Amicus Curiae Brief for the Classroom Teachers Association of the Charlotte-Mecklenburg School System, Inc.

     [||9f252cf3-b30d-49b4-b8d2-094a78687c94||] IN THE 

Supreme Court of the United States 
OCTOBER TERM, 1970 

. 281 

JAMES E. SWANN, et al., Petitioners, 

V. 

CHARLOTTE-MECKLENBURG BOARD OF 
EDUCATION, et al., 

No. 349 

CHARLOTTE-MECKLENBURG BOARD OF 
EDUCATION, et al., Petitioners, 

V. 

JAMES E. SWANN, et al. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT 

OF APPEALS FOR THE FOURTH CIRCUIT 

AMICUS CURIAE BRIEF FOR THE CLASSROOM TEACHERS 

ASSOCIATION OF THE CHARLOTTE-MECKLENBURG 

SCHOOL SYSTEM, INCORPORATED 

Sam J. Ervin, Jr. 
515 Lenoir Street 

Morganton, North Carolina 

Charles R. Jonas 

301 W. Main Street 

Lincolnton, N.C. 

Ernest F. Hollings 
141 East Bay Street 

Charleston, South Carolina 

  

  

Washington, D. C. - THIEL PRESS - 202 - 393-0625  



(i) 

TABLE OF CONTENTS 

Page 
Interestofthe Amicus... . ..... .. cieids ins 1 

Opinions Below. 0. san, sino a coro) 50h, 2 

Jurisdiction”... 20. LL. 3 

Questions Presented for Review... . 4. o.oo biiiiiinid onthe... 3 

Constitutional and Statutory Provisions Involved ........... 4 

SintementoftheCase, .; .",... .,... ... . ..... .....". 4 

Summary of Argument i... .... nln chad al, 14 

Argument Lc anndn obs ch cua ni ne oe 17 

I. The Charlotte-Mecklenburg Board of Education has 
complied with the Equal Protection Clause of the 
Fourteenth Amendment and the Supreme Court deci- 
cisions interpreting it by establishing and operating 
a unitary public school system, which receives and 
teaches students without discrimination on the basis 
of their race or color. Any racial imbalance remain- 
ing in any of the schools under the jurisdiction of 
the Board represents de facto segregation, which inno- 
cently results from the purely adventitious circum- 
stance that the inhabitants of particular areas in and 
adjacent to the City of Charlotte are predominantly 
Of ONEITAce inh ll son ln ie aL BLL BL 17 

II. The Equal Protection Clause of the Fourteenth 
Amendment does not require or empower a Federal 
Court to order a public school board to assign 
children to the schools it operates merely to balance 
the student bodies in such schools racially, or to 
bus children outside reasonable geographic attend- 
ance districts or zones to effect such purpose. The 
District Court ordered the Charlotte-Mecklenburg 
School Board to do both of these things, and the 
Circuit Court erred insofar as it affirmed the District 
CONTE OTdRY , . cer va svete nets oi sliiia 22 

III. The Fifth Section of the Fourteenth Amendment 
empowers Congress to enforce the Equal Protection 
Clause by appropriate legislation, the First Section  



  

(ii) 

  

Page 

of Article III of the Constitution empowers Congress 

to regulate the jurisdiction of United States District 

Courts and United States Circuit Courts of Appeals, 
and the Second Section of Article III of the Consti- 

tution empowers Congress to regulate the appellate 
jurisdiction of the Supreme Court. Congress exer- 
cised all of these powers in an appropriate fashion 
when it enacted Title IV of the Civil Rights Act of 

1964, which prohibits the assignment of students to 
public schools to balance the student bodies in such 

schools racially, and to bus them from some schools 

to other schools, or from some school districts to 

other school districts to effect such purpose. The 
Act’s prohibition on busing is absolute and deprives 

federal courts of jurisdiction to compel school boards 

to bus students to overcome racial imbalances in 

schools, even if such imbalances result from discrimi- 

natory school board action. The District Court order 

violated this Act by commanding the Charlotte- 

Mecklenburg School Board to do the things pro- 
hibited by it, and the Circuit Court joined in such 

violation insofar as it affirmed the District Court 

Order, icin shh anne sie 27 

IV. A school board has the power to devise and imple- 

ment any non-discriminatory plan for the assignment 

of children to the public schools it operates. The 
District Court not only rejected a non-discriminatory 

assignment plan submitted by the Charlotte-Mecklen- 

burg School Board, but it usurped and exercised the 

authority of the School Board in this respect by 

devising a plan of its own which commands the 
School Board to deny thousands of children admis- 
sion to their neighborhood schools, and to bus them 
to other schools to mix the races in the various 
schools in numbers or proportions satisfactory to 
the District Court. By so doing, the District Court 

ordered the School Board to deny to the thousands 
of children affected by its order admission to their 

neighborhood schools in violation of the Equal Pro- 

tection Clause, and to bus them to other schools or 

 



(iii) 

Page 

other school districts in violation of Section 407 (a) 

(2) of the Civil Rights Act of 1964. The Circuit 

Court concurred in these violations, and erred insofar 

as it affirmed the order of the District Court ......... 36 

COnCIUSION . . . sci ieee El He 40 

Appendix... 0. Au nde da hs ad A. l 

TABLE OF AUTHORITIES 

Cases: 

Alexander v. Holmes County Board of Education, 396 U.S. 

YO(1969) . ... 0 ouii ct. oles ie i simi ss 1+ spin Sunts vos 19,23 

Alexander v. Holmes County Board of Education, 396 U.S. 

PRIS969). .... da cL a a uh. 19, 23 

Avery v. Midland County, 390 U.S. 474 (1968) ........... 18 

Barry v. Mercein, S How, (US) 103, 119(1847) .......¢. 013.29 

Bell v. City School of Gary, Indiana (7 CA-1963), 324 F.2d 

v4 Sli Sed ee ae aie Te pT 25 

Board of School Commissioners of Mobile County v. Davis, 
11 Loed. U.S) QA) 26 (1963)... 7.500 5s viiimitte ols vinis oe 19 

Bolling v. Sharpe, 347 U.S. 497 (1954) .. ...covnvncntin vies 18 

Bradley v. School Board of City of Richmond, 383 U.S. 

103 (1965). ss vo nes dist cine sv sien sass ase 19 

Brown v. Board of Education of Topeka, 347 U.S. 483 
£1959) vice. is cies 3h se sides bh, sss saan aa passim 

Brown v. Board of Education of Topeka, 349 U.S. 294 
(1958)... . fl io ed ra Ly 18, 24 

Bush v. New Orleans Parish School Board, 364 U.S. 500 

(1960). 7.0. Con a La SEER Lau B BL 18 

Carter v. West Felicana Parish School Board, 396 U.S. 226 

(1969)... 0. 0. Jha we cS NUE. Bl 19 

Carter v. West Felicana Parish School Board, 396 U.S. 290 

(1970)... vo ives s vives dd REL 19 

Cary v. Curtis, 3 How. (US) 236,245(1845) ............ 29 

   



  

(iv) 

Page 

Chisholm v. Georgia, 2 Dall. (U.8.) 419,432 (17923) .....:.. 29 

Cooper v. Aaron, 353 US. 1,20(1958).... ..........vs. 18 

Crossv. Burke, 1461.8. 82,86 (1892) . ................. 29 

Cumming v. Richmond County Board of Education, 175 
US. 5281809)... civ vvnssiennin sais ss dit 18 

Daniels v. Railroad Co., 3 Wall. (U.S.) 250, 254 (1866) ...... 29 

Dowell v. Board of Education of the Oklahoma City Public 
Schools, 396 10.8. 269(1969) . .. .... 0r>rc> >>. 19 

Downs v. Board of Education of Kansas City, Kansas (10 

CA-1964), 336 F.2d 483 (1954) .... ci. sous nin ono 25 

Durousseau v. United States, 6 Cranch 307 (1810) ......... 29 

Ex Parte Bollman, 4 Cranch (U.S) 75,93(1307) .......... 29 

Ex Parte McCardle, 6 Wall, US.) 313 (1863). ............. 29 

Gong Lumv. Rice, 275 US. 7841927) ... ...o... vue, 18 

Goss v. Board of Education of Knoxville, 373 U.S. 683 

(1963)... . rr re. 19 

Green v. County School Board of New Kent County, 391 

LES 4301968)... ... sean sh ois siniminins 4 ans 6, 16, 19 

Griffin v. County School Board of Prince Edward County, 

377 US. 218 (1964)... . ... cia ies ee 19 

Keyes v. School District No. 1, Denver, 396 U.S. 1215 

(1970) +... J ad saa Dah sani ar dey On, 19 

Kline v. Burke Construction Co., 260 U.S. 226, 234 (1922) ... 29 

Kuntz v. Moffitt, 115U.8. 487 .497(1888) ........ -.. + El 

lauf v. E.G. Skinner & Co., 303 U.S. 323, 330 (1938) ...... 29 

Lockerty v. Phillipg, 319 US. 182 (1943)... ........ v:us 29 

Maxwell v. Bugbee, 250 U.S. 525.(1919) .. on =oo nicinisnisv oi = 17 

Missouri Pacific Railway Co. v. Mackey, 127 U.S. 205 - 

(1888). ial Sa lee ves 18 

Missouri v. Pacific Railway Co., 292 US. 13, 15 (1934) ...... 29 

Monroe v. Board of Commissioners of the City of Jackson, 

39 US. 450 (1968) . 0... . cnn ss sis uns nsn mins sll 19 

   



(v) 

Northcross v. Board of Education of the Memphis City 

Schools, 397 US. 232(1970) ..................... 1 

Plessy v. Perguson, 163 US. 537(1896).. ............... 

Raney v. Board of Education of the Gould School District, 

301 US. 443(1968) .......... i... iiss, 

Rosersv. Paul 382 US. 198(1965) ................... 

Sheldon v. Still, § How. (1/.5. 441 (1850) ............... 

Shuttlesworth v. Birmingham Board of Education, 358 U.S. 

101 (1958)... .. .. i... ci. ae tans 

State Board of Tax Commissioners v. Jackson, 283 U.S. 

521931)... .. i. re. es eta 

Stephan v. United States, 319 U.S. 423,426 (1943) ........ 

Swann v. Charlotte-Mecklenburg Board of Education, 343 
F.Supp. 667 (196%)... ................ ccs. 0... 

Swann v. Charlotte-Mecklenburg Board of Education, 369 

F222001966). .......... 0h... hs. icc iis. 

The Francis Wright, 105 US. 381,386 (1382) ............ 

Turner v. Bank of North America, 4 Dall. (U.S.) 8 (1799) ... 

United States v. Montgomery County Board of Education, 

305 U.S. 225(1969) . . . ... .. ccs ros srs ier, 

Walters v. St. Louis, 247 US. 231 (1934)... . .. .......... 

Watson v. City of Memphis, 373 U.S. 526(1963).. . . . . »..: ... 

Wiscart v. D’Auchy, 3 Dall. (U.S.) 321 (1796) 

Yakus v. United States, 321 U.S. 414 (1944) 

siiee. wines eee 8 w 

   



IN THE 

Supreme Court of the United States 
OCTOBER TERM, 1970 

No. 281 

JAMES E. SWANN, et al, Petitioners, 

V. 

CHARLOTTE-MECKLENBURG BOARD OF 
EDUCATION, et al., 

No. 349 

CHARLOTTE-MECKLENBURG BOARD OF 
EDUCATION, et al., Petitioners, 

V. 

JAMES E. SWANN, et al. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT 

OF APPEALS FOR THE FOURTH CIRCUIT 

AMICUS CURIAE BRIEF FOR THE CLASSROOM TEACHERS 

ASSOCIATION OF THE CHARLOTTE-MECKLENBURG 

SCHOOL SYSTEM, INCORPORATED 

INTEREST OF THE AMICUS CURIAE 

The Classroom Teachers Association of the Charlotte- 

Mecklenburg School System, Incorporated, is a non-profit 

membership organization in corporate form, which includes 

in its membership a substantial part of the 3,553 classroom 

teachers in the Charlotte-Mecklenburg School System and 

which devotes itself to the advancement of public educa- 

tion. The specific objectives of the organization and its 

members are to promote the interests of classroom teachers 

in the Charlotte-Mecklenburg School System, and to secure  



  

2 

to the students attending the schools of the System oppor- 

tunities to achieve by quality education their highest 

potentialities. 

The Classroom Teachers Association of the Charlotte- 

Mecklenburg School System and its members believe that 

the execution of the order of the United States District 

Court for the Western District of North Carolina and 

the judgment of the United States Circuit Court for the 

Fourth Circuit affirming such order in part seriously impair 

the educational opportunities offered by the Charlotte- 

Mecklenburg School System to the students in its schools, 

and for this reason the organization files this amicus 

curiae brief in support of the position of the Charlotte- 

Mecklenburg Board of Education, which harmonizes with 

this view. 

The parties to the proceedings in Nos. 281 and 349 have 

consented in writing to the filing of this brief, and the 

writings evidencing such consent have been filed with the 

Clerk. 

The members of the Supreme Court bar who submit this 

brief in behalf of the organization do so without compensa- 

tion in the hope that they may aid the Supreme Court to 

reach a decision which will restore tranquility to much 

troubled areas of our land and enable the public schools 

operating in them to function economically and efficiently 

as educational institutions. 

OPINIONS BELOW 

The opinion of the Court below consists of the opinion 

and judgment of the United States Court of Appeals filed 

May 26, 1970, which are not yet reported and which 

appear in the Appendix (Volume 3, pages 1262a to 1304a). 

In its opinion and judgment, the Court of Appeals 

reviewed and approved in part and remanded in part for 

further consideration the rulings and findings made by the 

   



3 

United States District Court in the following orders and 

documents: 

1. Order dated February 5, 1970 (81923-8393), as 

amended, corrected, and clarified on March 3, 1970 (921a). 

2. Supplementary Findings of Fact dated March 21, 

1970 (1198a-1220a). 

3. Supplemental Memorandum dated March 21, 1970 

(1221a-1238a). 

JURISDICTION 

The Supreme Court has jurisdiction to review this case 

by writ of certiorari under 28 U.S.C. 1254(1), and has 

accepted it for such purpose by granting writs to the peti- 

tioners in No. 281 and the petitioners in No. 349. 

QUESTIONS PRESENTED FOR REVIEW 

This case presents the following questions for review: 

1. Does a public school board comply with the Equal 

Protection Clause of the Fourteenth Amendment when 

it creates non-discriminatory attendance districts or zones 

and assigns all children, black and white, to neighborhood 

schools in the district or zone in which they reside without 

regard to their race? 

2. Does the Equal Protection Clause of the Fourteenth 

Amendment empower a federal court to order a public 

school board to assign children to the schools it operates to 

balance the student bodies in such schools racially or to 

bus children outside of non-discriminatory attendance dis- 

tricts or zones to effect such purpose? 

3. Does Title IV of the Civil Rights Act of 1964, which 

prohibits the assignment of students to public schools to 

balance the student bodies in such schools racially and to 

bus them from some schools to other schools or from some 

school districts to other school districts to effect such 

purpose, constitute appropriate legislation to enforce the 

Equal Protection Clause within the purview of the Fifth 

Section of the Fourteenth Amendment?    



  

4 

4. Does the order entered by the District Court and 

affirmed in part by the Circuit Court usurp and exercise 

the authority of the Charlotte-Mecklenburg Board of Edu- 

cation to devise and implement a non-discriminatory assign- 

ment plan conforming to the Equal Protection Clause, and 

require the Charlotte-Mecklenburg Board of Education to 

violate the Equal Protection Clause by treating in a differ- 

ent manner students similarly situated and by denying 

students admission to their neighborhood schools because 

of their race? 

The amicus curiae insists that the first, third, and fourth 

questions must be answered in the affirmative and that the 

second question must be answered in the negative. 

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED 

The case involves the first and second sections of the 

Fourteenth Amendment; the first and second sections of 

Article III of the Constitution; and Title IV of the Civil 

Rights Act of 1964. These constitutional and statutory 

provisions are printed in the Appendix. 

STATEMENT OF THE CASE 

A. The Charlotte-Mecklenburg Public School System 

The writ in No. 281 and the writ in No. 349 present to 

the Supreme Court for review the judgment entered by the 

United States Court of Appeals for the Fourth Circuit on 

May 26, 1970, in the civil action entitled James E. Swann 

and others, Plaintiffs, v. Charlotte-Mecklenburg Board of 

Education and others, Defendants. For ease of narration 

and understanding, James E. Swann and his associates in 

this litigation are hereafter called the plaintiffs, and the 

Charlotte-Mecklenburg Board of Education is hereafter 

designated as the School Board. 

The School Board operates the Charlotte-Mecklenburg 

Public School System in Charlotte and Mecklenburg County, 

North Carolina, political subdivisions of North Carolina. 

   



5 

Charlotte, which is the county seat of Mecklenburg County, 
is inhabited by 239,056 persons who are concentrated 
within the 64 square miles embraced by its city limits, an 

area larger than the District of Columbia. Mecklenburg 

County embraces 550 square miles, has an east-west span 

of 26 miles, a north-south span of 36 miles, and has a 

population of 352,006, exclusive of those residing within 

the area embraced by Charlotte. 

In the discharge of its state-assigned duties, the School 

Board operates 10 high schools, 21 junior high schools, and 
72 elementary schools to house and instruct the 84,500 
school children residing in Charlotte and Mecklenburg 

County. Of these school children, 24,000, or 29 percent, 

are black, and 60,500, or 71 percent, are white. Approxi- 

mately 95 percent of all the black children who reside 
within the limits of the City of Charlotte live in predomi- 
nately black residential sections in northwest Charlotte, and 
a substantial portion of the other black children in Meck- 
lenburg County reside in predominately black residential 
areas adjacent to it. (293a-298a). 

Prior to Brown v. Board of Education of Topeka, 347 U.S. 

483 (1954), the School Board operated the public schools of 

Charlotte and Mecklenburg County as racially segregated 

schools in conformity with the interpretation then placed 

upon the Equal Protection Clause of the Fourteenth Amend- 

ment. Subsequent to the Brown Case and prior to 1965, 

the School Board established an effective system of deter- 

mining admission to its public schools on a non-racial basis. 

It did this, and thus converted its formerly dual system 

into a unitary system by establishing non-discriminatory 

attendance districts or zones, and assigning the school 

children subject to its jurisdiction to their neighborhood 

schools irrespective of race. 

Inasmuch as some of the attendance districts or zones in 

rural Mecklenburg County and some of its suburban resi- 

dential districts or zones in or adjacent to Charlotte are 

extremely large, the School Board voluntarily established 

a transportation system for the sole purpose of carrying  



  

6 

children residing in these geographically large districts or 

zones to the nearest available schools. As a consequence, 

it now uses 280 buses to bus some 23,000 school children 

to rural and suburban schools. (864a) 

In 1965 the plaintiffs brought the instant action against 

the School Board in the United States District Court for 

the Western District of North Carolina seeking to obtain 

a compulsory desegregation decree. After hearing the evi- 

dence in the case, the District Court found that the School 

Board had complied with the requirement of the Equal 

Protection Clause and denied the decree sought by them. 

Swann v. Charlotte-Mecklenburg Board of Education, 243 

F.Supp. 667 (1965). This ruling was affirmed by the 

Circuit Court. Swann v. Charlotte-Mecklenburg Board of 

Education, 369 F.2d 29 (1966). 

B. The Plan Submitted by the Charlotte- 

Mecklenburg Board of Education 

Subsequent to the decision in Green v. County School 

Board of New Kent County, 391 U.S. 430 (1968), the 

plaintiffs filed a motion in the cause seeking further deseg- 

regation. (2a) 

Although it found as a fact that the “location of schools 

in Charlotte has followed the local pattern of residential 

development, including its de facto patterns of segregation” 

(3052), and that the School Board members ‘‘have achieved 

a degree and volume of desegregation of schools apparently 

unsurpassed in these parts and have exceeded the per- 

formance of any school boards whose actions have been 

reviewed in the appellate court decisions” (311a-312a), the 

District Court resumed hearings in the case on the ground 

that the Green Case had changed ‘the rules of the game.” 

(312a) 

It is to be noted that subsequently the District Court on 

its own motion reversed its previous findings that any racial 

imbalance in the Charlotte-Mecklenburg public schools was 

the result of de facto segregation by asserting that “‘there is 

   



7 

so much State action imbedded in and shaping these events 

that the resulting segregation is not innocent or ‘de facto’ 

and the resulting schools are not ‘unitary’ or ‘desegregated’.” 
(662a) The amicus curiae submits with all due deference 

that there is no testimony in the record to sustain this par- 

ticular finding. 

Pursuant to the orders entered by the District Court on 

April 23, 1969 (285a), June 20, 1969 (448a), August 15, 

1969 (579a), and December 1, 1969 (698a), the School 

Board filed desegregation plans (330a, 480a, 670a) which 

were rejected by the District Court. 

Meanwhile on December 2, 1969, the Court appointed 

Dr. John Finger, a resident of Rhode Island, as a special 

consultant to devise a desegregation plan for the guidance 

of the Court. (819a) Dr. Finger had originally entered the 

case as a partisan witness for the plaintiffs, and for this 

reason a good case can be made for the proposition that he 

lacked the impartiality which is desirable in one selected for 

the task of assisting a judge in keeping the scales of justice 

evenly balanced between adverse litigants. (1279a) 

While the District Court orders and the School Board 

plans mentioned above shed light on the School Board’s 

devotion to the neighborhood school concept, and its reluc- 

tance as an elected public body to engage in excessive and 

expensive busing of school children, the subsequent School 

Board plan of February 5, 1970, and the subsequent District 

Court order of February 5, 1970, relating to it really illumi- 

nate the issues which now confront the Supreme Court. 

(726a-748a, 819a-839a) 

By this plan, the School Board proposed that attendance 

districts or zones should be drastically gerrymandered in 

such a manner as to include as many blacks as possible in 

each district or zone, and that all school children subject to 

its jurisdiction should be required to attend the school 

appropriate to their educational standings in the district or 

zone of their residence. The plan would have accomplished 

a racial mixture of school children in all of the 103 schools  



  

8 

in the system, except three elementary white schools 

located in neighborhoods inhabited exclusively by members 

of the white race. (726a-748a) 

The School Board plan contemplated that from 17 per- 

cent to 36 percent of the student body in nine of the ten 

senior high schools in the system would be black; that not 

more than 38 percent of the student body in 20 of the 21 

junior high schools in the system would be black; and that 

not more than 40 percent of the student body in 60 of the 

72 elementary schools in the system would be black. 

Under the School Board plan, the remaining high school, 

Independence High, would be 2 percent black and 98 per- 

cent white; the remaining junior high school, Piedmont 

Junior High, would be 90 percent black and 10 percent 

white; and all of the 12 remaining elementary schools, 

except the three white elementary schools, would be 83 

percent to 1 percent black. (726a-748a) 

The School Board judged it to be impossible to desegre- 

gate the three white elementary schools, and to further 

desegregate the nine predominately black elementary schools 

by geographic districting or zoning because of the de facto 

segregation prevailing in the residential areas in which the 

children assigned to these 12 elementary schools lived. 

(730a-732a) The District Court made a specific finding in 

its Supplemental Findings of Fact of March 21, 1970, 

which establishes the validity of the School Board’s conclu- 

sion concerning Independence High, Piedmont Junior High, 

and the 9 predominately black elementary schools, all of 

which are located in northwest Charlotte or its environs. 

The District Court expressly found that “both Dr. Finger 

and the School Board staff appear to have agreed, and the 

Court finds as a fact that for the present at least there is 

no way to desegregate the all-black schools in northwest 

Charlotte without providing (or continuing to provide) bus 

or other transportation for thousands of children. All plans 

and all variation of plans considered for this purpose lead 

in one fashion or another to that conclusion.” (1208a) 

   



9 

The amicus curiae submits that it beggars imagination to 

conjecture how any plan could have obtained a greater 

degree of racial integration by gerrymandering attendance 

districts or zones in a political subdivision where white 

children outnumber black children 71 to 29, and where 

most of the black children are concentrated residentially in 

an area inhabited exclusively by members of their race. 

The School Board plan did not stop with proposing such 

a high degree of racial integration among the student bodies 

in the schools subject to its jurisdiction. It made these 

three additional proposals: 

1. That the faculty of each school should be assigned in 

such a manner that the ratio of black teachers to white 

teachers in each school would be approximately 1 to 3 in 

accordance with the ratios in the entire faculty of the 

system (737a); 

2. That the School Board shculd furnish 4,935 addi- 

tional students in-district or in-zone transportation to the 

schools in the proposed gerrymandered attendance districts 

or zones in accordance with the North Carolina law which 

forbids such transportation within one and one-half mile 

distances (736a); and 

3. That any black child in any school having more than 

30 percent of his race in its student body should be allowed 

to transfer to any school having less than 30 percent of his 

race; whereas a white child should be permitted to transfer 

to another school only if the school he is attending has 

more than 70 percent of his race and the school to which 

he seeks transfer is less than 70 percent white. (734a-735a) 

At the same time, Dr. Finger submitted to the District 

Court his plan of desegregation which contemplated that 

the School Board should be required by the Court to deny 

approximately 23,000 additional children admission to the 

neighborhood schools in the districts or zones of their resi- 

dence, and to transport them by bus or otherwise substan- 

tial distances in order to produce a greater racial mixture  



  

10 

in student bodies. (819a, 825a-827a, 8292a-839a, 1198a, 

1208a-1214a, 1231a-1234a, 1268a-1269a) 

C. The Order of the District Court 

On February 5, 1970, the District Court entered an 

order approving the School Board plan, subject to certain 

drastic conditions and revisions recommended by Dr. Finger. 

(819a-839a) By adopting these conditions and revisions, 

the District Court commanded the School Board to do 

these things: 

1. To deny hundreds of black high school students 

admission to a nearby high school which would have had 

a racial composition of 36 percent black and 64 percent 

white under the School Board plan, and to bus them from 

their residences in northwest Charlotte through center-city 

traffic a distance of some 12 or 13 miles to Independence 

High School, which is located in a white suburban residen- 

tial area; 

2. To deny several thousands of black junior high school 

students admission to their neighborhood junior high schools 

in the inner city, and to bus them substantial distances to 

nine predominately white suburban schools located in other 

attendance districts or zones; and 

3. To deny thousands of black and thousands of white 

elementary school children admission to 31 elementary 

schools located within their respective attendance districts 

or zones, and to bus them distances approximating 15 miles 

to elementary schools situated in other attendance districts 

Or zones. 

The sole purpose of the District Court in ordering the 

School Board to dislocate and bus the hundreds of black 

high school students to Independence High School was to 

make Independence High less white, and the sole purpose 

of the District Court in ordering the School Board to dis- 

locate and bus several thousands of junior high school 

students was to reduce the percentage of blacks in Piedmont 

Junior High from 90 percent to 32 percent. (825a-826a) 

   



11 

The sole purpose of the order of the Court commanding 

the School Board to dislocate and bus thousands of ele- 

mentary school children was to alter the racial composition 

of the student body in 9 predominately black inner-city 

schools and in 24 predominately white suburban schools. 

To accomplish this purpose, the District Court commanded 

the School Board to dislocate and bus thousands of black 

first, second, third, and fourth grade students from 9 pre- 

dominately black inner-city schools to 24 predominately 

white suburban schools, and to dislocate and bus thousands 

of white fifth and sixth grade students from the 24 pre- 

dominately white suburban schools to the 9 predominately 

black inner-city schools. (826a) 

The order of the District Court did not stop with these 

things. It further ordered the School Board to establish 

and implement a continuing program of assigning students 

throughout the school year “for the conscious purpose of 

maintaining each school * * * in a condition of desegrega- 

tion.” (824a) 

The record clearly discloses the reasoning which prompted 

the District Court to seek to achieve the purposes of its 

order. 

Prior to its order of February 5, 1970, namely, on April 

24, 1969, the District Court manifested its disapproval of 

the School Board’s adherence to the neighborhood school 

concept by this statement: “Today people drive as much as 

40 or 50 miles to work; 5 to 10 miles to church; several 

hours to football games; all over the country for civic 

affairs of various types. The automobile has exploded 

the old-fashioned neighborhood * * * If this Court were 

writing the philosophy of education, he would suggest that 

educators should concentrate on planning schools as educa- 

tional institutions rather than as neighborhood proprietor- 

ships.” (306a) 

When it entered its order of February 5, 1970, the 

District Court justified adding the conditions and revisions 

recommended by Dr. Finger on the ground that the School 

   



  

12 

Board plan “relies almost entirely on geographical attend- 

ance zones,’ while “the Finger plan goes further and pro- 

duces desegregation of all the schools in the system.” 

(819a) 

What has been said makes it manifest that the District 

Court entertained the opinion that the Equal Protection 

Clause of the Fourteenth Amendment makes it obligatory 

for a school board to mix student bodies racially in every 

school subject to its jurisdiction if children are available for 

mixing, and that a school board must deny a sufficient 

number of school children admission to their neighborhood 

schools and bus them to schools elsewhere either to over- 

come racial imbalances in their neighborhood schools or in 

the schools elsewhere, regardless of whether such racial 

imbalances are produced by arbitrary or invidious discrimi- 

nation on the part of the school board or simply result 

from adventitious de facto residential segregation or other 

cause. 

The amicus curiae has not undertaken to state with 

exactitude the number of additional school children which 

the District Court ordered the School Board to deny admis- 

sion to their neighborhood schools and to bus from one 

school to another or from one school district to another, or 

the additional cost which the carrying out of the District 

Court’s order in this respect will impose upon the School 

Board. 

This action of the amicus curiae has been deliberate 

because these matters are in serious dispute between the 

School Board and the District Court. 

When the District Court entered its order of February 5, 

1970, and thereby adopted the Finger plan in virtually its 

entirety, the School Board estimated that the order required 

it to bus 23,384 additional students an average round trip 

of 30 miles each school day, and that to do this the School 

Board would have to acquire 526 additional buses and 

additional parking spaces at an original capital outlay of 

$3,284,448.94; and thereafter expend each year an addi- 

   



13 

tional $1,065,391.98 in employing additional personnel and 

defraying other operating costs. (853a, 866a) 

On March 3, 1970, the District Court modified its order 

of February 5, 1970. (921a) The School Board then calcu- 

lated that the order as modified will require it to transport 

19,285 additional students and to purchase for such purpose 

422 additional buses and additional parking spaces at an 

original capital outlay of $2,369,100.00; and thereafter to 

expend each year for additional personnel and operating 

expenses of such buses $284,800.00. (1269a-1270a) 

The Court estimated that the execution of its order as 

modified would require the School Board to bus 13,300 

additional students and to purchase for such use 138 addi- 

tional buses at an original capital outlay of $745,200.00; 

and to expend thereafter annually $266,000.00 for operat- 

ing costs of such additional buses, exclusive of what it will 

have to expend to compensate any additional personnel 

necessary for their operation. (1259a-1261a, 1269a) 

The Court arrived at its figures by suggesting that the 

School Board could reduce its estimate of the expenses 

incident to busing the thousands of children affected by its 

order by drastically staggering school openings and closings. 

The School Board replied to this suggestion by asserting 

that the suggested staggering of school openings and closings 

would require some children to leave home as early as 6:30 

a.m. and prevent some of them from returning home before 

5:00 p.m. (864a-865a) 

D. The Judgment of the United States Court of 

Appeals for the Fourth Circuit 

At the instance of the School Board, the United States 

Court of Appeals for the Fourth Circuit reviewed the orders 

of the District Court. On May 26, 1970, the Circuit Court 

rendered its judgment affirming the orders of the District 

Court insofar as they related to the assignment and busing 

of senior high school and junior high school students, and  



  

14 

remanding to the District Court for further consideration 
the provisions of the order of the District Court relating to 
the assignment and busing of elementary school students. 
(1262a-1304a) 

In making this remand, the Circuit Court adjudged that 
“not every school in a unitary system need be integrated,” 
and adopted a ‘“‘test of reasonableness—instead of one that 
calls for absolutes.” (1267a) 

The writ of certiorari granted to the School Board pre- 
sents for review the validity of the Circuit Court ruling 
approving the orders of the District Court relating to the 
assignment and busing of senior high school and junior high 
school students and the writ of certiorari granted to the 
original plaintiffs presents for review the question of the 
validity of the ruling of the Circuit Court vacating the 
order of the District Court relating to the assignment and 
busing of elementary school students. 

Subsequent to these events, namely, on August 3, 1970, 
the District Court reinstated and reaffirmed its order of 
February 5, 1970, in respect to the assignment and busing 
of the elementary school students. (1320a) While the 

validity of this particular order may not be before the 

Supreme Court, the question which it raises is involved in 

the matter to be reviewed under the writ granted to James 

E. Swann and those associated with him in this litigation. 

The amicus curiae understands that the School Board has 

filed an yet unprinted motion with the Supreme Court for 

a stay of the order entered by the District Court on August 

3, 1970, after the hearing of the case in the Circuit Court. 

SUMMARY OF ARGUMENT 

In the final analysis, the questions presented for review 

in this case do not arise out of any real controversy in 

respect to the testimony. They arise out of a fundamental 

disagreement between the School Board, on the one hand, 

and the District Court and some of the Circuit Court 

   



I5 

Judges, on the other, with respect to how the Equal Protec- 

tion Clause applies to the assignment of students to public 

schools. 

The view of the School Board may be epitomized in this 

fashion: 

The Equal Protection Clause applies only to State action 

which is arbitrary or invidious, and, hence, it leaves a public 

school board, acting as a State agency, entirely free to 

assign students to its schools by any method satisfactory to 

itself if such method is not arbitrary or invidious. A public 

school board acts arbitrarily or invidiously if it assigns 

students to its schools for racial reasons, but a public 

school board does not act arbitrarily or invidiously if it 

assigns students to its schools for non-racial reasons, such 

as the promotion of the efficiency of school administration, 

the economy of school administration, or the convenience 

of the students or their parents. This being true, the Equal 

Protection Clause does not impair in any way the power of 

a public school board to create fairly drawn geographic 

attendance districts or zones, and to assign all students 

without regard to their race to neighborhood schools in 

the respective districts or zones in which they reside even 

though such action may result in some racial imbalances 

in the schools serving areas predominately inhabited by 

members of one race. 

The view of the District Court and some of the Circuit 

Court Judges may be summarized in this way: 

It is highly desirable from an educational viewpoint to 

mix students in public schools racially in the highest pos- 

sible degree. Hence, the Equal Protection Clause imposes 

upon a public school board the positive duty to balance 

racially all the schools it operates if black and white chil- 

dren are available for this purpose; and to deny school 

children admission to their neighborhood schools and bus 

them to other schools in other areas, no matter how distant, 

in sufficient numbers to effect such racial balancing.  



  

16 

The School Board refutes this proposition by saying that 

the Equal Protection Clause does not require action which 

may be desirable; it merely prohibits action which is arbi- 

trary or invidious. 

When it is stripped of irrelevancies and surmises, the 

record discloses a surprisingly simple state of facts which 

are relatively free of conflict insofar as they relate to the 

crucial issues. 

After the first Brown Case, 347 U.S. 483 (1954), the 

School Board converted its previously dual system of 

schools into a unitary system of schools within which no 

child was excluded because of the child’s race. The School 

Board did this by a geographic assignment plan applicable 

in like manner to all children without regard to their race. 

Its action in this regard was adjudged to be in compliance 

with the Equal Protection Clause by both the District Court 

and the Court of Appeals. 

Subsequent to the Green Case, 391 U.S. 430 (1968), the 

District Court ordered the School Board to submit another 

plan for the desegregation of its schools. Pursuant to this 

order, the School Board proposed a plan which was reason- 

ably designed to secure the maximum amount of racial 

mixture obtainable in the student bodies in its schools 

without abandonment of the neighborhood school concept 

by restructuring its geographic attendance districts or zones, 

and assigning all of the children subject to its jurisdiction 

without regard to their race to their respective neighbor- 

hood schools in the districts or zones in which they reside. 

The Court rejected the School Board plan simply because 

it did not racially balance one senior high school out of the 

system’s ten senior high schools, one junior high school out 

of the system’s 21 junior high schools, and nine predomi- 

nately black and three predominately white elementary 

schools out of the system’s 72 elementary schools. 

Instead of approving the reasonable plan submitted by 

the School Board, the District Court, in essence, adopted 

the Finger Plan which requires the School Board to deny 

   



17 

thousands of children admission to their neighborhood 

schools, and to bus them to other schools in other areas 

merely to eliminate the racial imbalances in these particular 

schools. The School Board insists that the action of the 

District Court was not only inconsistent with the Equal 

Protection Clause, but violates Title IV of the Civil Rights 

Act of 1964, and that the Circuit Court erred insofar as it 

approved the action of the District Court. 

ARGUMENT 

I 

The Charlotte-Mecklenburg Board of Education 
has complied with the Equal Protection Clause 

of the Fourteenth Amendment and the Supreme 

Court decisions interpreting it by establishing and 
operating a unitary public school system, which 

receives and teaches students without discrimi- 
nation on the basis of their race or color. Any 
racial imbalance remaining in any of the schools 
under the jurisdiction of the Board represents de 

facto segregation, which results from the purely 
adventitious circumstance that the inhabitants of 
particular areas in and adjacent to the city of 

Charlotte are predominantly of one race. 

The Equal Protection Clause of the Fourteenth Amend- 

ment, which was certified to be a part of the Constitution 

on July 28, 1868, forbids a state to “deny to any person 

within its jurisdiction the equal protection of the laws.” 

By these words, the Equal Protection Clause requires a 

state to treat in like manner all persons similarly situated. 

State Board of Tax Commissioners of Indiana v. Jackson, 

283 US. 527 (1931); Maxwell v. Bugbee, 250 U.S. 525 

(1919). The clause does not require identity of treatment. 

Walters v. St. Louis, 347 U.S. 231 (1934). It permits a state 

to make distinctions between persons subject to its jurisdic- 

tion if the distinctions are based on some reasonable classi-  



  

18 

fication, and all persons embraced within the classification 

are treated alike. It merely outlaws arbitrary or invidious 

discrimination. Avery v. Midland County, 390 U.S. 474 

(1968); Missouri Pacific Railway Co. v. Mackey, 127 U.S. 

205 (1888). 

From July 28, 1868, until May 17, 1954, the Equal Pro- 

tection Clause of the Fourteenth Amendment was inter- 

preted to sanction the “separate but equal doctrine,” which 

permitted a state to segregate school children in its public 

schools on the basis of race when it furnished equal facili- 

ties for the education of the children of each race. Gong 

Lum v. Rice, 275 U.S. 78 (1927); Cumming v. Richmond 

County Board of Education, 175 U.S. 528 (1899); Plessy 

v. Ferguson, 163 U.S. 537 (1896). 

On May 17, 1954, the Supreme Court handed down its 

historic decision in Brown v. Board of Education of Topeka, 

347 U.S. 483 (1954), adjudging “that in the field of public 

education the doctrine of ‘separate but equal’ has no place” 

and holding that a state violates the Equal Protection Clause 

if it denies any child admission to any of its public schools 

on account of the child’s race. 

On the same day the Supreme Court handed down 

Bolling v. Sharpe, 347 U.S. 497 (1954), ruling that the Due 

Process Clause of the Fifth Amendment imposes the same 

inhibition on the public schools of the District of Columbia 

that the Equal Protection Clause does on the public schools 

of a state, and one year later the Supreme Court announced 

its implementing decision in second Brown, which is 

reported as Brown v. Board of Education of Topeka, 349 

U.S. 294 (1955). 

Since these decisions the Supreme Court has applied the 

Equal Protection Clause to varying factual situations arising 

in various Southern public school districts in the following 

cases: Cooper v. Aaron, 358 U.S. 1, 20 (1958); Shuttles- 

worth v. Birmingham Board of Education, 358 U.S. 101 

(1958); Bush v. Orleans Parish School Board, 364 U.S. 500 

(1960); Watson v. City of Memphis, 373 U.S. 526 (1963); 

   



19 

Goss v. Board of Education of Knoxville, 373 U.S. 683 

(1963); Griffin v. County School Board of Prince Edward 

County, 377 U.S. 218 (1964); Bradley v. School Board of 

City of Richmond, 382 U.S. 103 (1965); Rogers v. Paul, 

382 U.S. 198 (1965); Green v. County School Board of 

New Kent County, 391 U.S. 430 (1968); Raney v. Board 

of Education of the Gould School District, 391 U.S. 443 
(1968); Monroe v. Board of Commissioners of the City of 

Jackson, 391 U.S. 450 (1968); United States v. Montgomery 

County Board of Education, 395 U.S. 225 (1969); Alexan- 

der v. Holmes County Board of Education, 396 U.S. 19 

(1969); Dowell v. Board of Education of the Oklahoma 

City Public Schools, 396 U.S. 269 (1969); Carter v. West 

Felicana Parish School Board, 396 U.S. 226 (1969); Carter 

v. West Felicana Parish School Board, 396 U.S. 290 (1970); 

and Northcross v. Board of Education of the Memphis City 

Schools, 397 U.S. 232 (1970). 

Besides, individual Supreme Court Justices, acting as 

Circuit Justices, have expressed opinions on the subject 

in these cases: Board of School Commissioners of Mobile 

County v. Davis, 11 L. ed. 2d 26 (1963); Keyes v. School 

District No. 1, Denver, 396 U.S. 1215 (1970); and Alexan- 

der v. Holmes County Board of Education, 396 U.S. 1218 

(1969). 

The record in the instant case embraces hundreds of 

pages of evidence, orders, and judgments, and for that 

reason, the case lends itself to much writing. But the issues 

arising in the case are simple, and it would complicate that 

simplicity to analyze the cited decisions in detail. In their 

ultimate analysis, they interpret the Equal Protection Clause 

as follows: 

1. The Equal Protection Clause makes it unconstitu- 

tional for a state to deny any child admission to any public 

school it operates on account of the child’s race. 

2. In consequence, the Equal Protection Clause imposes 

upon a state, acting through its appropriate agencies, the 

responsibility to establish a system of determining admis- 

sion to its public schools on a non-racial basis.  



20 

  

3. A state, which operated a racially segregated system 

of public schools on May 17, 1954, fulfills this responsi- 

bility by converting its dual public school system into a 

unitary public school system. 

4. A unitary public school system is one “within which 

no person is to be effectively excluded from any school 

because of race or color.” 

When the Equal Protection Clause as thus interpreted is 

applied to the facts in this case, it is obvious that the 

School Board has fully converted its Pre-Brown dual school 

system into a unitary school system within which no child 

is actually excluded from any school because of race or 

color. The School Board has done this by creating non- 

discriminatory attendance districts or zones and assigning 

all children, black and white, to neighborhood schools in 

the district or zone in which they reside without regard to 

their race. 

These conclusions are explicit in the rulings made by the 

District Court and the Circuit Court in 1965 and 1966. 

Swann v. Charlotte-Mecklenburg Board of Education, 243 

F.Supp. 667 (1965); Swann v. Charlotte-Mecklenburg Board 

of Education, 369 F.2d 29 (1966). They are implicit in the 

findings made by the District Court in its order of April 

23, 1969, that the School Board had ‘achieved a degree of 

desegregation of schools apparently unsurpassed in these 

parts” and had “exceeded the performance of any school 

board whose actions have been reviewed in the appellate 

court decisions,” (311a-312a) and that the Schools of 

Charlotte, in essence, conform to de facto patterns of resi- 

dential segregation. (305a) 

To be sure, the District Court, acting sua sponte, under- 

took to recall these findings in its Memorandum Opinion 

of November 7, 1969, and to assert that racial imbalances 

in the Schools of Charlotte are ‘not innocent or de facto.” 

(662a) 

   



21 

The amicus curiae submits in all earnestness that there 

is no evidence in the record to sustain the District Court’s 

assertion in this respect. Be this as it may, the Supreme 

Court is empowered in cases of an equitable nature and 

cases involving constitutional questions to review the evi- 

dence and make its own findings. If it follows this course 

in this case, the Supreme Court will be impelled to the 

conclusion that there is not a vestige of state-imposed seg- 

regation in the Charlotte-Mecklenburg School System. 

Besides, the District Court’s assertion that racial imbal- 

ances in the schools of Charlotte are “not innocent or de 

facto” is totally repudiated by its subsequent finding that 

there is no way to desegregate the black schools in north- 

west Charlotte without transporting thousands of children 

by bus or other means. (1208a) 

When all is said, the School Board went far beyond the 

call of any duty imposed upon it by the Equal Protection 

Clause when it proposed in its plan of February 2, 1970, 

to gerrymander attendance districts or zones in order to 

achieve the highest degree of desegregation obtainable 

without virtual abandonment of the neighborhood school 

concept. The amicus curiae expresses no opinion as to 

whether this proposal is repugnant to the constitutional or 

legal rights of any child. 

   



22 

  

II. 

The Equal Protection Clause of the Fourteenth 
Amendment does not require or empower a 

Federal Court to order a public school board to 

assign children to the schools it operates merely 
to balance the student bodies in such schools 
racially, or to bus children outside reasonable 
geographic attendance districts or zones to effect 
such purpose. The District Court ordered the 

Charlotte-Mecklenburg School Board to do both 
of these things, and the Circuit Court erred 

insofar as it affirmed the District Court order. 

The facts make it clear that the order entered by the 

District Court on February 5, 1970, requires racial balanc- 

ing in the Charlotte-Mecklenburg School System and the 

busing of thousands of children outside their geographic 

attendance districts or zones to effect such balancing. 

Indeed, the District Court virtually admits this to be true 

by setting forth in its Supplemental Findings of Fact of 

March 21, 1970, a specific finding that there is no other 

way to desegregate the black schools in northwest Charlotte. 

(1208a) 

Upon the entire record, the conclusion is inescapable 

that the District Court fell into error because it honestly 

believed that the Equal Protection Clause and certain deci- 

sions interpreting it impose upon a public school board an 

absolute duty to do these things: 

1. To balance racially to the highest degree possible all 

the schools subject to its control if black and white children 

are available for that purpose anywhere within the territory 

subject to its jurisdiction, no matter how vast such territory 

may be; and 

2. To effect such racial balancing by denying both black 

and white children admission to their neighborhood schools 

and busing them to other schools in other areas in suffi- 

cient numbers to overcome racial imbalances either in their 

neighborhood schools or in the other schools, regardless of 

   



23 

whether the racial imbalances result from de facto residen- 

tial segregation or other cause, and regardless of these other 

factors: the distances the children are to be bused, the time 

required for their busing, the impact of their exclusion 

from their neighborhood schools and their busing upon 

their minds and hearts, the effect of these things upon the 

management of the homes which must nurture them, the 

traffic hazards involved, and the additional expense foisted 

upon heavily burdened taxpayers. 

There is no other rational explanation for the court order 

which disrupts the lives of thousands of school children and 

the management of the thousands of homes from which 

they come, and diverts tremendous sums of tax-raised 

moneys from the enlightenment of their minds to the 

busing of their bodies. 

The Equal Protection Clause does not require any court 

to enter any such order. It does not empower any court 

to enter any such order. Indeed, it forbids any court to 

do so. 

As interpreted in the first Brown Case, 347 U.S. 483 

(1954), and all subsequent Supreme Court decisions rele- 

vant to the subject, the Equal Protection Clause forbids a 

public school board, which acts as a state agency, to deny 

any child admission to any school it operates on account of 

the child’s race. A public school board obeys the Clause by 

maintaining a unitary school system, i.e., a school system 

“within which no person is to be effectively excluded from 

any school because of race or color.” Northcross v. Board 

of Education of the Memphis City Schools, 397 U.S. 232 

(1970); Alexander v. Holmes County Board of Education, 

396 U.S. 19 (1969). See also the opinion of Mr. Justice 

Black, acting as Circuit Justice, in Alexander v. Holmes 

County Board of Education, 396 U.S. 1218 (1969). 

The power to assign children to state supported schools 

belongs to the public school board which operates them. 

The Equal Protection Clause does not undertake to transfer 

this power to the Federal Courts. It merely subjects the  



  

24 

exercise of the power by the public school board to this 

limitation: The board must not exclude any child from any 

school it operates because of the child’s race. 

If it faithfully observes this limitation upon its power, a 

public school board has the right to assign children to the 

schools it operates in any non-discriminatory fashion satis- 

factory to itself. 

The School Board exercised this right when it created non- 

discriminatory attendance districts or zones and assigned all 

children, whether black or white, to neighborhood schools 

in the districts or zones of their residence without regard to 

race. 

Since the children are similarly situated and the School 

Board treats them exactly alike, its action is in complete 
harmony with the Equal Protection Clause. It accords, 

moreover, with the implementing decision in the second 

Brown Case, 349 U.S. 294 (1955), which expressly recog- 

nizes that a school board may employ non-discriminatory 

geographic zoning of school districts “to achieve a system 

of determining admission to the public schools on a non- 

racial basis.” 

As is true in respect to virtually every city of any size in 

our land, the different races are concentrated to a substan- 

tial degree in separate residential areas in Charlotte, and 

for this reason the School Board’s non-discriminatory geo- 

graphic zoning and assignment program necessarily results 

in some racial imbalances in some schools. 

Notwithstanding this, the order of the District Court 

commanding the School Board to exclude thousands of 

children from their neighborhood schools and to bus them 

long distances to other schools to overcome these racial 

imbalances is without support in the Equal Protection 

Clause. 

This is true for an exceedingly plain reason. The Equal 

Protection Clause does not prohibit any discrimination 

except that which is arbitrary or invidious. 

   



25 

It inevitably follows that where school attendance areas 

are not arbitrarily or invidiously fixed so as to include or 

exclude children of a particular race, the Equal Protection 

Clause does not prohibit a state or local school board from 

requiring that the children living in each attendance area 

attend the school in that area, even though the effect of 

such a requirement, in a locality where the different races 

are concentrated in separate residential areas, is racial imbal- 

ance or de facto segregation in the schools. 

The conclusion that the Equal Protection Clause does 

not impose upon a public school board any mandate to 

remove any racial imbalance in its schools occasioned by 

de facto residential segregation or non-discriminatory geo- 

graphic assignments is expressly supported in Bell v. School 

City of Gary, Ind. (71 CA-1963), 324 F.2d 209, and Downs 

v. Board of Education of Kansas City, Kansas (10 CA-1964), 

336 F.2d 998. Moreover, it is compelled by first Brown, 

347 U.S. 483 (1954), and all the subsequent Supreme Court 

cases applying its holding, as well as by the language of the 

Equal Protection Clause itself.! 

Despite the fact that the Charlotte-Mecklenburg School 

System is in the South, racial imbalances produced in its 

schools by de facto residential segregation are just as inno- 

cent as racial imbalances produced in the public schools of 

the North by the same cause, and are equally exempt from 

federal interference, whether legislative, executive, or judi- 

cial, under the Equal Protection Clause, which, as already 

pointed out, condemns no discrimination except that which 

is arbitrary or invidious. 

While such action may not be customary in briefs, the amicus 
curiae wishes to note that this conclusion is supported by the text 
writer in 15 Am. Jur. 2d, Civil Rights, Section 39, Page 433, and 
by one of the most recent commentaries on the Constitution of 
the United States, i.e., Bernard Schwartz’s “Rights of the Person,” 
Volume II, Section 501, Page 593-596.  



  

26 

The amicus curiae is confident that the Supreme Court 

will so adjudge. Indeed, it must do so if the United States 

is truly one nation under one flag and one Constitution. 

It no longer comports with intellectual integrity to call 

all racial imbalances in the public schools of the South 

de jure, and all racial imbalances in the public schools of 

the North de facto. 

There is now no de jure school segregation anywhere in 

our land. Racial imbalances in public schools are either 

arbitrary or invidious and, hence, constitutionally impermis- 

sible, both North and South, or innocent and, hence, con- 

stitutionally permissible, both North and South. Racial 

imbalances resulting from de facto residential segregation 

or non-discriminatory districting or zoning, whether in the 

North or in the South, are clearly innocent and constitu- 

tionally permissible. 

Moreover, it no longer comports with reality, common 

sense, or justice to apply one rule to the North and another 

to the South because the South did not precede the 

Supreme Court in discovering that the “separate, but equal 

doctrine” had ceased to be the law of the land. 

   



27 

III. 

The Fifth Section of the Fourteenth Amendment 
Empowers Congress to Enforce the Equal Protec- 
tion Clause by Appropriate Legislation, the First 
Section of Article III of the Constitution Em- 
powers Congress to Regulate the Jurisdiction of 

United States District Courts and United States 
Circuit Courts of Appeals, and the Second Section 
of Article III of the Constitution Empowers Con- 

gress to Regulate the Appellate Jurisdiction of the 
Supreme Court. Congress Exercised all of These 
Powers in an Appropriate Fashion When it Enacted 
Title IV of the Civil Rights Act of 1964, Which 
Prohibits the Assignment of Students to Public 
Schools to Balance the Student Bodies in Such 
Schools Racially, and to bus Them From Some 
Schools to Other Schools, or From Some School 

Districts to Other School Districts to Effect Such 
Purpose. The Act’s Prohibition on Busing is Abso- 
lute and Deprives Federal Courts of Jurisdiction to 
Compel School Boards to Bus Students to Over- 

come Racial Imbalances in Schools, Even if Such 

Imbalances Result From Discriminatory School 

Board Action. The District Court Order Vio- 
lated This Act by Commanding the Charlotte- 
Mecklenburg School Board to do the Things Pro- 
hibited by it, and the Circuit Court Joined in Such 
Violation Insofar as it Affirmed the District Court 
Order. 

The Equal Protection Clause is limited in objective and 
operation. It imposes this duty and this duty only on a 
state, i.e., to treat in like manner all persons similarly sit- 
uated. 

In consequence, it forbids a public school board, acting 
as a state agency, to exclude any child from any school 
because of the child’s race. 

Further than that it does not go. It does not rob any 
public school board of its inherent authority to assign child-  



  

28 

ren of any race to their neighborhood school if the school 

board acts for reasons other than racial reasons, such as a 

purpose to promote ease of school administration, conven- 

ience of the children and the homes from which they come, 

or economy of operation. 

Hence, it does not empower federal courts to deny child- 

ren of any race admission to their neighborhood schools and 

to bus them to other schools in other areas to remedy racial 

imbalances in their neighborhood schools or the other 

schools arising out of the residential patterns of their neigh- 

borhoods or of the other areas. 

And, above all things, the Equal Protection Clause does 

not intend that little children, black or white, shall be treated 

as pawns on a bureaucratic or judicial chess board. 

When it enacted Title IV of the Civil Rights Act of 1964 

to enforce the Equal Protection Clause, Congress recognized 

the validity of these observations concerning the meaning 

of the Equal Protection Clause. Moreover, it was not oblivi- 

ous to the inescapable reality that the different races are 

concentrated to substantial degrees in separate residential 

areas throughout the nation, and that it would be virtually 

impossible to keep the public schools of the country racially 

balanced, even if the Equal Protection Clause did not pro- 

hibit such action. 

For these reasons, Congress vested in the Commissioner 

of Education, the Attorney General, and the Federal Courts 

certain responsibilities regarding what it called the desegre- 

gation of public education, but limited the powers of the 

Commissioner of Education and the Attorney General, and 

the jurisdiction of the Federal Courts to keep them within 

constitutional bounds. 

Congress was authorized to do these things by the Fifth 

Section of the Fourteenth Amendment, which expressly em- 

powers Congress to “enforce, by appropriate legislation” the 

Equal Protection Clause; the First Section of Article III of 

the Constitution, which authorizes Congress to prescribe the 

 



20 

jurisdiction of the inferior courts created by it, Chisholm 

v. Georgia, 2 Dall. (U.S.) 419, 432 (1793); Turner v. Bank 

of North America, 4 Dall. (U.S.) 8 (1799); Ex Parte Bollman, 

4 Cranch (U.S.) 75, 93 (1807); Cary v. Curtis, 3 How. (U.S.) 

236, 245 (1845); Sheldon v. Still, 8 How. (U.S.) 441 (1850); 

Kline v. Burke Construction Co., 260 U.S. 226, 234 (1922); 

Lavuf v. EG Skimmer & Co, 303 U.S. 323, 330 (1933): 

Lockerty v. Phillips, 319 U.S. 182 (1943); and Yakus v. 

United States, 321 U.S. 414 (1944); and the Second Section 

of Article III of the Constitution, which vests Congress with 

legal power to regulate the appellate jurisdiction of the Su- 

preme Court, Wiscart v. D’Auchy, 3 Dall. (U.S.) 321, (1796); 

Durousseau v. United States, 6 Cranch 309 (1810); Barry v. 

Mercein, 5 How. (U.S.) 103, 119 (1847); Daniels v. Railroad 

Co., 3 Wall. (US.) 250, 254 (1866); Ex Parte McCardle, 

6 Wall. (U.S.) 318 (1868); The Francis Wright, 105 U.S. 381, 
386 (1882); Kuntz v. Moffitt, 115 U.S. 487, 497 (1885); 

Cross v. Burke, 146 U.S. 82, 86 (1892); Missouri v. Pacific 

Railway Co., 292 U.S. 13, 15 (1934); and Stephan v. United 

States, 319 U.S. 423, 426 (1943). 

The conclusion that Title IV of the Civil Rights Act of 

1964 is designed to enforce the Supreme Court rulings that 

the Equal Protection Clause forbids a school board, acting 

as a state agency, to deny any child admission to any school 

it operates because of the child’s race is vindicated by the 

legislative history of the Act, as well as by its language. 

During the course of the debate on the bill which became 

the Civil Rights Act of 1964, Senator Byrd of West Virginia 

addressed this question to Senator Humphrey, the floor man- 
ager of the bill, and received this reply from Senator Humph- 
rey: : : 

“MR. BYRD, of West Virginia. Can the Senator from 

Minnesota assure the Senator from West Virginia that 

under Title VI school children may not be bused 
from one end of the community to another end of  



  

30 

the community at the taxpayers’ expense to relieve 

so-called racial imbalance in the schools?! 

“MR. HUMPHREY. I do.”? 

Senator Humphrey made these further statements relat- 

ing to the purposes of the bill: 

“MR. HUMPHREY. Mr. President, the Constitution 

declares segregation by law to be unconstitutional, 

but it does not require integration in all situations. 

I believe this point has been made very well in the 

courts, and I understand that other Senators will cite 

the particular cases. 

“T shall quote from the case of Bell against School 

City of Gary, Ind., in which the Federal court of 

appeals cited the following language from a special 

three judge district court in Kansas: ‘Desegregation 

does not mean that there must be intermingling of 

the races in all school districts. It means only that 

they may not be prevented from intermingling or 

going to school together because of race or color.’ 

Brown v. Board of Education, D. C. 139 F. Supp. 

468, 470. 

“In Briggs v. Elliott (EDSC), 132 Supp. 776, 777, 

the Court said: ‘The Constitution, in other words, 

does not require integration. It merely forbids dis- 

crimination.” In other words, an overt act by law 

which demands segregation is unconstitutional. That 

was the ruling of the historic Brown case of 1954.” 

The language of the Act discloses this two-fold Congres- 

sional intent: 

1. To enforce the Supreme Court rulings that the Equal 

Protection Clause prohibits the State from denying to any 

1Genator Byrd was evidently referring to Title IV, instead of Title 

VL 

2 Congressional Record, Volume 110, Part 10, Page 12,714, June 4, 

1964. 

3 Congressional Record, Volume 110, Part 10, Page 13,821, June 15, 

1964. 

   



31 

child admission to any school it operates because of the 

child’s race; and 

2. To keep overzealous bureaucrats and federal judges 

from straying beyond constitutional limits in cases involv- 

ing the desegregation of public schools. 

Since no action of his is involved in this case, the amicus 

curiae pretermits discussion of the provisions of the Civil 

Rights Act of 1964 relating to the Commissioner of Educa- 

tion. 

In phrasing the Act, Congress uses the terms “desegrega- 

tion” and “discrimination” interchangeably to express the 

concept made familiar by the prevalent use of the word 

“discrimination” to mean state action denying persons admis- 

sion to public colleges or public schools because of their 

race. 

This observation is made indisputable by Section 401(b) 
which expressly declares that “desegregation” merely means 

“the assignment of students to public schools and within 

such schools without regard to their race, color, religion, 

or national origin”; Section 407(a)(1) and (2) which refer 

to children who “are being deprived by a school board of 
the equal protection of the laws” and individuals who have 
“been denied admission” to a public college or permission 

“to continue at a public college by reasons of race, color, 

religion, or national origin’; Section 409 which directs its 
attention to ‘“‘discrimination in public education”; and Sec- 
tion 410 which stipulates that “nothing in this title shall 
prohibit classification and assignment for reasons other than 
race, color, religion, or national origin. 

There is not a single syllable in Title IV of the Civil Rights 

Act of 1964 giving any support to a different interpretation. 

Section 401(b) merits further consideration because it 

specifies not only what Congress means by the term ‘“deseg- 

regation”, but also what Congress does not mean by that 

term.  



  

32 

Section 401(b) consists of two clauses. The first clause 

provides that ‘‘desegregation” as used in Title IV “means 

the assignment of students to public schools and within such 

schools without regard to their race, color, religion, or na- 

tional origin,” and the second clause provides that ‘“desegre- 

gation” as used in Title IV ‘shall not mean the assignment 

of students to public schools in order to overcome racial 

imbalance.” 

As a law made by Congress, Title IV is binding on fed- 

eral judges, and defines their jurisdiction in respect to public 

schools operated by public school boards acting as state agen- 

cies. 

The first clause of Section 401(b) commands school boards 

to ignore race, color, religion, and national origin as factors 

in assigning students to public schools. Since federal judges 

have no power to add anything to the laws they enforce, 

this clause merely confers upon federal judges the limited 

jurisdiction to enforce its command by decrees which prevent 

recalcitrant school boards from denying otherwise eligible 

children admission to schools on account of their race, color, 

religion, or national origin. 

Since federal judges do not have power to subtract any- 

thing from laws they enforce, the second clause of Section 

401(b) denies to federal judges jurisdiction to compel school 

boards to assign ‘‘students to public schools in order to over- 

come racial imbalance.” By this clause, Congress forbids 

federal judges to make decrees compelling school boards to 

take affirmative steps to commingle black and white children 

in public schools in proportions satisfactory to themselves 

to remedy racial imbalances occasioned by de facto residen- 

tial segregation or non-discriminatory action on the part of 

school boards. 

This interpretation of Section 401(b) is completely con- 

firmed by Section 407, 409, and 410 of Title IV. 

Before the enactment of Title IV of the Civil Rights Act 

of 1964, only the individuals aggrieved thereby had legal 

   



33 

standing to make complaint in federal courts concerning 

state-imposed segregation in public education. They were 

restricted to seeking relief for themselves and their children 

and other persons similarly situated. They did not have the 

right to demand that federal courts should substitute fed- 

erally coerced integration for state-imposed segregation. 

When it drafted Title IV, Congress decided to extend to 

the Attorney General standing to sue for “such relief as may 

be appropriate” in behalf of two groups of people if he be- 

lieves their complaints to be ‘“‘meritorious’ and concludes 

that they are ‘“‘unable *** to initiate and maintain appro- 

priate legal proceedings for’ their own “relief.” These groups 

of people are described, in essence, as children who ‘‘are 

being deprived by a school board of the equal protection 

of the laws” and individuals who have been ‘denied admis- 

sion’ to a public college or “permission to continue in at- 

tendance at a public college by reason of race, color, religion 

or national origin.” To this end, Congress inserted Section 

Section 407(a) in Title IV. 

At the same time, however, Congress decided to preserve 

intact the existing rights of individuals to sue in their own 

behalf for relief against state-imposed segregation. To ac- 

complish this purpose, Congress stipulated in Section 409 

that nothing in Title IV “shall affect adversely the right of 

any person to sue for or obtain relief in any court against 

discrimination in public education.” 

Congress was determined, however, not to increase the 

powers of federal judges when it gave the Attorney General 

standing to seek relief against discrimination in public edu- 

cation in behalf of the aggrieved persons designated in Sec- 

tion 409(a). Moreover, Congress was equally as determined 

that federal judges should not have jurisdiction to compel 

school boards to deny children admission to their neighbor- 

hood schools and transport them hither and yon to achieve 

racial balances in public schools, regardless of whether the 

racial imbalances sought to be removed to accomplish such 

purpose arise out of innocent causes or discriminatory action 

on the part of school boards.  



  

34 

Congress made these purposes manifest by inserting in 

Section 409(a) language expressly providing “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 pupils or 

students from one school to another or one school district 

to another in order to achieve such racial balance, or other- 

wise enlarge the existing power of the court to insure com- 

pliance with constitutional standards.” 

By so doing, Congress deprived all federal courts of the 

jurisdiction to order public school boards to bus children 

from one school to another or from one school district to 

another to remedy racial imbalances in public schools regard- 

less of whether such imbalances arise out of innocent causes 

or discriminatory school board action. As appears from the 

cases which the amicus curiae has previously cited, Congress 

had undoubted power to do this under the First Section of 

Article III of the Constitution, which empowers it to define 

the jurisdiction of inferior federal courts, and under the Sec- 

ond Section of Article III of the Constitution, which ex- 

pressly provides that ‘‘the Supreme Court shall have ap- 

pellate jurisdiction, both as to law and fact, with such 

exceptions, and under such regulations as the Congress shall 

make.” 

It necessarily follows that the District Court violated the 

provisions of the Civil Rights Act of 1964 when it ordered 

the Charlotte-Mecklenburg School Board to bus thousands 

of children from some schools to other schools and from 

some school districts to other school districts to overcome 

racial imbalances in any of its schools regardless of the ori- 

gin of such racial imbalances; and that the Circuit Court 

erred in affirming the provisions of the District Court order 

relating to the transportation of senior high school and jun- 

ior high school students. 

While such statutes apply to the Executive Department of 

the Federal Government only, and for that reason are not 

controlling in this case, it seems not amiss to direct the atten- 

   



35 

tion of the Supreme Court to congressional hostility to the 

busing of children to achieve racial balancing in public 

schools. Congress manifested its hostility to such action by 

the Elementary and Secondary Education Act of 1965, as 

amended in 1966, which forbids “any department, agency, 

officer, or employee of the United States * * * to require 

the assignment or transportation of students or teachers in 

order to overcome racial imbalance,” (P.L. 89-10, Title VIII, 

Section 804; 20 U.S.C. Section 884); the Department of 

Labor, and Health, Education, and Welfare Appropriation 

Act of 1969, which provides that “no part of the funds 

contained in this Act shall be used to force busing of stu- 

dents * * * in order to overcome racial imbalance as a con- 
dition precedent to obtaining Federal funds otherwise avail- 

able to any State, school district, or school”, (P.L. 90-557, 

Title IV, Section 410); and the Office of Education Appro- 

priation Act of 1971, which provides that “no part of the 

funds contained in this Act shall be used to force any school 

or school district which is desegregated as that term is de- 
fined in Title IV of the Civil Rights Act of 1964, Public Law 
88-352, to take any action to force the busing of students” 

(P.L. 91-380, Title lI, Section 210). 

 



  

36 

IV. 

A School Board has the Power to Devise and Im- 
plement any Non-discriminatory Plan for the As- 
sighment of Children to the Public Schools it 
Operates. The District Court not Only Rejected 
a Non-discriminatory Assignment Plan Submitted 

by the Charlotte-Mecklenburg School Board, but 
it Usurped and Exercised the Authority of the 
School Board in this Respect by Devising a Plan 
of its Own Which Commands the School Board to 
Deny Thousands of Children Admission to Their 
Neighborhood Schools, and to bus Them to Other 

Schools to Mix the Races in the Various Schools 
in Numbers or Proportions Satisfactory to the 
District Court. By so Doing, the District Court 

Ordered the School Board to Deny to the Thou- 
sands of Children Affected by its Order Admission 

to Their Neighborhood Schools in Violation of the 
Equal Protection Clause, and to Bus Them to 
Other Schools or Other School Districts in Viola- 
tion of Section 407(a)(2) of the Civil Rights Act 

of 1964. The Circuit Court Concurred in These 
Violations, and Erred Insofar as it Affirmed the 
Order of the District Court. 

A school board, acting as a state agency, has the power 

to assign children to the public schools it operates free from 

interference by the Federal Judiciary as long as it obeys the 

Equal Protection Clause and does not exclude any child from 

any school because of the child’s race. 

When a school board violates the Equal Protection Clause, 

a Federal Court has jurisdiction to order the school board 

to devise and implement a plan sufficient to remedy its dis- 

criminatory assignment of children to its schools, and to 

punish the members of the school board for contempt of 

court if they fail to obey the order. Nevertheless, the power 

to devise and implement a plan to remedy the discriminatory 

assignment continues to reside in the school board, and the 

Federal Court is without power to reject a non-discriminatory 

 



37 

plan submitted by the school board because such non- 

discriminatory plan will not mix the races in the schools in 

numbers or proportions satisfactory to the Federal Court. 

Besides the Federal Court cannot usurp and exercise the 

power of the School Board to devise a non-discriminatory 

assignment plan because the Federal Court wishes to mix 

the races in the schools in greater numbers or proportions 

than the non-discriminatory plan of the School Board en- 

visages. 

The District Court violated all of these principles when it 

made its order of February 5, 1970 (819a-839a), its supple- 

mental findings of fact of March 21, 1970 (1198a-1220a), 

and its supplemental memorandum of March 21, 1970 

(1221a-1238a). 

Pursuant to the order which the District Court had en- 

tered on December 1, 1969, the Charlotte-Mecklenburg 

School Board submitted to the District Court on February 2, 

1970 its plan for desegregation of schools (726a-742a). By 

this plan the School Board undertook to restructure its geo- 

graphical attendance districts or zones in such a manner as 

to promote the highest degree of racial integration obtaina- 

ble by geographical districting or zoning, and to assign all 

school children, black or white, to the neighborhood schools 

in the district or zone of their residence, regardless of race. 

The plan undertook to further augment desegregation by a 

transfer system heavily weighted in favor of permitting black 

children to transfer from predominantly black schools to 

predominately white schools. 

Inasmuch as it treated all children similarly situated ex- 

actly alike and did not exclude any child from any school 

on account of the child’s race, the plan submitted by the 

School Board on February 2, 1970, was in complete har- 

mony with the Equal Protection Clause and it was obligatory 

for this reason for the District Court to approve it and permit 

the School Board to implement it.  



  

38 

Instead of doing so, the District Court rejected the non- 

discriminatory plan submitted by the School Board, and 

usurped and exercised the power vested in the School Board 

by adopting a plan of its own. The District Court accom- 

plished this purpose by engrafting upon the plans of the 

School Board drastic alterations and revisions recommended 

by Dr. Finger, which commanded the School Board to deny 

thousands of children admission to their neighborhood 

schools, and to bus them long distances from some schools 

to other schools, and from some school districts or zones 

to other school districts or zones. 

When all is said, the District Court commanded the School 

Board to take this action to remedy racial imbalances in 

black schools in northwest Charlotte arising out of de facto 

residential segregation in that area, and to produce racial 

commingling in these schools of northwest Charlotte and 

other schools in other areas in numbers or proportions 

greater than those envisaged by the plan of the School 

Board. 

The District Court virtually confesses that its order was 

designed to effect these purposes by this recital which ap- 

pears in its supplemental findings of fact of March 21, 1970: 

“Both Dr. Finger and the school board staff ap- 

pear to have agreed, and the court finds as a fact, 

that for the present at least, there is no way to de- 

segregate the all-black schools in Northwest Charlotte 

without providing (or continuing to provide) bus or 

other transportation for thousands of children. All 

plans and all variations of plans considered for this 

purpose lead in one fashion or another to that con- 

clusion.” (1208a) 

In addition to usurping and exercising power vested by 

law in the School Board, the District Court order commands 

the School Board to violate rights vested in thousands of 

school children by the Equal Protection Clause and the Civil 

Rights Act of 1964. 

   



30 

Since the power to assign children to public schools 

belongs to the school board administering such schools, no 

child has the constitutional or legal right in the first instance 

to attend any particular school, but when a school board 

adopts a non-discriminatory system for assigning children to 

neighborhood schools in the attendance district or zone of 

their residence, children acquire, as against every govern- 

mental agency except the school board, the legal right to 

attend the schools to which they have been so assigned. 

This right is additional to their right not to be excluded from 

such schools because of their race. 

By its previous practices and its plan of February 2, 1970, 

the School Board had assigned thousands of senior high 

school, junior high school, and elementary school children 

to their neighborhood schools in a wholly non-discriminatory 

fashion. 

By its order of February 5, 1970, the District Court com- 

manded the School Board to do two things which clearly 

offend the Equal Protection Clause. In the first place, the 

District Court commanded the School Board to treat differ- 

ently children similarly situated by allowing thousands of 

children to attend their neighborhood schools, and by ex- 

cluding thousands of other children from admission to their 

neighborhood schools; and in the second place, the District 

Court commanded the School Board to bus the thousands 

of children excluded from their neighborhood schools to 

some other schools in other districts or zones to desegregate 

both their neighborhood schools and the other schools in 

numbers or proportions satisfactory to the District Court. 

No amount of sophistry can erase the plain truth that 

the second group of children were denied admission to their 

neighborhood schools on account of their race. 

Manifestly, the Equal Protection Clause does not confer 

upon any Federal Court jurisdiction to enter a wondrous 

order to compel a school board to obey the Equal Protec- 

tion Clause by violating it. Congress apparently realized 

this bizarre result of busing children from one school to  



  

40 

another, or from one school district or zone to another dis- 
trict or zone, when it prohibited any officer or Court of the 

United States to require such action to achieve the racial 

balancing of schools. 

The Circuit Court erred in affirming the order of the Dis- 

trict Court rejecting the plan submitted by the School Board, 

and in affirming, in part, the order of the District Court 

excluding children from their neighborhood schools and re- 

quiring them to be bused to other schools and other school 

districts in other areas. 

CONCLUSION 

For the reasons stated, the Court should reverse the pro- 

visions of the judgment of the Circuit Court insofar as they 

relate to the assignment and busing of senior high school 

and junior high school students; approve the provisions of 

the judgment of the Circuit Court insofar as they vacate 

the order of the District Court relating to the assignment 

and busing of elementary school children; and grant the mo- 

tion of the School Board to stay the order of the District 

Court reinstating its previous orders relating to the assign- 

ment and busing of elementary school students. 

Respectfully submitted, 

Sam'J. Ervin, J1. 

515 Lenoir Strect 

Morganton, North Carolina 

Charles R. Jonas 

301 W. Main Street 

Linconton, North Carolina 

Ernest F. Hollings 

141 East Bay Street 

Charleston, South Carolina 

   



Al 

APPENDIX 

Constitutional Provisions Involved 

1. The First Section of the Fourteenth Amendment, which 

reads, in pertinent part, as follows: ‘nor (shall any 

State) deny to any person within its jurisdiction the 

equal protection of the laws.” 

2. The Fifth Section of the Fourteenth Amendment, which 

specifies that “The Congress shall have power to en- 

force, by appropriate legislation, the provisions of this 

Article.” 

3. The First Section of Article III, which states, in perti- 

nent part, that “The judicial Power of the United States, 

shall be vested in one supreme Court, and in such in- 

ferior Courts as the Congress may from time to time 

ordain and establish.” 

4. The Second Section of Article III of the Constitution, 

which reads, in pertinent part, as follows: 

“The judicial Power shall extend to all Cases, in 

Law and Equity, arising under this Constitution, the 

Laws of the United States, and Treaties made, or 
which shall be made, under their Authority; - to all 

Cases affecting Ambassadors, other public Ministers 

and Consuls; - to all Cases of Admiralty and mari- 

time Jurisdiction; - to Controversies to which the 
United States shall be a Party; - to Controversies 
between two or more States; - between a State and 

Citizens of another State; - between Citizens of dif- 

ferent States; - between Citizens of the same State 

claiming Lands under Grants of different States, and 

between a State, or the Citizens thereof, and foreign 

States, Citizens or Subjects. 

“In all Cases affecting Ambassadors, other public 

Ministers and Consuls, and those in which a State 
shall be Party, the supreme Court shall have original 

Jurisdiction. In all the other Cases before mentioned, 
the supreme Court shall have appellate Jurisdiction,  



  

A 2D 

both as to Law and Fact, with such Exceptions, and 
under such Regulations as the Congress shall make.” 

Statutory Provisions Involved 

1. Title IV of the Civil Rights Act of 1964 which ori- 

ginally appeared in Title IV of Public Law 88-352 of 

the 88th Congress and is now codified as 42 USC 

2000c - 2000c-9. This statute reads as follows: 

“Title VI - Desegregation of Public 
Education Definitions 

“Sec. 401. As used in this title - 

“(a) ‘Commissioner’ means the Commissioner of 

Education. 

“(b) ‘Desegregation’ means the assignment of stu- 
dents to public schools and within such schools with- 

out regard to their race, color, religion, or national 
origin, but ‘desegregation’ shall not mean the assign- 

ment of students to public schools in order to over- 

come racial imbalance. 

“(c) ‘Public school’ means any elementary or sec- 

ondary educational institution, and ‘public college’ 
means any institution of higher education or any 

technical or vocational school above the secondary 
school level, provided that such public school or 
public college is operated by a State, subdivision of 
a State, or governmental agency within a State, or 
operated wholly or predominantly from or through 
the use of governmental funds or property, or funds 
or property derived from a governmental source. 

“(d) ‘School board’ means any agency Or agen- 

cies which administer a system of one or more public 
schools and any other agency which is responsible 

for the assignment of students to or within such sys- 

tem. 

   



A 3 

Survey and Report of Educational 
Opportunities 

“Sec. 402. The Commissioner shall conduct a sur- 
vey and make a report to the President and the Con- 

gress, within two years of the enactment of this title, 
concerning the lack of availability of equal educa- 

tional opportunities for individuals by reason of race, 

color, religion, or national origin in public educational 

institutions at all levels in the United States, its ter- 

ritories and possessions, and the District of Columbia. 

Technical Assistance 

“Sec. 403. The Commissioner is authorized, upon 
the application of any school board, State, munici- 

pality, school district, or other governmental unit 
legally responsible for operating a public school or 

schools, to render technical assistance to such appli- 
cant in the preparation, adoption, and implementa- 
tion of plans for the desegregation of public schools. 

Such technical assistance may, among other activi- 

ties, include making available to such agencies infor- 
mation regarding effective methods of coping with 

special educational problems occasioned by desegre- 

gation, and making available to such agencies person- 
nel of the Office of Education or other persons spe- 
cially equipped to advise and assist them in coping 
with such problems. 

Training Institutes 

“Sec. 404. The Commissioner is authorized to 
arrange, through grants or contracts, with institu- 
tions of higher education for the operation of short- 
term or regular session institutes for special training 
designed to improve the ability of teachers, supervi- 
sors, counselors, and other elementary or secondary 
school personnel to deal effectively with special edu- 
cational problems occasioned by desegregation. In- 
dividuals who attend such an institute on a full-time 
basis may be paid stipends for the period of their  



  

A 4 

attendance at such institute in amounts specified by 
the Commissioner in regulations, including allow- 

ances for travel to attend such institute. 

Grants 

“Sec. 405. (a) The Commissioner is authorized, 
upon application of a school board, to make grants 

to such board to pay, in whole or in part, the cost 

of - 

“(1) giving to teachers and other school per- 
sonnel in-service training in dealing with problems 
incident to desegregation, and 

“(2) employing specialists to advise in prob- 
lems incident to desegregation. 

“(b) In determining whether to make a grant, 

and in fixing the amount thereof and the terms and 

conditions on which it will be made, the Commis- 

sioner shall take into consideration the amount avail- 
able for grants under this section and the other ap- 

plications which are pending before him, the financial 

condition of the applicant and the other resources 
available to it; the nature, extent, and gravity of its 

problems incident to desegregation; and such other 

factors as he finds relevant. 

Payments 

“Sec. 406. Payments pursuant to a grant or con- 
tract under this title may be made (after necessary 
adjustments on account of previously made overpay- 
ments or underpayments) in advance or by way of 
reimbursement, and in such installments, as the Com- 

missioner may determine. 

   



A.5 

Suits by the Attorney General 

“Sec. 407. (a) Whenever the Attorney General re- 
ceives a complaint in writing - 

“(1) signed by a parent or group of parents to 
the effect that his or their minor children, as mem- 
bers of a class of persons similarly situated, are 
being deprived by a school board of the equal pro- 
tection of the laws, or 

“(2) signed by an individual, or his parent, to 
the effect that he has been denied admission to 
‘or not permitted to continue in attendance at a 
public college by reason of race, color, religion, 
or national origin, and the Attorney General be- 
lieves the complaint is meritorious and certifies 
that the signer or signers of such complaint are 
unable, in his judgment, to initiate and maintain 
appropriate legal proceedings for relief and that 
the institution of an action will materially further 
the orderly achievement of desegregation in pub- 
lic education, the Attorney General is authorized, 
after giving notice of such complaint to the ap- 
propriate school board or college authority and 
after certifying that he is satisfied that such board 
or authority has had a reasonable time to adjust 
the conditions alleged in such complaint, to in- 
stitute for or in the name of the United States a 
civil action in any appropriate district court of the 
United States against such parties and for such re- 
lief as may be appropriate, and such court shall 
have and shall exercise jurisdiction of proceedings 
instituted pursuant to this section, 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 requir- 
ing the transportation of pupils or students from 
one school to another or one school district to 
another in order to achieve such racial balance, 
or otherwise enlarge the existing power of the 
court to insure compliance with constitutional 
standards. The Attorney General may implead as 
defendants such additional parties as are or be- 
come necessary to the grant of effective relief 
hereunder.  



  

A. 6 

“(b) The Attorney General may deem a person 
or persons unable to initiate and maintain appropriate 

legal proceedings within the meaning of subsection 

(a) of this section when such person or persons are 
unable, either directly or through other interested 

persons or organizations, to bear the expense of the 

litigation or to obtain effective legal representation; 
or whenever he is satisfied that the institution of such 

litigation would jeopardize the personal safety, em- 
ployment, or economic standing of such person or 
persons, their families, or their property. 

“(c) The term ‘parent’, as used in this section in- 
cludes any person standing in loco parentis. A ‘com- 

plaint’ as used in this section is a writing or document 
within the meaning of section 1001, title 18, United 
States Code. 

“Sec. 408. In any action or proceeding under 
this title the United States shall be liable for costs 
the same as a private person. 

“Sec. 409. Nothing in this title shall affect ad- 

versely the right of any person to sue for or obtain 
relief in any court against discrimination in public 
education. 

“Sec. 410. Nothing in this title shall prohibit clas- 

sification and assignment for reasons other than race, 
color, religion, or national origin. [||9f252cf3-b30d-49b4-b8d2-094a78687c94||]