Winston Salem Board of Education v Scott Brief in Opposition to Certiorari

    In the

©mtrt of lljp ^tatrs
Octobee T eem, 1971 

No. 71-274

W inston-Salem/ F orsyth County B oaed of E ducation,

Petitioner,
v.

Catherine Scott, et at.

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF IN OPPOSITION TO CERTIORARI

J. L eV onne Chambers
A dam S tein
Chambers, Stein, F erguson & L anning 

237 West Trade Street 
Charlotte, North Carolina 28202

Jack Greenberg
J ames M. Nabrit, III
Norman J. Chachkin 

10 Columbus Circle 
New York, New York 10019

Conrad 0 . Pearson
203% East Chapel Hill Street 
Durham, North Carolina 27702

Attorneys for Respondents



I n the

Sstpratt? (Emtrt nf tljp llmtrii States
October T erm, 1971 

No. 71-274

W inston-Salem/ F orsyth County B oard of E ducation,
Petitioner,

v .

Catherine Scott, et al.

on writ of certiorari to the united states 
court of appeals for the fourth circuit

BRIEF IN OPPOSITION TO CERTIORARI

Statement

This school desegregation case was filed October 2, 1968. 
The opinion of the district court shows that at the time of 
trial in 1970 eighty-three percent (83%) of the black stu­
dents in the system (11,539 of the total Negro student 
population of 13,879) were attending 19 all-black or vir­
tually all-black schools (A-7 to A - l l ) .1 In this group, 8,565 
Negroes attended 15 schools which were 100% black, and 
the rest were in two schools more than 99% black, one 98% 
black school and one 97% black school (A-7 to A -ll) . The 
district court opinion traces the history o f school segre­
gation in the community: No Negro child was admitted to a

1 The appendix to the petition for certiorari is cited herein as 
“A- ” .



2

white school until 1957, or three years after Brown v. Board 
of Education, 347 U.S. 483, when a single Negro child was 
admitted to a white school in the district. Only a handful 
of Negroes were allowed such transfers in the ensuing 
several years; the number changed from 4 pupils in 1958 
to 44 pupils in 1962, the sixth year of limited “ integration” 
of the system (A-13). Separate overlapping attendance 
zones and bus routes based on race were maintained until 
the district was forced to abandon them to maintain its 
eligibility for federal financial aid under the Civil Rights 
Act of 1964 (A-14). In 1966-67, the district established a 
geographic attendance zone plan with a free transfer pro­
vision (A-15).

Plaintiffs sued contending that the free transfer plan was 
inadequate to bring about desegregation of the system. Cf. 
Green v. County School Board, 391 U.S. 430; Monroe v. 
Board of Commissioners, 391 U.S. 450. The school board, 
at trial, presented a proposal which would have increased 
the number of Negroes not in all-black schools from about 
2,340 in 1969-70 to about 3,737 in 1970-71 (A-36 to A-38). 
The district court held that the board’s desegregation pro­
posal was insufficient, stating in its conclusions of law :

3. Upon proper compliance with the direction of 
the Court herein with reference to Diggs Elementary, 
Kimberly Park Elementary, Cook Elementary (Carver 
Crest), no person will be excluded from any school 
because of race or color.

4. The plan of the Board for the operation of the 
three schools mentioned in Paragraph 3 first above 
does not comply with recently enunciated constitutional 
principles in this Circuit, and the racial composition in 
these schools must be changed.

5. Except in the area of pupil composition, the 
Board’s plan effects a unitary system.



3

The district court ordered additional steps to desegre­
gate the three all-black elementary schools mentioned, an 
order which had the anticipated effect of increasing the 
number of Negroes not in all-Negro schools to about 5,1752 
or nearly double the number in such schools at the time of 
trial. Both sides appealed to the Fourth Circuit, with the 
board arguing that the added integration ordered by the 
district court was improper and burdensome and the plain­
tiffs arguing that the district court erred by permitting the 
board to continue to maintain more than 8,000 black pupils 
in twelve all-black schools. During the 1970-71 school year 
the district court’s plan remained in effect and the court 
of appeals postponed argument until after this Court’s 
decisions in the Charlotte and Mobile cases. Swann v. 
Charlotte-Mecklenburg Board of Education, 402 U.S. 1; 
Davis v. Board of School Commissioners of Mobile County, 
402 U.S. 33.

The case was briefed and argued in the court below fol­
lowing this Court’s Swann and Davis decisions, supra. A 
per curiam decision of the Fourth Circuit, sitting en banc, 
was issued covering Winston-Salem/Forsyth County and 
three other school systems. The Fourth Circuit, on June 
10, 1971, remanded the cases “ to the respective district 
courts with instructions to receive from the respective 
school boards new plans which will give effect to Swann 
and Davis”  (A-99). The Court held:

It is now clear, we think, that in school systems that 
have previously been operated separately as to the 
races by reason of state action, “ the district judge or 
school authorities should make every effort to achieve 
the greatest possible degree of actual desegregation,

2 The number of additional black pupils desegregated by the 
integration of these three all-black schools is obtained from the 
board’s projections. See record in the Fourth Circuit, pp. 246-254.



4

taking into account the practicalities of the situation.”
Davis, supra a t ------ . We remand these cases because
the respective district judges did not have the benefit 
of the Supreme Court mandate that adequate con­
sideration be given “to the possible use o f bus trans­
portation and split zoning.” Davis, supra at ------ .
Wherever schools are “ all or predominantly of one 
race in a district of mixed population [there will be 
required] close scrutiny to determine that school as­
signments are not part of state-enforced segregation.”
Swann, supra a t ------ . Although the existence of “ some
small number of one-race, or virtually one-race, schools 
within a district is not in and of itself the mark of a 
system which still practices segregation by law,” 
Swann, supra at — —, both the school authority and 
the district judge must nevertheless be concerned with 
the elimination of one-race schools. (A-99 to A-100)

*  #  *

The school authorities and the district court should 
consider the use of all techniques for desegregation, 
including pairing or grouping of schools, noncontiguous 
attendance zones, restructuring of grade levels, and 
the transportation of pupils.

If the district court approves a plan achieving less 
actual desegregation than would be achieved under an 
alternative proposed plan it shall find facts that are 
thought to make impracticable the achieving of a 
greater degree of integration, especially if there re­
main any schools all or predominately of one race. 
(A-101 to A-102)

*  *  #

In Winston-Salem/Forsyth County, the school board 
may fashion its plan on the Larsen plan with necessary



5

modifications and refinements or adopt a plan of its 
choice which will meet the requirements of Swarm and 
Davis. (A-103)

Judge Bryan wrote a special concurring opinion empha­
sizing his understanding that the district court was not 
compelled to adopt the “ Larsen Plan” advocated by plain­
tiffs, and that the district court had the “ true” alternative 
of accepting some other plan meeting the requirements of 
Swann and Davis (A-104).

While the petition for certiorari seeks review of the 
Fourth Circuit decision of June 10, 1971, the board has 
attempted to support its arguments by reference to subse­
quent proceedings in the district court culminating in an 
order of the district court of July 26, 1971 (A-110 to A-115) 
directing implementation of a revised proposal presented 
by the school board (A-116 to A-144). However, the school 
board did not take any appeal from the order of the district 
court of July 26, 1971. Instead, the board presented an 
application to the Chief Justice for a stay of the district 
court order on August 23, 1971, pending certiorari. The 
stay application was denied with an opinion by the Chief 
Justice on August 31, 1971. Winston-Salem,/Forsyth 
County Board of Ed. v. Scott, Oct. Term, 1971, No. 71-274, 
August 31,1971.

Reasons Why the Writ Should Not Be Granted

Respondents respectfully suggest that the case does not 
present an appropriate occasion for the exercise of the 
certiorari jurisdiction.

1. The decision of the court of appeals is limited and 
narrow. It virtually tracks the appropriate language of this 
Court’s decisions in Swann and Davis and directs recon­



6

sideration and the preparation of new plans in light of this 
Court’s governing decisions in those cases. This was en­
tirely appropriate, especially since admittedly the district 
court’s opinion under review had been guided by the Fourth 
Circuit’s 1970 decision in Swann. The petition for certiorari 
argues from the premise that the district court had con­
cluded in 1970 that the system was unitary (Petition for 
Certiorari, p. 6). This premise is incorrect, as we have 
demonstrated in the Statement, supra, by quotation from 
the district court conclusions of law (A-66 to A-67). The 
court’s conclusion was that “Except in the area of pupil 
composition, the Board’s plan effects a unitary system” 
(A-67, emphasis added).

The district court justified its decision to permit twelve 
all-black schools to remain in the system by reference to 
the “ reasonableness” doctrine enunciated by the Fourth 
Circuit in Swann in May, 1970:

2. Under the plan of operation submitted by the 
Board for the 1970-71 school year, there will result 
some all-white and some all-black schools. This fact, 
however, will not invalidate the plan because the large 
black residential areas in the City of Winston-Salem 
are such that reasonably all schools cannot be inte­
grated. . . .  (A-66; emphasis added.)

The district court then disapproved the Larsen Plan, advo­
cated by plaintiffs as unduly burdensome relying on the 
precedent of the Fourth Circuit’s Swann decision, rendered 
a few weeks earlier, which had disapproved a similar ele­
mentary school plan in the Charlotte case. Four days later, 
on June 29, 1970, this Court reinstated the district court 
plan in Swann (399 U.S. 926). And ultimately the Court 
upheld that plan. Swann, supra, 402 U.S. 1, 31. In these 
circumstances, it was entirely appropriate for the Fourth 
Circuit to remand the case for reconsideration.



7

2. The Fourth Circuit was also correct in directing that 
the school board might fashion its plan on the Larsen Plan, 
and that in any event if the court should approve a plan 
providing less desegregation “ it shall find facts that are 
thought to make impracticable the achieving of a greater 
degree of integration, especially if there remain any schools 
all or predominantly of one race.” The Fourth Circuit’s 
conclusion that the Larsen Plan offered a viable method of 
desegregation was solidly grounded in that court’s famil­
iarity with the detailed record in the case (as well as with 
the record in the Charlotte case involving a comparable 
plan). The Fourth Circuit’s conclusion that any approval 
of less desegregation than was promised by the Larsen 
Plan must be accompanied by specific fact-finding was 
solidly grounded on this Court’s decisions in Swann, 402 
U.S. 1, 25-31, and Green v. County School Board, 391 U.S. 
430, 439.

The school board has asserted that it was compelled to 
adopt a plan racially balancing every school. The Fourth 
Circuit decision states no such requirement but merely 
enforces the presumption against one-race schools an­
nounced by this Court’s Swann decision. The Fourth Cir­
cuit indeed even quoted this Court’s language from Swann 
that the existence of “ some small number of one-race, or 
virtually one-race, schools within a district is not in and of 
itself the mark of a system which still practices segregation 
by law” (A-99 to A-100). We see nothing in the opinion 
below which supports the proposition that the Fourth Cir­
cuit misunderstood the meaning of this Court’s decisions in 
Swann and Davis. 3

3. The action of the district court following the Fourth 
Circuit decision presents no substantial question. Notwith­
standing the school board’s self-serving declaration that the 
plan it submitted in response to the decision of the Fourth



8

Circuit was based on “the required objective of achieving 
a racial balance in the public schools of Forsyth County,” 
there is nothing in the record which supports the assertion 
that the courts below made any such requirement. On re­
mand the school board presented the district court with only 
one proposal and that plan was approved over plaintiffs’ 
objection. The district court chose the board’s plan over 
the Larsen Plan. The board has filed no appeal from the 
district court’s order approving its reluctantly submitted 
proposal.

The school year opened in September 1971 with the new 
plan in effect. No report on its operation has yet been filed 
in the district court, but the board has again filed a motion 
in the trial court seeking to have the plan withdrawn and 
permission to revert to the prior segregated pattern. The 
board’s motion is now scheduled for a hearing in the district 
court. The resistance to desegregation and the litigation 
continue.

Respectfully submitted,

J. L eV onne Chambers
A dam Stein
Chambers, Stein, F erguson & Lanning 

237 West Trade Street 
Charlotte, North Carolina 28202

J ack Greenberg
James M. Nabrit, III
Norman J. Chachkin 

10 Columbus Circle 
New York, New York 10019

Conrad 0 . P earson
2031/i> East Chapel Hill Street 
Durham, North Carolina 27702

Attorneys for Respondents



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