Bowditch v. Buncombe County Board of Education Brief for Appellants

    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