Bowditch v. Buncombe County Board of Education Brief for Appellants
Public Court Documents
January 1, 1965

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Brief Collection, LDF Court Filings. Bowditch v. Buncombe County Board of Education Brief for Appellants, 1965. f0352e3b-ca9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/161d9aae-8327-49d9-8f99-d12732298ae5/bowditch-v-buncombe-county-board-of-education-brief-for-appellants. Accessed April 28, 2025.
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In t h e Ittttefr # tate (frrart nf Appeals F oe t h e F o u r t h C iecxtit No. 9628 C andance Elain B o w d it c h , et al., Appellants, —-v.— T h e B uncom be C o u n ty B oaed oe E d u ca tio n , a public body corporate, Appellee. a ppea l pb o m t h e u n it e d states d isteic t court eo e t h e W E S T E R N D IS T E IC T OF N O E T H CA R O LIN A , A S H E V IL L E D IV ISIO N BRIEF FO R APPELLANTS R u b e n J . D ailey R obert L. H arrell 13% Eagle Street Asheville, North Carolina C onrad 0 . P earson 203% East Chapel Hill Street Durham, North Carolina J . L ev o n n e C h a m bers 405% East Trade Street Charlotte, North Carolina J ack Green berg D er r ic k A. B e l l , Jr. J am es M . N a b eit , TIT M elv y n Z arr 10 Columbus Circle New York, New York 10019 Attorneys for Appellants I N D E X PAGE Statement of the Case .................. ..................... .......... 1 Questions Involved.......................................... ............... 4 Statement of Facts ............................ .......... ................ 5 A r g u m e n t : I. The Court Below Erred in Postponing High School Desegregation Where the Defendant Board Maintains No High School for Negroes but Sends Them to an Overcrowded All- Negro High School in Another Administra tive Unit While Providing a High School Education Within the County School System for All the White Pupils............................... 9 II. The Desegregation Plan Is Inadequate in That the Single Zone System for Making Ini tial Assignments of Pupils Applies Only at the First Grade Level................. .................. 14 III. The Court Below Erred in Refusing to En join, as an Aspect of Appellees’ Racially Dis criminatory Policies in the Operation of the Buncombe County Public Schools, the As signment of Teachers and School Personnel on the Basis of Race ..................................... 16 C o n c lu sio n 20 11 T a b l e o e G a s e s PAGE Anderson v. Martin, 375 U. S. 399 _______ _______ 19 Armstrong y. Board of Education of the City of Bir mingham, 333 P. 2d 47 (5th Cir. 1964) .......... ....... 12 Board of Public Instruction of Duval County v. Brax ton, 326 F. 2d 616 (5th Cir. 1964), cert, denied, 377 U. S. 924 ............................ .................. .... ......... ...... 17 Bradley v. School Bd. of City of Richmond, 317 F. 2d 429 (4th Cir. 1963) ........ ........... .......... ................. 14 Brown v. Board of Education, 347 U. S. 483 .......5,12,16,17 Brown v. Board of Education, 349 U. S. 294 _____12,15 Buckner v. County School Board of Greene County, 332 F. 2d 452 (4th Cir. 1964) ....... ........... ..12,14,15,19 Calhoun v. Latimer, 377 U. S. 263 .................. .... .... .... 12 Clemons v. Board of Education of Hillsboro, Ohio, 228 F. 2d 853 (6th Cir. 1956) .......................................... 13 Cooper v. Aaron, 358 U. S. 1 .......... ............... ......... 15,17 Corbin v. County School Board of Pulaski County, 177 F. 2d 924 (4th Cir. 1949) ________ _______ 11 Crisp v. County School Board of Pulaski County (W. D. Va. 1960, C. A. 1052), 5 Race Rel. L. Rep. 721 ___ 12 Davis v. Board of School Com. of Mobile County, Ala., 333 F. 2d 53 (5th Cir. 1964) .................. ..... . 13 Dowell v. School Board of the Oklahoma City Public Schools, 219 F. Supp. 427 (W. D. Okla. 1963) ..... 18 Gaines v. Daugherty County Board of Education (5th Cir. No. 20984, decided July 31, 1964) ..................... 13 Goins v. County School Board of Grayson County, 186 F. Supp. 753 (W. D. Va. 1960), stay denied, 282 F. 2d 343 (4th Cir. 1960) 12 Ill PAGE Goss v. Board of Education, 373 U. S. 683 ---------- 12,14 Green v. School Board of City of Roanoke, 304 F. 2d 118 (4th Cir. 1962) ........... ...................................... 14,19 Griffin v. County School Board of Prince Edward County, 377 U. S. 218 ......... .................. .............. . 12 Griffith v. Board of Education of Yancey County, 186 F . Supp. 511 (W. D. N. C. 1960) __ ________ ___ 11 Jackson v. School Board of the City of Lynchburg, 321 F. 2d 230 (4th Cir. 1963) .............. .................. ......12,18 Johnson v. Virginia, 373 U. S. 61 ................. .............. 19 Jones v. School Board of Alexandria, 278 F. 2d 72 (4th Cir. 1960) ________ ____ ______ _______ ___ 19 Manning v. Board of Public Instruction of Hillsbor ough County, Florida, 7 Race Rel. L. Rep. 681 (S. D. Fla. 1962) ___________ __________ ___________ 18 Mapp v. Board of Education of Chattanooga, 319 F. 2d 571 (6th Cir. 1963) .................... ............ .................... 17 McLaurin v. Oklahoma State Regents, 339 U. S. 637 .... 19 Missouri ex rel. Gaines v. Canada, 325 U. S. 337 ...... 11 Northcross v. Board of Education of the City of Memphis, 333 F. 2d 661 (6th Cir. 1964) ....... . 17 Pearson v. Murray, 169 Md. 478, 182 A. 2d 590, 103 A. L. R. 706 (1936) ....... .......................................... 11 Peterson v. Greenville, 373 U. S. 244 ..... .............. ......... 19 School Board of Warren County v. Kilby, 259 F. 2d 497 (4th Cir. 1958) ........... ............ ...... .................. 11 Stell v. Savannah-Chatham County Board of Educa tion, 333 F. 2d 55 (5th Cir. 1964) Sweat! v. Painter, 339 U. S. 629 ..... 13 19 PAGE Tillman v. Board of Public Instruction of Volusia County, Florida, 7 Race Rel. L. Rep. 687 (S. D. Fla. 1962) ............................. ....................................... ...... 18 Walker v. County School Board of Floyd County (W. D. Va. 1960, C. A. No. 1012), 5 Race Rel. L. Rep. 714 ____________ _______________ ____ ____ ___ 12 Watson v. City of Memphis, 373 U. S. 526 .......... ...12,19 I n t h e (Enurt 0! KppmU F oe t h e F o u r th C ir c u it No. 9628 C andance E l a in B o w d itc h , et al., Appellants, T h e B u n c o m b e C o u n ty B oard of E d u ca tio n , a public body corporate, Appellee. a ppea l fro m t h e u n it e d states d istrict court for t h e W E S T E R N D ISTR IC T OF N O R T H CA R O LIN A , A S H E V IL L E D IV ISIO N BRIEF FOR APPELLANTS Statement o f the Case This is an appeal from an order (195a) of the United States District Court for the Western District of North Carolina, Asheville Division, approving a plan for desegre gation of the Buncombe County Public Schools submitted by the School Board of Buncombe County (56a). This is an action for a permanent injunction, filed on January 23, 1964, by thirty-four Negro school children and their parents and guardians, on behalf of themselves and others similarly situated, against the Buncombe County Board of Education. In general the complaint alleged that 2 appellee School Board operated the County schools on a racially segregated basis, requiring that Negro high school students and many Negro elementary school students be transported out of the appellee’s administrative school dis trict into another school district, involving in many in stances the travel of over thirty miles per day to obtain a public school education (5a); that appellee assigned all teachers and school personnel on a racially segregated basis; that at the close of the 1963 school term three of the appellants requested reassignment to an all-white school and their applications were denied by appellee Board; that the appellants and other Negro parents on behalf of thirty-two Negro children had petitioned the Board to cease operating the public schools of Buncombe County on a racially discriminatory basis; that pursuant to said petition the appellee Board adopted a plan providing for the right of students assigned to schools out of their school district to request transfer to a school within their district, over a four-year period; that the plan adopted by the Board failed to provide for the right of all Negro students, pres ently being assigned to schools outside the Buncombe County School System, to be assigned to the schools within said school system; that the plan required that all Negro students assigned to schools on a racially discriminatory basis request reassignment to a school within their atten dance area; that the plan failed to guarantee that transfers would be granted; that the plan did not affect all grades until the 1967-68 school term, some fourteen years after Brown v. Board of Education; that the plan failed to make provisions for the assignment of teachers and other pro fessional personnel (7a-8a). On or about April 3, 1964, the appellee school Board, in their answer, moved to strike those portions of the com plaint dealing with appellee’s racially discriminatory as- 3 signment of teachers and school personnel and to dismiss the action (13a). Interrogatories were filed by appellants on May 20, 1964, and objections thereto filed by the appellee. The cause was set for pre-trial conference on June 4, 1964, at which time a pre-trial order was entered denying appellee’s objec tions to appellants’ interrogatories. The Court further noted that the case had been pre-tried in March, 1964, and ruled that both sides could file briefs on any unresolved questions that may arise and which should be ruled upon by the Court not later than June 19, 1964, in order that the case could be set for trial as the first case after the pre- trial calendar which began July 13,1964 (32a). The case was set for trial and heard on July 15, and 16, 1964. The case was submitted to the Court on stipulated facts and evidence produced by appellants and appellee. The appellee conceded that it had operated and was pres ently operating the public schools of Buncombe County on a racially discriminatory basis (183a) and proposed that the plan it had adopted in January, 1964, providing for the right of Negro pupils to request reassignment over a four- year period, be approved as reasonable (61a). On July 20, 1964, the Court entered Findings of Fact, Conclusions of Law and an Opinion (182a) in which it found that all the named appellants should be transferred this school term because of the “outrageous” practices in transporting them long distances to schools outside of their school district; that the plan proposed by the Board was reasonable if modified to permit Negro pupils to request transfer over a three rather than a four-year period, and if notice of the right to transfer is to be mailed to each Negro child or his parents. Thus, in an order dated August 19, 1964, the Court ordered the admission of all named appel lants immediately to a school within their attendance area 4 and modified the plan to permit transfers in grades 1-8 for the 1964-65 school year, and transfers in grades 1-10 for the 1965-66 school year and transfers in grades 1-12 for the 1966-67 school year. The Court further held that the minor appellants were not proper parties to obtain relief against appellee’s assignment of teachers and other pro fessional school personnel on a racially discriminatory basis, and that the Court should retain jurisdiction of the cause. Appellants filed notice of appeal on August 27,1964. Questions Involved 1. Whether the Court erred in approving a plan to delay desegregation at the high school level, except for the named plaintiffs, until September, 1965 for grades 9 and 10 and until September, 1966 for grades 11 and 12, where the school board maintains no high school for Negroes and sends them by bus a substantial distance outside the administrative unit to attend an overcrowded all-Negro high school in the City of Asheville, while providing a high school education within the county school system for all white pupils. 2. Whether a plan for desegregation of Buncombe County public schools which continues indefinitely racially discriminatory assignments of pupils and imposes the bur den on them of requesting reassignment in order to obtain a desegregated education complies with the decisions of the Supreme Court and of this Court. 3. Whether Negro public school children have standing to complain of and obtain relief against a school board’s policy of racial discrimination in the assignment of teachers and school personnel on the ground that it deprives them of their right to attend a desegregated school system in violation of the due process and equal protection clauses of the Fourteenth Amendment to the Constitution of the United States. 5 Statement o f Facts There are approximately 20,000 students in the Bun combe County administrative school unit, approximately 500 of whom are Negroes (182a-183a). The system has thirty-three public schools, thirty-one of which are attended by white pupils and two of which are attended by Negro elementary pupils. There is no high school within the administrative unit for Negro pupils (183a). Prior to and since the United States Supreme Court’s decision in Brown v. Board of Education, 347 U. S. 483 (1954), Negro high school pupils have been assigned to the Stephens Lee High School, an all-Negro high school under the jurisdiction of the City of Asheville Board of Edu cation, which assignment involves in many instances trips of over thirty miles per day for some Negro high school students (187a). There are approximately 743 teachers in the Buncombe County administrative school unit, and all white teachers and school personnel are assigned to the 31 white schools while all Negro teachers and school personnel are assigned to the 2 Negro elementary schools (182a, 188a). At the close of the 1962 school year, twenty-two Negro pupils requested transfer to all-white schools. Of these twenty-two requests, twelve were granted to students in grades 1-3 (184a). For the 1963-64 school year, a plan was adopted by the Board which provided for the right of such pupils to request transfer over a four-year period (184a- 185a). In January, 1964, the Board re-adopted the plan and notified each principal within the school unit and published it in local newspapers (184a). The plan approved by the Board provided as follows: 6 Now, t h e r e fo r e , be it resolved by The Board of Education of Buncombe County that in order to best promote the orderly and efficient administration of the Public Schools in this unit, the effective instruction for students subject to assignment by this Board, and to provide for the general welfare of such students and each of them, and for the proper utilization of physical facilities presently available, that the students eligible to attend the schools of this administrative unit shall be assigned as follows: F ir s t : First grade pupils who are entering school for the first time shall be initially assigned to the elementary school located in the attendance area in which said pupils reside. S e c o n d : Those pupils presently enrolled who have successfully completed their grade in school shall be reassigned for the following year to the next succeed ing grade of the same school or assigned to the next succeeding grade of the school which serves the stu dents of the school from which they have been pro moted. T h ir d : For the school year 1964-65 the parent or person standing in loco parentis of any pupil assigned to a school in grades 1-4 outside his own attendance area, may, within ten (10) days after receipt of report card assignment, request transfer to the school serv ing the area in which the pupil resides. F o u r t h : For the school year 1965-66 the parent or person standing in loco parentis of any pupil as signed to a school in grades 1-8 located outside his own attendance area, may, within ten (10) days after receipt of report card assignment, request transfer to the school serving the area in which the pupil resides. 7 F ifth: For the school year 1966-67 the parent or person standing in loco parentis of any pupil assigned to a school in grades 1-10 located outside his own attendance area, may, within ten (10) days after re ceipt of report card assignment, request transfer to the school serving the area in which the pupil resides. Sixth: For the school year 1967-68 the parent or person standing in loco parentis of any pupil assigned to a school in grades 1-12 located outside his own attendance area, may, within ten (10) days after re ceipt of report card assignment, request transfer to the school serving the area in which the pupil resides. S e v e n t h : Those pupils who have not been assigned prior to the opening of school, those pupils who move into the administrative unit during the school year, and those pupils who change their residence from one attendance area to another during the school year shall be assigned or reassigned to a school in accord ance with present existing rules, regulations and pro cedure as modified by this plan of assignment and re assignment. E ig h t h : That the Board of Education of Buncombe County reserves the right to change the assignment of any pupil or pupils at any time as the necessity there for may arise. The Board also adopted attendance areas for elementary and high schools within the administrative unit (186a). It was stated, however, that if within a particular area schools became overcrowded, then some students might be shifted to a school outside the area or the area line might be redrawn (186a). As justification for its plan and its limitation on the right of Negro pupils to request transfer, the Board asserted that most of the schools were overcrowded and that to per- 8 mit transfers of Negro pupils would further overcrowd the various schools (23a). On cross-examination, however, it was shown that in only one area, the Black Mountain area, was there a sufficient number of Negro pupils to cause any obstacle to the Board in immediately transferring all of the Negro pupils to schools in their own area (98a). The Superintendent of Schools testified that the Black Mountain elementary school had approximately 1100 stu dents in attendance, slightly in excess of capacity (120a). He testified that there were approximately eighty to eighty- five Negro pupils in this area who were being transported out of the area and out of the administrative unit to the Stephens Lee High School (107a). In other areas, al though in some instances there was some overcrowded con ditions, the small number of Negro pupils in these areas was not sufficient to cause any serious administrative prob lem or impose any unreasonable administrative burden upon the Board if the pupils were transferred immedi ately to the schools within their attendance areas (97a, 102a, 109a, 118a). Appellants introduced the testimony of W. P. Griffin, Su perintendent of Schools of the City of Asheville, Joseph E. Belton, Principal of the Stephens Lee High School and O. L. Norman, a former assistant Superintendent of Schools of Asheville. These witnesses testified generally that the Stephens Lee High School in Asheville, the school to which Negro pupils are assigned by the Buncombe County Board of Education, is also “terribly overcrowded” (187a). The enrollment capacity of the Stephens Lee High School is approximately 650 or 700 (187a). There are approxi mately 900 students now attending the Stephens Lee High School (187a). Because of the overcrowded conditions in the Stephens Lee High School, created largely by the as signment of the Negro pupils from the county to the Ste phens Lee School, the school has had to utilize various rooms normally used for other purposes (187a). 9 A R G U M E N T I. T he C ourt Below E rred in P ostpon ing H igh School D esegregation W here the D efendan t B oard M aintains No H igh School fo r N egroes bu t Sends T hem to an O vercrow ded All-Negro H igh School in A nother A dm in istra tive U nit W hile P rov id ing a H igh School E ducation W ith in th e County School System fo r All th e W hite Pupils. The defendant Board of Education of Buncombe County maintains no high school which Negro pupils are permitted to attend. Although all white pupils are accommodated at the six white high schools within the County school system, all Negro high school pupils are assigned to the Stephens Lee High School, an all-Negro school operated by the City of Asheville Board of Education. Many of these Negro pu pils are required to travel by bus over thirty miles a day to the high school in Asheville. There are only about 150 Negro students of high school age living within the county system. The trial court condemned this arrangement as “outra geous” but refused to order that it be abandoned immedi ately. The trial court did order that the named plaintiffs of high school age be admitted to a white high school within the County in September, 1964, but approved a gradual plan for the admission of the other Negro high school pupils to the white high schools. Thus, the 9th and 10th grades are scheduled to be desegregated in September, 1965, and the 11th and 12th grades in September, 1966. The School Board attempted to justify this delay in de segregation because of anticipated overcrowding, and the 10 court apparently accepted this basis for delay.1 How ever, it was clear that the all-Negro school in Asheville (the Stephens Lee High School) was also “terribly over crowded,” according to the testimony of an Asheville school official. Furthermore, notwithstanding possible over crowding in the white high schools in Buncombe County, all white pupils were permitted to attend a high school within their administrative unit and none were required to be transported out of the area. Appellants submit that this arrangement is not only “outrageous” but that the Board should have been on notice that such arrangements had long been condemned by the courts. Additionally, appellants submit that the School Board failed to maintain its burden of establishing the necessity for delaying desegregation over a two year period. Arrangements such as the one in this case have been the subject of frequent litigation in various communities in North Carolina and Virginia having only a few Negro pupils in the school system. As long ago as 1949, this Court held that an arrangement in Pulaski County, Virginia, whereby Negro pupils were not allowed to attend a high school in their own county but were bused to school in an- 1 High School Enrollment and capacity figures and projections as indicated in the school board’s answers to interrogatories may be summarized as follows: 1964-65 1964-65 1963-64 Enrollm ent No. o f Negro School Enrollm ent Pro jection Capacity Pupils in A rea Erw in _______ 1090 1147 975 3 N. Buncombe _ 865 919 750 11 O w en__________ 991 1011 1000 61 Reynolds ____ 935 974 825 15 Enka ________ ____ 1134 1171 1100 0 Robertson ___ .... 649 669 650 68 Totals _____ 5664 5891 5300 158 11. other community, did not meet the requirements of the sep- arate-but-equal doctrine. Corbin v. County School Board, of Pulaski County, 177 F. 2d 924, 927 (4th Cir. 1949). In 1958 this Court affirmed an interlocutory injunction requiring that Negro pupils, then being sent outside the county, be admitted to the white high school in Warren County, Virginia, and wrote that “by any possible test, this dis crimination is legally indefensible.” School Board of War ren County v. Kilby, 259 F. 2d 497, 498 (4th Cir. 1958). In the Warren County case, some Negro pupils were sent to an adjoining county each day while others were sent to a boarding school from which they could return home only on weekends, while no white pupils were subjected to such treatment. In the Warren County case the School Board’s request for one year’s delay was unanimously rejected by this Court in 1958. The Buncombe County school authorities could hardly have failed to be aware of the law, since the Stephens Lee High School in Asheville, the all-Negro school with which they had an arrangement, was involved in litiga tion which resulted in a desegregation order in 1960. Griffith v. Board of Education of Yancey County, 186 F. Supp. 511 (W. D. N. C. 1960). The court condemned an ar rangement which involved the assignment of all Negro high school pupils in Yancey County, North Carolina to the Ste phens Lee High School in Asheville. District Judge War- lick, in deciding the Griffith case, made plain his agreement that this treatment of Negroes did not even meet the out moded separate-but-equal test of Missouri ex ret. Gaines v. Canada, 325 U. S. 337, which invalidated an arrangement sending Negro law students outside a state. And see the similar holding by the Maryland Court of Appeals in Pearson v. Murray, 169 Md. 478, 182 A. 2d 590, 103 ALB 706 (1936). Recently, this Court branded this type of 12 policy as “discrimination in a most pernicious form.” Buch ner v. County School Board of Greene County, 332 F. 2d 452, 455 (4th Cir. 1964).2 Despite the many clear precedents condemning such practices, the Buncombe County school authorities made no beginning to desegregation at the high school level until a few of the present plaintiffs were admitted by court order in September, 1964. Their proposed plan w’ould not have provided for any high school desegregation until September, 1966 nor provided for admission of Negroes to all grades in the high school until September, 1967. As modified by the trial court, the plan will not reach the high school level until 1965 and will not cover all grades until September, 1966. This delay, it must be remembered, is sought in a county where Negroes make up only about 3% of the school popu lation and where there are only about 150 Negro high school students. The Supreme Court has indicated that the courts must consider the passage of time since the Brown decision in judging the adequacy of desegregation timetables. Watson v. City of Memphis, 373 U. S. 526, 530, quoted and followed in Jackson v. School Board of the City of Lynchburg, 321 F. 2d 230, 233 (4th Cir. 1963).3 The decision in Brown v. Board of Education, 349 U. S. 294, 300, emphasized that when school boards sought delays of desegregation they 2 D istrict Courts have condemned such arrangements in the fol lowing cases: W alker v. County School Board of Floyd County, (W. D. Ya. 1960, C. A. No. i012), 5 Race Rel. L. Rep. 714; ■Crisp v. County School Board of Pulaski County, (W. D. Va. 1960, C. A. 1052), 5 Race Rel. L. Rep. 721; and Corns v. County School Board of Cray son County, 186 F. Supp. 753 (W. D. Ya. 1960), stay denied, 282 F. 2d 343 (4th Cir. 1960). 3 See also, Goss v. Board of Education, 373 U. S. 683, 689 • Cal houn v. Latimer, 377 TJ. S. 263, 364-65; Griffin v. County School Board of Prince Edward County, 377 U. S. 218, 234 (“The time for mere ‘deliberate speed’ has run out . . . ” ). See also, Armstrong v. Board of Education of the City of Birmingham, 333 F. 2d 47 (5th 13 had the burden “to establish that such time is necessary in the public interest and is consistent with good faith compli ance at the earliest practicable date.” It can hardly be said that here there has been good faith compliance “at the earliest practicable date.” For, it is surely unbelievable that the school authorities could not have made satisfactory arrangements and solved all administrative problems in connection with admitting 150 Negro pupils to its several high schools in the time that has passed since the second Brown decision in 1955, or since the Kilby case was decided in 1958, or, indeed, since the Yancey County case was de cided in 1960. Certainly overcrowding of the white schools in Buncombe County cannot be used to justify continued segregation. Clemons v. Board of Education of Hillsboro, Ohio, 228 F. 2d 853, 857-858, 860 (6th Cir. 1956). And clearly, there is no justification for even temporary continuation of the present arrangement where no white pupils are kept out of the schools on the ground of overcrowding and Negro students are themselves sent to an out-of-district school which is con sidered “terribly overcrowded.” There is no reason for ex cluding only Negroes because of overcrowding. Appellants submit that the School Board should be required to provide all Negro high school pupils in the County the opportunity to attend school within their county school system which was given the named plaintiffs and to notify them of this right forthwith. Appellants further submit that at the beginning of the next school semester, the School Board should be required to place all Negro pupils under its jurisdiction in a high school operated by the County School Board. Cir. 1964) ; Davis v. Board of School Com. of Mobile County, Ala., 333 F. 2d 53 (5th Cir. 1964) ; Stell v. Savannah-Chatham County Board of Education, 333 F. 2d 55 (5th Cir. 1964) ; Gaines v. Daugherty County Board of Education (5th Cir. No. 20984, de cided Ju ly 31,1964). 14 II. The Desegregation Plan Is Inadequate in That the Single Zone System for Making Initial Assignments o f Pupils Applies Only at the First Grade Level. The plan approved below provides for initial assignments on the basis of a single set of zones for both races in the first grade in 1964. The effect of this is that pupils already in elementary schools will be continued on a segregated basis unless they apply for transfers. Furthermore, Negro pupils completing elementary school (grades 1-8) will con tinue to be assigned outside the administrative unit to the all-Negro high school in Asheville unless they seek transfers to attend a white high school within the county system. Obviously, the continuation of a practice of initially assigning students on a racial basis violates the Constitu tion, just as discrimination in processing transfer applica tions does. Buckner v. County School Board of Greene County, 332 F. 2d 452 (4th Cir. 1964); Bradley v. School Bd. of City of Richmond, 317 F. 2d 429 (4th Cir. 1963); Green v. School Board of City of B,oa/noke, 304 F. 2d 118 (4th Cir. 1962). The Supreme Court tacitly assumed the il legality of racial initial assignments in Goss v. Board of Education, 373 U. S. 683, 688, stating: The recognition of race as an absolute criterion for granting transfers which operate only in the direction of schools in which the transferee’s race is in the ma jority is no less unconstitutional than its use for orig inal admission or subsequent assignment to public schools. (Emphasis added.) Merely allowing Negroes, who are first placed in schools on a segregated basis, to transfer to white schools upon 15 application does not constitute compliance with the duty of school authorities to “devote every effort toward initiating desegregation and bringing about the elimination of racial discrimination in the public school system.” (Emphasis added.) Cooper v. Aaron, 358 U. S. 1, 7; Buckner v. County School Board of Greene County, supra. The Buncombe County school board has made no showing to justify perpetuating the effects of its racial initial assign ments at the elementary school level for a period of at least eight years. In the case of a large and complicated school system it might be possible for a school board to justify, by appropriate evidence, some delay in the process of reassigning all pupils under a system of non-racial zones. But this school system has only 500 Negro pupils (150 of these are in High School) and only two Negro schools. Additionally, only a small number of these pupils would be affected by application of the single zones to all grade levels since many of them live in the areas of the two all-Negro schools. The continuation of the practice of initially placing those Negro pupils who finish elementary school at the all-Negro Stephens Lee High School in Asheville has been discussed in part I of this argument above. As indicated, the Board proposes to first allow Negroes to transfer in grades 9 and 10 in 1965 and in grades 11 and 12 in 1966. But, of course, this does not justify the placement of pupils on a racial basis in the first place as this Court clearly held in the Buckner case, supra, which also involved an out-of-county arrangement. Again, considering the small number of Negro pupils residing in the areas of the several white high schools, and the Board’s failure to present a justifica tion for the period of delay granted, it is submitted that this aspect of the plan is not in compliance with Brown v. Board of Education, 349 U. S. 294, prescribing the type of 16 showing needed for a delay. It should be noted that there was no showing relating to a solution of the board’s over crowding problem to the period of delay. It is submitted that the plan should be modified to require non-racial assignments of pupils at all grade levels at the beginning of the next school year (or other period when initial assignments are made). III. T he C ourt Below E rred in R efusing to E n jo in , as an A spect o f A ppellees’ Racially D iscrim inatory Policies in th e O peration o f the B uncom be County P ub lic Schools, th e A ssignm ent o f T eachers and School P ersonnel on the Basis o f Race. Segregation of teachers in public schools was and is an integral part of the segregated public school system created by law. The Buncombe County system continues the policy of the segregation era by assigning only Negro teachers to work in the all-Negro public schools. No Negro teachers are assigned to teach white pupils. The Board admittedly has no plans to change this practice (65a), though appellants have sought, through the complaint filed in this action, to have restrained, appellees’ racial assignment of teachers and other professional school personnel. In Brown v. Board of Education, 347 U. S. 483, the Su preme Court held that “in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.” Id, at 495. The Court quoted with approval language of the United States District Court for the District of Kansas setting forth the proposition that “segregation with sanction of law, therefore, has a tendency to [retard] the educational and mental development of Negro children and to deprive 17 them of some of the benefits they would receive in a racial [ly] integrated school system.” Id. at 494. In its later decision on the relief to be granted (Brown v. Board of Education, 349 U. S. 294), the Supreme Court repeatedly referred to the requirement that school “systems” be de segregated, and directed that the District Courts “consider the adequacy of any plans that defendants may propose to meet these problems and to effectuate a transition to a ra cially nondiscriminatory school system.” Id. at 300-01. Implicitly recognizing the effect that personnel assignments had upon the placement of pupils, the Supreme Court ex pressly listed personnel problems as one of the administra tive matters that courts might consider in ruling upon the timing and adequacy of desegregation plans. Subsequently, in Cooper v. Aaron, 358 U. S. 1, 7, the Court reaffirmed and restated the requirements of the Brown decisions, emphasizing that school “systems” were involved: State authorities were thus duty bound to devote every effort toward initiating desegregation and bringing about the elimination of racial discrimination in the public school system. (Emphasis added.) Various District Courts and Courts of Appeals have considered the problem of teacher desegregation in recent years and have found that Negro pupils, as an aspect of their relief against a school board’s maintenance of a segre gated school system, may obtain relief against the assign ment of teachers and school personnel on a racial basis. Board of Public Instruction of Duval County v. Braxton, 326 F. 2d 616, 620 (5th Cir. 1964), cert, denied, 377 IT. S. 924; Northcross v. Board of Education of the City of Memphis, 333 F. 2d 661 (6th Cir. 1964) ;4 Dowell v. School 4 The Court below cited Ma.pp v. Board of Education of Chatta nooga, 319 F. 2d 571 (6th Cir. 1963) in support of its holding. 18 Board of the Oklahoma City Public Schools, 219 F. Supp. 427 (W. D. Ofela. 1963); Tillman v. Board of Public In struction of Volusia County, Florida, 7 Race Rel. L. Rep. 687 (S. D. Fla. 1962); and see Manning v. Board of Public Instruction of Hillsborough County, Florida, 7 Race Rel. L. Rep. 681 (S. D. Fla. 1962). Furthermore, the Fourth Circuit held that a complaint seeking a transition to a racially nondiscriminatory school system was sufficiently hroad to bring before the court all aspects of the school’s operation, including desegregation of staff and faculty. Jackson v. School Board of the City of Lynchburg, 321 F. 2d 230 (4th Cir. 1963). This was, in the very least, an implied holding that teacher desegre gation issues were properly a part of school cases. Upon remand in the Jackson case, the District Judge so regarded it. In that case Judge Michie has entered orders requiring the School Board to present a plan dealing with faculty and staff desegregation (unreported Memorandum dated Sep tember 6, 1963, Jackson v. School Board of the City of Lynchburg, C. A. No. 534 (W. D. Va.)), and, later, rejecting a school board plan for teacher desegregation as too in definite and ordering the board to present a more specific plan (Jackson v. School Board, supra, unreported order dated June 17, 1964). In a school system where parents and pupils are allowed to exercise some choice as to which schools they attend, such as that proposed by appellees here, the existence of all-Negro and all-white faculties inevitably works to en courage parents to choose schools on the basis of the race of the teachers. It is evident to all that many parents The Sixth Circuit in Northcross, supra, indicated that it regarded Mapp as supporting the right of pupils to challenge teacher segre gation (333 F . 2d at 666). 19 regard the teaching staff of a school as important in ap praising its desirability. Cf. Sweatt v. Painter, 339 U. S. 629. Certainly in the context of a school system which has for years been segregated by law', the continued mainte nance of all-Negro and all-white school faculties affects and influences the parents’ choices, and fosters segregation. This has been implicitly recognized in another context by this Court. See Jones v. School Board of Alexandria, 278 F. 2d 72, 77 (4th Cir. 1960); Green v. School Board of the City of Roanoke, 304 F. 2d 118, 121 (4th Cir. 1962); Buckner v. County School Board of Greene County, 332 F. 2d 452, 454 (4th Cir. 1964). Even prior to the Brown decision the Supreme Court con demned internal segregation practices within a state uni versity such as segregating a Negro student in his use of the library, cafeteria and within the classroom. McLaurin v. Oklahoma State Regents, 339 U. S. 637. Certainly, teacher segregation is more intimately related to the educational process than a seat in the lunchroom or the library, as in the McLaurin case. If Mr. McLaurin were handicapped in the pursuit of effective graduate instruction,” by these prac tices, then, a fortiori, Negro pupils as a whole are handi capped by the continuation of a practice such as teacher segregation, which, like pupil segregation, was a part of the system of public school segregation premised on the theory of Negro inferiority. Appellants submit that there can be little doubt that teacher segregation is just as offen sive to the Fourteenth Amendment as racial segregation commanded by law or administrative practice on ballots (.Anderson v. Martin, 375 U. S. 399); in restaurants (Peter son v. Greenville, 373 U. S. 244); among courtroom spec tators (Johnson v. Virginia, 373 U. S. 61); or in public parks (Watson v. City of Memphis, 373 U. S. 526). 20 CONCLUSION For the foregoing reasons it is respectfu lly subm itted that the judgment below should be reversed. Respectfully submitted, R u b e n J . D ailey R obert L . H arrell 13% Eagle Street Asheville, North Carolina C onrad 0 . P earson 203% East Chapel Hill Street Durham, North Carolina J . L eV o n n e C ham bers 405% East Trade Street Charlotte, North Carolina J ack Green berg D er r ic k A. B e l l , J r. J a m es M . N abrit , III M elv y n Z arr 10 Columbus Circle New York, New York 10019 Attorneys for Appellants 38