CRAIG PHILLIPS, Superintendent 

+ of Public Instruction of the State of 
North Carolina, et als., 

| { | { | { A on en An. em 

Defendants. 

“AND CIVIL ACTION NO. 1974 
  

HONORABLE ROBERT H. SCOTT, 
Governor of the State of North Carolina; 
HONORABLE A. C. DAVIS, Controller 
of the State Department of Public In- 

~ struction; HONORABLE WILLIAM K, 
McLEAN, Judge of the Superior Court of 
‘Mecklenburg County, et als., 

Additional Parties Defendant. 

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MEMORANDUM IN SUPPORT OF ANSWER 
  

TO MOTION 
  

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This memorandum does not take any position against the proposition 

that racial qualities and conditions, as related to public school attendance, 

have been constitutionally prohibited. In other words, this memorandum 

is not directed against integration in the public schools, which is a legally 

established fact. It is the position of this memorandum that the busing of 

 



  

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public school children or the mere moving around or changing the 

“positions lof public school children, like pawns on a chess board, is 

constitutionally unsound and legally invalid. 

In their Motion to Add Additional Parties Defendant the plaintiffs 

carefully avoid any language relating to the busing of public school children 

to redress racial imbalances, although they well know that this is the 

central proposition involved, and this is the purpose for which they wish 

funds appropriated or allocated to purchase school buses. The plaintiffs - 

refer to the matter as "transportation of students living beyond 'walking dis- 

tance' from the schools to which assigned." They further refer to the 

matter as implementing orders directed by the court or refusal to expend 

public funds to implement the order of the Court or a seeking to obstruct 

and prevent implementation of the Court's order, or, again, that no efforts 

have been made "to secure the necessary buses for transporting students 

as directed by the Court." 

We have not had the privilege of reading the plans proposed to be 

implemented but it seems to be common knowledge between both the black 

and white that in certain instances it amounts to the transportation of 

public school students beyond and away from their neighborhood schools 

for the mere purpose of achieving a racial balance in these more distant 

facilities. 

The busing of public school students to achieve 
a mere racial balance is not supported by the 

Federal Constitution or by the statutes enacted 
by both the Federal and State Governments. 

  

  

  

  

Neither the Congress nor the General Assembly of North Carolina 

have authorized this type of public school transportation. The Congress in 

its definition of the word "desegregation'' specifically says: " * * * 'desegre- 

gation’ shall not mean assignment of students to public schools in order to 

overcome racial imbalance." (42 USCA 2000c(b) ) 

 



  

The Congress has also said: 

"Provided that nothing herein shall empower any official 
or court of the United States to issue any order seeking 
to achieve a racial balance in any school by requiring 
the transportation of any pupils or students from one 
school to another or one school district to another in . 
order to achieve such racial balance, or otherwise en- 
large the existing power of the Court to insure com- 
pliance with constitutional standards." ( 42 USCA 2000c(a) ) 

The Federal statute is broad and sweeping in this respect and is 

specifically directed to the power of any official or court of the United 
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States to issue any such order for the objective of racial balance. These 

clauses of the Federal statutes have not been declared unconstitutional by 

any 3-judge Federal court. 

It is provided by Chapter 1274 of the Session Laws of 1969, of the 

General Assembly of North Carolina, that no person shall be refused ad- 

mission or excluded from any public school on account of race, creed, 

color or national origin and that attendance zones cannot be drawn for that 

purpose. It is further provided that where there are geographic areas for 

attendance purposes or districts or zones for such attendance purposes that 

pupils shall be assigned to schools within such attendance areas or zones. 

Pupils may be assigned outside the attendance areas or zones to attend 

specialized schools or to attend schools for the mentally or physically 

handicapped or for any other reason which the board of education in its 

sole discretion deems sufficient. The Act prohibits any assignment of 

students on account of race "or for the purpose of creating a balance or 

ratio of race'and then states: "Involuntary busing of students in contra- .. 

vention of this article is prohibited, and public funds shall not be used for 

any such busing." The Act does not apply to temporary assignments for 

overcrowded conditions nor does it apply where parents or pupils make a 

choice pursuant to a freedom of choice plan adopted by the board of education. 

 



    
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This statute is in substantial agreement with the language used in 

the New York statute ( Article 65, Section 3201 of the New York Laws ), 

which, as we Sidevsiand. has been upheld by te New York courts. 

It is our contention that the busing of school children for the mere 

purpose of redressing racial balance is contrary to he due process clause 

and the equal protection clause of the Fourieonth Amendment. If is a 

violation of due process because it is an arbitrary diktat which has no 

belatinn to educational purposes and nowhere does it appear in the 

Constitution of the United States that children must be transported in buses 

away from their own neighborhood schools and in some cases for a con- 

siderable distance in order to achieve racial balance. Ii is a violation of | 

equal protection of the law because it creates discriminations as against 

the children who are transported beyond their closést school facility or 

neighborhood school, while other children attend a neighborhood school or 

| attend school facilities much nearer to their homes. Such busing creates 

~ arbitrary classifications of students for transportation purposes which 

have no rational or reasonable connection with educational purposes and 

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works a discriminatory hardship on pupils of both the black and white races. 

Plaintiffs are not entitled to any interlocutory, 
prelimimry, temporary or permanent injunction. 
  

  

It is true that Governor Scott has ordered that no funds be Spots to 

buy buses to be used in transporting pupils to redress racial imbalance. 

This would involve the expenditure of Sere million dollars and is Tho 

hibited by the North Carolina statute above cited, ‘which has not been de- 

clared to be unconstitutional by a 3-judge Federal court. It is, therefore, 

the duty of the Governor to prohibit such expenditure of funds under Chap- 

ter 1274 of the Session Laws of 1969, and, furthermore, the Governor of 

North Carolina has a right to prohibit the expenditure of funds for improper 

purposes as provided by the Executive Budget Act of the State of North Caro- 

lina ( Article 1, Chapter 143, of the General Statutes ). 

   



  

Adding the Governor as a party defendant and attempting to 

restrain him from the performance of his duties as Chief Executive of 

the State amounts to a suit against the State contrary to the Eleventh 

Amendment to the Constitution of the United States ( EPSTEIN v. 

MADDOX, 27 F. Supp. 613; ( affirmed 401 F. 2d 7; CITIZENS COMMITTEE 

FOR HUDSON VALLEY v. VOLPE, 297 F. Supp. 809; FIRST NATIONAL 

BEN. SOC. v. GARRISON, 58 F. Supp. 972; DUCKWORTH v. JAMES, 

267 F. 2d 224). | 

It is proposed to add A. c. Davis, who is Controller of the State 

Board of Education, as a party defendant in this case. Mr. Davis is the 

Executive Administrator of the State Board of Education in the supervision 

and management of the fiscal affairs of the Board. His powers and duties 

are fixed by Article 4 of Chapter 115 of the General Statutes, and he carries 

out the policies of the State Board of Biuchiion but has no authority to ini- 

tiate or create these policies. He is purely an administrative official and is 

not charged with any independent duties, and, therefore, should not be a 

party defendant in this case. 

The Federal District Court has no authority 

to enjoin or restrain the litigation pending 
in the State Court. 

  

  

  

We first deal with certain Federal statutes on this subject, and 

we find that 28 USCA 2283, is as follows: 

"A court of the United States may not grant an injunction 

to stay proceedings in a state court except as expressly 
authorized by Act of Congress or where necessary in 
aid of its jurisdiction, or to protect or effectuate it judg- 
ment." 

We think that 28 USCA 2281 also is applicable, which is as follows: 

"An interlocutory or permanent injunction restraining the 

enforcement, operation or execution of any state statute by 
restraining the action of any officer of such state in the en- 

forcement or execution of such statute or of an order made 

by an administrative board or commission acting under state 
statutes, shall not be granted by any district court or judge 

  

 



  

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thereof upon the ond of the unconstitutionality of such 

statute unless the application therefor is heard and de- 
termined by a district court of three judges under Section 
2284 of this Title." 

Certainly a judge of the Superior Court of the State has a right to 

entertain an action involving the construction of a State statute and to 

enjoin acts about to be committed that are invalid, and this is especially 

true where the status of the statute stands as constitutional until interpreted 

to the contrary by the State judge. The Shenae "where necessary in aid of 

its jurisdiction, or to protect or effectuate its Suderiniat is usually filed 

in bankruptcy matters or where there is property which is the subject of the 

Hiteniion and which the Federal court has under its express jurisdiction 

( AMALMAGATED CLOTHING WORKERS OF AMERICA v. RICHMAN 

BROTHERS, 348 U. 8. Bll, 99 L. ed. 600, 75 8. Ct. 452; TOUCEY v. 

NEW YORK LIFE INSURANCE COMPANY, 314 U. S. 118, 86 L. ed. 100, 62 

S. Ct. 139; CLINE v. BURKE CONSTRUCTION COMPANY, 260 U, S. 226, 

230, 43 5. Ct. 79, 67 L. ed. 226. 

There is no reason why the State court cannot proceed on the con- 

struction of its own State statute as measured against the State Constitution, 

and, for that matter, as measured against the Federal Constitution. 

In fact, as stated in the Richman Opinion, supra, there are three 
  

exceptions to interference with State court cases by Federal court injunctions, 

and these are as follows, and as stated in the Reviser's Notes, as follows: 

"An exception as to acts of Congress relating to bankruptcy 
was admitted, and the general S3enion substituted to cover 
all exceptions. 

"The phrase'in aid of its jurisdiction’ was added to conform to 
Section 1651 of this title and to make clear the recognized 
powers of the Federal courts to stay pr oceedings in Site cases 
removed to the district courts. 

"The exceptions specifically include the words'to protect or 
effectuate its judgments’, a lack of which the Supreme Court held 
that the Federal courts are without power to enjoin relitigation 
of cases and controversies fully adjudicated by such courts." 

 



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It will be seen that intervention by the Federal court should only be 

exercised in the face of the most compelling reasons and to avoid grave and 

irreparable injury ( BARNES v. DANVILLE, 337 F. 2d ai 503). 

No injunctions of any nature should be granted 
in this case at this time. 
  

  

Aclilly, the plaintiffs are asking for a mandatory injunction against 

. the defendants, State officials, in that they are asking the Court to compel... ......iou 

them to nullify the Order previously entered cutting off State funds for the 

purchase of buses. As stated in the case of W, A, MAC, , INC, v. GENERAL . ... 

- MOTORS CORPORATION, 260 F. 2d 886: 

""A preliminary injunction does not issue which ies to a 
plaintiff the actual advantage which woud be obtained in a 
final decree." E 

See also on this point: DUNN v. RETAIL CLERKS INTERNATIONAL 

ASSOCIATION, LOCAL 1529, 299 F. 2d 873, and VESTINGHOUSR ELECTRIC | 

CORPORATION v. SEWING MACHINE COMPANY, 256 F. 2d 806, 808. 

It does not make the case any better to request a temporary restrain- 

ing order or a preliminary injunction as the result is the same. In GREEN 

v. FAIR, 314 F. 200, the Court stated: 

"The relief sought here ( preliminary injunction ) is extra- 

“ordinary relief. It is granted only in exceptional cases." 
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The language in the case of UNITED STATES v. ADLER'S CREAMERY, 

107 F. 2d 987, is here appropriate: 

"The purpose of an injunction pendente lite is to guard against 
the change in conditions which will hamper or prevent the 
granting of such relief as may be found proper after the trial 
of the issues. Its ordinary function is to preserve the status 
quo and it is to be issued only upon a showing that there would 
otherwise be danger of irreparable injury. * * * While it may 
be granted to restore the status quo ante, it ought not to be 
used to give final relief before trial." 

  

And along this same line, see: CLUNE v. PUBL ISHERS ASSOCIA- 

. TION OF NEW YORK CITY, 214 F. Supp. 520, affirmed 314 F. 2d 343. 

It is respectfully submitted that a Federal District Judge should not 

be allowed to avoid the obvious intent of 28 USCA 2281, by denominating an 

order as a "temporary restraining order', which is in fact and effect a 

 



  

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mandatory injunction. The plaintiffs cannot make a showing of extra- 

ordinary circumstances and irreparable in] ary which would call into the 

case the authority of one district judge to enter a temporary restraining 

order which is proper in certain cases. It is no irreparable injury for the 

pupils to continue to go to the schools to which they have heretofore been 

assigned until this litigation is settled. The busing of public school pupils” = - 

to retain a mere racial balance is not so compelling and irreparable that 

great and untold damage will be done unless it is carried out. See, also," 

in this connection: GREEN v. FAIR, CCA-5, 314 F. 2d 200, where a Negro 

citizen of Mis sissippi made application for admission to the University of 

Mississippi and asked for an order requiring his immediate admission, and 

see also: GANTT v. CLEMSON COLLEGE, 208 F. Supp. 416. 

We ask the Court not to interfere with the litigation in the State 

court, not to grant a temporary or permanent injunction and to dismiss the 

Motion of plaintiffs as to making additional parties defendant, as well as 

the other relief sought in the Motion. 

Respectfully submitted, 

Kn i h —v lg 
  

ars Pa al of North Carolina 

(rds 70 Ba 2 
  

Deputy fier rney General 
I! 

oi Th } A. A avs ln 
  

Ran Attorney General 

P. O. Box 629 
Justice Building 
Raleigh, North Carolina 27602 

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