Plaintiffs' Further Response to Defendants' Motion for Extension and Motion for Further Relief

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JAMES E. SWANN, et al., 

..corporate,. et al., . 

INTHE 

. UNITED STATES DISTRICT COURT . 

FOR THE . 

WESTERN DISTRICT OF NORTH CAROLINA 

CHARLOTTE DIVISION . 

  

Plaintiffs, 

5 1 SN CIVIL ACTION . 

CHARLOTTE-MECKLENBURG BOARD NO. 1974 . 

OF EDUCATION, a public body 

Defendants. 

  

PLAINTIFFS' FURTHER RESPONSE TO 

" DEFENDANTS' MOTION FOR EXTENSION . 

© AND MOTION FOR FURTHER RELIEF ‘© - 
  

On October 2, 1969,. defendants moved the Court for an 

extension of time for filing a plan of desegregation from the 

November 17, 1969 date previously set by the Court until 

February 1, 1970. - Plaintiffs filed objections to the Motion on 

. October 8, 1969... On October 10, 1969,. the Court submitted 

several interrogatories to the Board for information to be 

considered by the Court prior to ruling on the defendants" 

Motion. Defendants have now filed answers to the Court's. 

  

  

- of Education, . U. S._ (No. 632) which directed that every school        



  

  

  

  
  

      

district "terminate dual school systems at once and...operate 

  

now and hereafter only unitary schools." (Emphasis added.) 

(A copy of the decision is attached hereto as Exhibit A.) 

District Courts were permitted to hear objections or proposed 

amendments to. desegregation plans but only after school districts 

have effectively completely desegregated. 

Defendants’ answers to the Court's inquiries, together with | 

  

that the Court direct institution of a plan of desegregation 

which will ‘immediately and effectively accomplish ‘a unitary 

school system. 

1. The Court concluded in its order of April 23, 1969 

that "the law has moved from an attitude barring discrimination 

to an attitude requiring active desegregation;" "that [t]he 

manner. in which ‘the Board has located schools and operated the . 

pupil assignment system has continued and in some situations 

accentuated patterns of racial segregation in housing, school 

attendance and community development," that the "majority of the . 

black students, however, still attend segregated schools and 

seldom, if ever, see a white fellow student. Many all-black and 

all-white schools still remain. . The neighborhood school concept : | 

and freedom of choice as administered are not furthering 

desegregation." . The Court directed that the Board submit a plan 

for desegregation "to be predominantly effective in the fall of 

1969 and to be completed by the fall of 1970." 

 2.. The Board submitted a plan, pursuant to the Court's. 

. directive, on May 28, 1969. . As found by the Court. in:its order 

of June 20, 1969, the plan was basically the ‘same as ‘that re- 

jected in the April: 23rd order. . The Court rejected the plan 

and ordered that the defendants submit a new plan. : The Court : 

- found that the Board's freedom of choice provision increased 

rather than decreased segregation and that 

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| . the Court finds as a fact that no 

. zones ‘have apparently been created 

| or maintained for the purpose of 

| promoting desegregation; that the 

| whole plan of "building schools ° 

| where the pupils are" without further . 

| control promotes segregation; and 

| . that certain schools, for example 

| ' Billingsville, Second Ward, Bruns 

Avenue and Amay James, obviously 

serve school zones which were either 

| created or which have been controlled 

| ~. 80 as to surround pockets of black 

i students and that the result of these . 

actions is discriminatory. . These are 

not named as an exclusive list of such 

| situations, but as illustrations of a 
; long standing policy of control over. the . 

| makeup of school population which scarcely 

fits any true "neighborhood school™ 

| philosophy. Frye Sl 

  
| 3. ‘on July 29, 1969, the Board submitted a new plan which . | 

proposed an affirmative policy of desegregation, increased 

. desegregation of teachers and the closing of 7 ‘inner-city black . 

schools. = The Board advised the Court that 3000 black students   would be affected by the closing of the black schools and would   
be assigned to previously all-white or predominantly white . 

schools. Additionally, the Board proposed to reassign 1245 ° 

  
black students to all-white schools or predominantly which . 

schools from overcrowded black schools. . Thus,’ 4245 black 

students would be reassigned to further desegregate the school   
system.’ The Board retained, however ,. freedom of choice for   these students and proposed no assignment of white students 

. to predominantly or all black schools. | By order dated August 15, . 

1969, the court reluctantly approved the amended plan finding 

! the affirmative policy statements of the Board, the steps toward 

  

     



  

  

    

  

  

  

. desegregation of staffs, the reassignment of the 4245 black 

- desegregation of the school system. . The Court made clear, 

. however, that it would no longer tolerate one-way (Negro to 

students, the Board's proposal to reevaluate its building 

program and attendance lines and the proposed compensatory 

educational program to constitute substantial steps toward 

white). desegregation and directed that the Board present on or   
before November 17, 1969 a plan for complete desegregation. 

4. e0n August 31, 1969, plaintiffs moved the Court for 

further relief alleging that the defendants had failed to im=- 

plement even the minimal steps promised or directed in the . 

Court's order of August 15, 1969... The information filed by the . 

Board pursuant to the Court's inquiries substantiates plaintiffs' 

allegations: 

a. . Of the 3000 students from the closed 

all-black schools 1242 are assigned 

to predominantly white schools; 844: 

remain in all-black schools; 914 ‘are . 

unaccounted for. fo 

_b. . Of the 1245 black students in over- 

crowded classes only 73 have now been 

reassigned to predominantly white 
schools. 

(The Board states that it is concerned 

about the responses of the black . 

students and parents ‘and it should be, 

for it has promised the Court that an 

additional 4245 black students would 

be assigned to integrated schools for 

this ‘school year when neither the plan 

nor its subsequent administration by 

the Board was designed to accomplish . 

this objective. = And the facts now . 

supplied the Court clearly demonstrate . 

that what was promised and anticipated 

simply has not been accomplished.) 

 c. . The freedom of choice chart supplied by 

the Board does not reflect the number 

of students, white and black, who have: 

opted out of schools in which their race . 

is in the minority to schools ‘in which . 

their race is ‘in the majority. Plaintiffs 

are advised that these students are . 

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automatically reassigned to schools 
. chosen the following year and are not : 

- reflected in the statistics having 
freedom of choice results for this 
school year. Moreover, and contrary 

. to the Board's. assertion, the statistics 
| supplied clearly show that freedom of 

. choice is not further desegregating the . 
system but perpetuating segregation. Of 
the 4500 black students who were to be | 
in predominantly white schools this 

year, approximately 2000 have elected, 
. under freedom of choice to. attend all=- 
. black schools. © And, as examples, 
Barringer, 20% black,. lost 10 whites; 

' Billingsville,: 100% black, lost 2 whites; 
. Bruns Avenue,’ 99% black,. lost 2 whites; 
Elizabeth, 91% black, lost '18 whites; 

. Amay James, 99% black, lost 25 whites; 
| - Piedmont 89% black, lost 27 whites; West : 

Charlotte, the only black senior high . 
school, lost 3 whites. 

  
(The Board has not shown, and 

plaintiffs submit, cannot show, any 
| . constitutionally permissible basis for 

. continuing freedom of choice. Its de=- 
. sign and purpose here was clearly to 
serve as safety value to permit students 

. to escape integrated schools. Its" 
purpose has been served and its con- 

. tinued use should be enjoined now. : Green. 
vv. School Board of New Kent County, 391. 

  

    
  

‘State Board of Education, . F. Supp. , . 

Ts el, vp. 7235 W. D.K.. Cu) 
March. 31, 1966). | 

  

. desegregate ‘teachers and school personnel 

much more is required to eliminate the . 

- racial ‘identities of staff and school ° 
personnel at the various schools. 
Exhibit "D",. attached to the Board's 

answers, reveals several schools with 1, 

| 3 'and 4 ‘teachers of the opposite race. 

More important, however, is ‘the continued 

reluctance of the Board to assign black 
- personnel to special duties, coachers, 

guidance personnel, etc.. : 

_ e. | The Board has failed to provide the 

. compensatory educational program out- 

lined in its ‘amended plan and commended 

by the Court. We are now told that the . 

' Board intends to make a request for the . 

- funds to institute what the Board 

promised would be ongoing at ithe Dgue s.r 

i ginning of the school year. Despite the . 

"one-way desegregation, many Negro 
students have accepted reassignment to 

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d. While the Board has taken some steps to 

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integrated schools. Many had 
anticipated that the promised pro- 
grams would be fully implemented to 
aid their OS and adjustment. 

: Once again, however, they are ‘told 
sometime ‘in the future. 

£. Most telling ‘of. the Board's. statistic 
. that the Board's practices and policies - 
are perpetuating segregation is 
Exhibit "D". Thus, for example, Billings- 

i ville, adjacent to 5 white schools, had 
no white students ‘in 1965, 2 in 1968 and 

| none for 1969; Hidden Valley, adjacent 
3 EO predominantly black Tryon Hill, has no 
. black students; Barringer had no black | 
students in 1965 ‘and now is 98% black; 
Elizabeth, Lakeview, Tryon Hills, Haw- 

. thorne and Piedmont have had similar 
- results. 

g. Eleven schools in this system today re- 
; "main all-black, 8 remain all-white; 10 

- black schools have less than 10 per cent 
B white students; 36 white schools have . 

| : 10%8%0or less black students, eight 
. thousand one hundred and sixty black 
students attend school with no integration; 

' 6605 white students have no hlack students 
at their schools; 26,688 white students 

| and 3432 black students attend schools 

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with less than ten percent of the students 
of the opposit race..   

Now with respect to the Board's request for delay. 

Plaintiffs have previously moved the Court that the Court 

| appoint its own educational consultant to devise a plan for 

. complete desegregation of the school system for Board action 

  and the responses now given the Court make clear that the . 

- Board will not carry out its constitutional duties as directed. 

. The Board contends that it has commissioned Mr. 3. W. Weil - 

. to devise new attendance areas which will affect all schools 

and that it will take 3 months to redraw the attendance areas ' | 

as planned. Redrawing the attendance lines, however, will not: 

. desegregate all ‘schools -- "Dramatic results are expected. 

It is hoped that the number of all white and all black schools   will be substantially reduced. : The number of such schools       cannot be determined at this time." (Answer to question 7 ‘of 

the Court, p.7 of the Board's Report): And despite the failure . | 

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of the Weil plan to completely desegregate, the Board will 

. consider other methods only "where practical, educationally 
  

feasible and where such techniques offer reasonable prospects ° 
  

| of producing stable desegregation (Emphasis added.) in such . 

affected schools." (Answer to question 6 of the Court, p.7 

of Board's Report) "The Board does not feel that it will 

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| be possible to produce pupil desegregation in each school by 

| September 1970....[T]he restructuring of attendance lines 

| coupled with faculty desegregation may satisfy constitutional 

ji requirements." (Emphasis added.) (Answer to question 8 of the 

Court, p.8 of Board's Report) = The Board clearly promises 

  . to do no more than what it wants to do and when it wants to 

notwithstanding the Court's directive and constitutional 

requirements. Plaintiffs submit that the Board's Report : 

plementing its alleged policy statements on desegregating the 

school system. Even without Alexander, the Report requires that]. 
  

. the motion be denied and that the Court take other steps to   
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| patently demonstrate that the Board has no intention of im- 
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| insure desegregation "at once." = With Alexander, plaintiffs 
  

- respectfully submit that the motion should be denied and that ° 

. the Court should proceed forthwith to devise and institute a 

plan which will immediately and effectively establish a 

unitary, non-racial school system "now and hereafter". 

WHEREFORE, plaintiffs renew their objections to defendants’ 

motion for extension of time and again move the Court for 

apointment of educational consultants to devise a plan for 

opiate desegregation to be instituted forthwith. Plaintiffs - 

further move that the Court now specifically enjoin any further 

construction or additions pending the adoption and implemen-   tation of a Court approved plan of desegregation. Plaintiffs 

further renew their prayers for relief and for show cause filed 

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| ® tH 

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|. August 31, 1969 and in their Response £iled Ocitber 8, 1969. 

| Respectfully submitted, 

  

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| CONRAD 5. “PEARSON 

| 203 '1/2 ‘East Chapel Hill Street 
Durham, North Carolina 

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CHAMBERS, STEIN, FERGUSON and LANNING . 

216 West Tenth Street 

Charlotte, North Carolina 

JACK GREENBERG. 

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| JAMES M. NABRIT, III . 

| NORMAN CHACHKIN 

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10 'Columbus Circle . 
New York, New York 

ATTORNEYS FOR PLAINTIFFS 

  

' CERTIFICATE OF SERVICE : 

. The undersigned hereby. certifies that copies of the fore- 

going Further Response and Motion were served upon defendants - 

. by depositing copies of same in the United States mail, postage 

prepaid and addressed to: 

Mr. William J. Waggoner 
Weinstein, Waggoner, Sturgis: & ‘Odom 

11100 Barringer Office Tower 
. Charlotte, North Carolina 

Mr.. Brock Barkley 
Law Building . 

- Charlotte, North Carolina 
  

Mr. Gaston Gage . 
Law Building 
Charlotte, North Carolina 

Honorable Robert Morgan 
Attorney General 
State of North Carolina 
‘Raleigh, North Carolina 

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I Mr. Andrew Vanore, Jr. 

| taff Attorney 

I . Office of ‘the Attorney General 

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State of North Carolina 

| Raleigh, North Carolina 

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This 2): day of October, 1969. 

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| 3 Sh CFs: a! 
  

Att torney For Pale         
 



  

EXHIBIT A 

UNITED STATES SUPREME COURT 

OCTOBER TERM 1969 

NO. 632 

ALEXANDER v. HOLMES COUNTY 

BOARD OF EDUCATION OCTOBER 29, 1969 

These cases come to the Court on a petition for certiorari 
to the Court of Appeals for the Fifth Circuit. The petition was 

granted on October 9, 1969 and the case set down for early argument. 

The question presented is one of paramount importance involving as 
it does the denial of ™ndamental rights to many thousands of school 

¢hil“xen who are presently attending Mississippi schopls under 

segregated conditions contrary to the applicable decisions of this 

Court. Against this background, the Court of Appeals should have 
denied all motions for additional time because continued operation 

of segregated schools under a standard of allowing all deliberate 

spced for desegregation is no longer constitutionally permissible. 

Under explicit holdings of this Court, the obligation of every 

scheol district is to terminate dual school systems at once and to 

oparate now and hereafter only unitary schools. Griffin v. Schocl 

Board, 377 U.S. 218, 234 (1964); Green v. School Board of New 

Kent County, 391 U.S. 430, 438, 439, 442 (1968).7 Accordingly, it 

is hereby adjudged, ordered and decreed: 

  

  

  

1. The Court of Appeals' order of August 28, 1969 is 
vacated and the cases are remanded to that Court to issue its 

decree and order nffective immediately, declaring that each of the 

sthool districts here involved may no longer operate a dual school 

system based on race or color and directing that they begin imme- 

di.lely to operate as unitary school systems within which no parson 

is to be effectively excluded because of race or color. : 

2. The Court of Appeals may in its discretion direct the 
schiools here involved to accept all or any part of the August 11, 

1859 recommendations of HEW, with any modifications which that 

Court deems proper in so far as its recommendations insure a totally 

unitary school system for all eligible pupils without regard to 
race or color. The Court of Appeals may make its determination and 

enter its order without further arguments or submission. 

3. While each of these school systems is being operated 
as a unitary school system under the order of the Court of Appeals, 

trie Distrcect Court may hear and consider objections thereto or 

propcsed amendments thereof provided, however, that the Court of 

Appeals order shall be complied with in all respects while the 

District Court considers such objections or amendments if any are 

made, No amendments shall become effective before being passed 

upon by the Court of Appeals. 3 

4. The Court of Appeals shall retain jurisdiction to 
insure prompt and faithful compliance with its order and may modify 

or amend the same as may be determined necessary or desirable for 

the operation of a unitary school system. \ 
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5. The order of the Court of Appeals dated August 28, 
oe having been vacated and the case remanded for proceeding in 

onformity with this order, the judgment shall issue forthwith and 

son Court of Appeals is requested to give priority to the execution 

of this judgment as far as possible and necessary. 3 
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