Motion for Leave to File Brief Amicus Curiae and Brief Amicus Curiae for the National Education Association

     [||933c84c5-ce86-4198-8522-055585de9fef||] ® w 
NO, 1713 

IN THE 

SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1969 

  

JAMES E, SWANN, ET AL., PETITIONERS 

CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, ET AL,, RESPONDENTS 

ON PETITION FOR A WRIT OF CERTIORARI TO THE 

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT 

  

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE 
AND 

BRIEF AMICUS CURTAE FOR 
THE NATIONAL EDUCATION ASSOCIATION 

  

  

  

Stephen J. Pollak 
Richard M, Sharp 

734 Fifteenth Street, N.V. 
Of Counsel: . Washington, D. C. 20005 

Shea & Gardner David Rubin 

734 Fifteenth Street, N.W,. 1201 Sixteenth Street, N.W. 

Washington, D.C. 20005 Washington, D.C. 20036 

Attorneys for Amicus Curiae 

National Education Association 
  

   



INTEREST OF THE NATIONAL EDUCATION 

STATEMENT. 

1. Bescrivtion of the Ch ecklenburg School System. 
    

History of     

      The Desegregation oy the District Court on 
February Ei )   

4. The Decision of the Court of Appeals. 
  

REASONS FOR GRANTING THE WRIT. 

Introduction.   

The Duty to Disestablish Racially Identifiable | 
  

xevornice of Nonelawy DOgis. isis visti 

The Reasonableness Plan 

mein PD uy Ce PRIVEE MIRE 
      

  

CONCLUSION . . 

Cases: 

Alexender Y. . 0 

306 U.8. 15 069 14,18,20,22 

    

Brewer v. School Bo   

3rown v. Board of     

Brown v. Board of 
    

Carrington v. Rash,   

  Cato v. Parham, 302 

Cella v. United States, 308 F.2d 183 (7th Cir. 1953)      



  

- ii - 

Cases [Cont'd]: 
  

Dowell v. School Board of Oklahoma City, 244 F. Supp. 971 
(W.D. Okla. 1965), aff'd, 375 F.2d 158 {10th Cir. 1967), 
gert, dented, 387 U.8..93L {1067) sis vv viv a a Begh is 

  

  

Green v. County School Board of New Kent County, 

3010.8, 430 (1968)... 
    

Griffin v. County School Board, 377 U.S. 218 (1964). . .   

Harman v. Forssenius, 380 U.S. 528 (1965). . .   

Henry v. Clarksdale Municipal Separate School District, 
    

409 F.2d 682 (5th Cir. 1969), cert. denied, 396 U.S. 940 (1969) 
  

Kemp v. Beasley, No. 19072, p. 14 (Slip.Op.) 
(8th Civ, Werch 17, 3070) C0, oid ih 

Keyes v. School District No, 1. Denver. 303 F. Supp. 27° 
(D. Colo. 1969), stay pending appeal granted, F.28 

(10th Cir. No. 432-69, Aug. 27, 1969), gtay vacated, 
rr sus. 1215. £1969), .. ogy . 

    

  

  

Louisiana v. United States, 380 U.S. 145 (1968). . . 
    

. Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938) . . . 
  

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

391 U.S. 450 (1968) 
  

Ohio Bell Telephone Company v. Commissioner, 301 U.S. 292 (1937) 
    

oma v, Cotifomia. 232 U8. 633 {1o.8) L'. &   

Raney v. Board of Pducation, 391 U.8. 433 (19568) . . .     

Russell-Newman Manufacturing Company v. National Labor Relations     

Board, 370 F.2d 980 (5th Cir. 1967) 

Schlesinger v. Wisconsin, 270 U.S. 230 (1926).   

Spangler and United States v. Pasadena City Bd. of Ed., 

No. 68-1438-R (C.D. Calif. March 12, 1970). 
    

Sweatt v. Painter, 339 U.S. 629 (1950) . . . 

  

United States v. Baldwin County, No. 28880 (5th Cir., 
March 9, 1970). 

Page 

15 

4,34,18,20, 21 

18 

19 

15 

13,82 

13,22 

4, 20 

 



  

- iii - 

Cases [Cont'd]: Pag ® 

  

  

United States v. Greenwood Municipal Separate School District, 

405 728 3086 {oh Clr 13008) vi vi wa aid Cee whe a ett wi 
    

United States v. Jefferson County Board of Education, 

B72 FL20 836 {Sth Clv. ' JOBGYE o ails "vive iv sins. win 0 minh 
    

United States v. Montgomery County Board of Education, 

205 eB. 225 IBO0) iT de Ne eR EA 
    

  

United States v. School Distriet No. 15), Cook County, 

286 F. Supp. 785 ({N.D. 111. 1968), ‘aff'd 404 F.24 1125 
(7th Cir, 3968) vy ah ete Tk aie a eae ea ee W516 20 

Valley v. Rapides Parish School Board, 
No. 129277 {Suh Civ., Maveh 6, 1970) 5° io idl V0 LE iy 
  

Miscellaneous:   

U.S. Commission on Civil Rights, Racial Isolation in the   

  

Public Schools 106, 204 L10B7Y vu von ie hi ass wi vie inves 90 

 



IN THE 

SUPREME COURT OF THE UNITED STATES 

CTOBER TERM, 1969 

No, 1713 

JAMES E, SWANN, et al., Petitioners 

Vv. 

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

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE 

UNITED STATES COURT OF APPFALS FOR THE FOURTH CIRCUIT 

  

MOTION OF THE NATIONAL EDUCATION ASSOCIATION 
FOR LEAVE TO FILE BRIEF AMICUS CURTAE 

  

  

The National Education Association hereby moves, pursuant to 

Rule 42 of the Rules of the Supreme Court, for leave to file the at- 

tached brief amicus curiae in support of the petition for writ of cer- 
  

owann, et al., in 

the above-entitled cause, Consent to the filing of the brief has been 

sought from the petitioners and from the Charlotte-Mecklenburg Board of 

Education and members thereof, respondents, Petitioners have consented ,—L/ 

  

37 The written consent of the petitioners has been filed with the Clerk.  



  

No response has been received to date to the requests made of the 

Charlotte-Mecklenburg Board of Education anu the members of the Board. 

The National Education Association (hereinafter NEA) is an 

independent, voluntary organization of educators open to all profes- 

sional teachers, supervisors and administrators, It presently has 

over one million regular members, and is the largest professional or- 

ganization in the world, NFA was first organized in 1857 and was 

chartered by a special act of Congress in 1906. Its statutory purpose 

ie (3 Stat. B05) ww 

to elevate the character and advance the interests 
of the profession of teaching and to promote the 
cause of education in the United States, 

The overall policies of NEA are determined by its Representative Assem- 

bly, a body composed of approximately 7,000 delegates representing af- 

 filiated local and state education associations. 

NEA has conducted detailed studies of the educational impli- 

cations of the maintenance of dual school systems based upon race. It 

has long been committed to the principle that racial segregation in 

education adversely affects the quality of the education received by 

both black and white students. Reflecting this position, the Represen- 

tative Assembly at the June 1969 Convention adopted a formal continuing 

resolution providing, in part (NEA Handbook 1969-70, p. 66): 

The Association endorses the decision of the 
U.S. Supreme Court in Brown v. Board of Education 
and urges compliance with subsequent federal laws 

and regulations in this area . 

 



De 

On March 20, 1970, the Executive Committee of the Association adopted 

a more specifi resolution on desegregation in the public schools and 

recommended it to the Board of Directors ana the 1970 Representative 

Assembly: 

The NEA believes it is imperative that de-~ 
segregation of the nation's schools be effective, 

Policies and guideline statements for school de- 
segregation in all parts of the nation must be 
strengthened and must comply with Brown v. Board 
of Fducation and subsequent judicial decisions 
and with civil rights legislation and decisions. 

  

  

The Association recognizes that acceptable 
desegregation plans will include a variety of 
devices such as geographic realignment, pairing 

of schools, grade pairing and satellite schools, 
These arrangements often require that some stu- 

dents be bused in order to implement desegregation 
plans which comply with established guidelines 

adhering to the letter and spirit of the law, 

It has long been settled that complete disestablishment of 

formerly de jure segregated school systems is required by the Constitu- 

tion. This case presents to the court important issues concerning the 

meaning of a school board's responsibility to convert from a dual to a 

unitary school system and the steps which it may be required to take 

to accomplish that conversion, As the principal association of educa- 

tors in this country, NEA can draw upon a breadth of experience to in- 

form the court as to the reasonableness of the requirements for desegre- 

gation framed by the district court's order of February 5, 1970, when 

judged from the standpoint of educational considerations as well as the  



practices and expenditures of other school systems. Pursuant to 

leave granted by the court of appeals, NEA filed a brief amicus 

curiae in the proceedings below (see, e.g., 194a, 21la) and, upon 

invitation, presented oral argument ,—2/ 

Accordingly, the National Education Association respectfully 

requests that this Court grant leave to file the attached brief amicus 

curiae in support of the petition for a writ of certiorari to the 

Court of Appeals for the Fourth Circuit. 

Respectfully submitted, 

Stephen J, Pollak 
Richard M, Sharp 

734 Fifteenth Street, N,V. 
Washington, D, C. 20005 

Of Counsel: 

Shea & Gardner : David Rubin : 

'734 Fifteenth Street, N.V, 1201 Sixteenth Street, N.W. 
Washington, D. C. 20005 Washington, D. C. 20036 

Attorneys for Amicus Curiae 

National Fducation Associati ah phe dA NAN SAU U 

  

  

  

2/ The NEA and its State associations have participated as amicus 
curiae in other major proceedings involving issues of education and 
race, See Alexander v. Holmes County Board of Fducation, 396 U.S, 
19 (1969; Carter v. West Feliciana Parish School Board, No. 29745 
{5th Cir. 1970); Smuck v. Iobson, 408 F.24 175 (D.C. Cir. 1969); Lee 
v. Macon County Board of Fducation, 283 F. Supp. 194 (M.D. Ala. 1968). 

  

  

  

1 
. 

   



  

IN THE 

SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1969 

No. 1713 

JAMES E. SWANN, ET AL., PETITIONERS 

V. 

CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, or AL, RESPONDENTS 

  

BRIEF FOR THE NATIONAL EDUCATION ASSOCIATION 
AS AMICUS CURTAE 

TAN SITPPORT. OF TOR PRIDTIOTON FOR AN V¥WRTTD NF OTRPTARART TN 
“at WoL 4 la [EFS ig BE (TR ST SIR Ta ELT 0 CR RE WS PRE 1 dbl ob / 4 | ZT BPRS TR BR NN YW PO I LU 

0 

THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT 

  

  

INTEREST OF THE NATIONAL EDUCATION ASSOCIATION 

The National Education Association (hereinafter NEA) is an 

independent, voluntary organization of professional educators. It has 

over one million members, including teachers, supervisors, and adminis- 

trators. As stated in the Association Charter, its purpose is "to ele- 

vate the character and advance the interest of the profession of teachers 

and to promote the cause of education in the United States." Both the 

NEA and its members have a deep interest in the quality of education re- 

 



ceived by the children of all races. NEA endorses the decision of this 

Court in Browy v. Board of Fducation, 347 U.S. 483 (1954), and considers   

it imperative that desegregation of the nation's schools be complete and 

effective, In pursuit of these purposes NEA has recently conducted in- 

vestigations of the problems of race and education in the school systems 

of Wilcox County, Alabama; Baltimore, Maryland; some 22 counties in 

Louisiana; Detroit, Michigan; some 30 counties in Mississippi; Hyde 

County, North Carolina; and the region of Fast Texas, NEA has also par- 

ticipated in several school desegregation cases, including the appeal 

proceedings before the Fourth Circuit in the instant case, and in numer- 

ous others has actively supported efforts to secure judicial relief. 

 



STATEMENT 

A 1. Description of the Charlotte-lecklenburg School System. 
  

The Charlotte-Mecklenburg Schcol System is the forty-third largest in 

the United States, educating more than 84,500 pupils in 106 schools, 

including 76 elementary schools, 20 junior high schools, and 10 senior 

high schools. While the system covers the county's 550 square miles, 

over 50,000 of the students reside within the City of Charlotte. (Ap- 

pendix to Petition for Certiorari, pp. 9a-10a, 18a, 85a-86a, 1230. )—/ 

The 1969-70 budget was $57,711,344, of which nearly $51,000,000 repre- 

sented operational expenses (1392) .~2/ 

Of the 84,500 students, about 29 percent, or 24,714, are 

nnan+t 
A NY , OF 59 

21,000 of the system's 24,714 black students attend schools with- 

City of Charlotte (57a). The predominant percentage of the sys- 

tem's black students live in a triangular area, four or five miles on 

a side, in the northwestern quadrant of the city. This area is almost 

exclusively Negro. (la, 12a, l4a, l4Ra-144a.) 

2. History of Desegregation. The Charlotte-Mecklenburg Board 
  

of Educati s rat . dual system of schools based upon race (185a), 

A suit for desegregation was initiated in 1965 (la), and the district 

  

nv The Appendix will be cited hereinafter by page number only. 

5 
~2/ Expenditures for construction of school buildings are not included 
in these budget figures (139a).  



court ordered into effect a plan proposed by the School Board based 

upon geographic zoning with a free transfer provision which was ap- 

proved by the court of appeals (185a). In September 1968, following 

the decisions of this Court in Green v. County School Board of New Kent 
  

County, 391 U.S. 430 (1968), Raney v. Board of Education, 391 U.S. 433 
  

1268 and Monroe v. Board of Commissioners of the City of Jackson 
J EE al 3   

391 U.S. 450 (1968), the petitioners filed a motion for further relief 

which sought greater speed in desegregation and elimination of other 

racial inequities (la). Following a hearing, the district court con- 

cluded that the "manner in which the Board has located schools and 

operated the pupil assignment system has continued and in some situa- 

tions accentuated patterns of racial segregation in housing, school at- 

tendance, and community development! (28a); ; that the Board has created 

“or controlled school zones so as to promote segregation of black stu- 

dents (54a); and that the Board has an affirmative duty to promote facul- 

ty desegregation and desegregation of pupils, and to deal with the prob- 

lem of the all-black schools (29a), The district court ordered the 

Board to submit by May 15, 1969, a plan for complete desegregation of 

teachers to be effective with the 1969-70 school year, and for desegre- 

gation of pupils to be predominantly effective in the fall of 1969 and 

to be completed by the fall of 1970 (30a, 3la), 

Pursuant to this and subsequent orders of the district court, the 

Board submitted two plans, neither of which was considered adequate by the 

court (5la, 55a, 68a, 69a). On August 15, 1969, because of the shortness of  



time before the opening of school, the district court approved an 

interim plan for the 1969-70 school year ani directed the Board to 

present, on November 17, 1969, a plan for complete faculty and stu- 

dent desegregation for 1970-71 (70a-7la), The 1969-70 plan proposed 

to close seven black inner-city schools and to transfer their 3,000 

students to suburban schools, all but one of which were white (83a). 

It also proposed to transfer 1,245 black students from eight over- 

crowded black or predominantly black schools to white suburban schools 

(64a, 83a). The Board, however, did not carry out the plan (83a). 

Only 1,315 of the promised 4,245 black students were transferred to 

white schools (84a). 

The Board's November 17. 1969 plan was disapproved by the 

district court which found that "it contains no promise nor likelihood 

of desegregating the schools" (93a). Among other provisions, the plan 

provided that no white students would be assigned to schools with less 

than 60 percent whites; and that where schools were to be desegregated, 

the ratio of black to white students would not exceed 60 percent white 

--40 percent black (94a-95a). Seven all-black elementary schools were 

to remain that way (94a). 

The Sit court thereupon designated a consultant to pre- 

pare a desegregation plan in accordance with nineteen principles drawn 

from the decisions of this Court and the lower federal courts and set 

forth in the opinion and order (103a-108a). The court invited the 

Board to submit a further plan of its own (110-1112).  



wel 

  

3. The Desegregation Plan Ordered by the District Court on 
  

February 5, 1970. Reviewing the results of almost four and one-half 
  

years of court-ordered desegregation, the district court found in Nov- 

ember 1969 that the Charlotte-Mecklenburg schools "are still in major 

part segregated or 'dual' rather than desegregated or 'unitary'" (86a). 

"Of 24,714 Negro students, something above 8,500 ave attending 'white! 

schools or schools not readily identifiable by race"; 13,945 were still 

in 90-100 percent black schools ;—3/ and 9,216 of these were in 100 per- 

cent black schools, Of 59,828 white students, over 45,000 were attend- 

ing schools which were 86-100 percent white (85a-86a), Ninety-eight of 

the 106 schools in the System continued to be "readily and obviously 

identifiable by the race of the heavy majority of their faculties! 

(84a). 

The district court found that these student assignment patterns 

reflected the segregation of Mecklenburg County's residential areas (86a), 

This segregation, it said, "is the result of a varied group of elements 

of public and private action, all deriving their basic strength origi- 

nally from the public law or state or local RO action, These 

elements include among others the legal separation of the races in 

schools, school buses, public accommodations and housing; racial re- 

strictions in deeds to land; zoning ordinances; city planning; urban 

  

2 The court found that more than 16,000 black students were attending 
schools which were between 56 percent and 100 percent black (85a). 

 



  

renewal; location of public low rent housing; and the actions of the 

present Schoo! Board and others, before and since 1954, in locating 

and controlling the capacity of schools so that there would usually 

be black schools handy to black neighborhoods and white schools for 

white neighborhoods" (86a-87a; see also 12a-l4a). Based upon these 

findings, the district court ruled, "[tlhere is so much state action 

embedded in he shaping these events that the resulting segregation 

is not innocent or 'de facto,!' and the resulting schools are not 'uni- 

tary! or desegregated" (87a). 

Faced with these conditions, the district court, on February ’ P) oF 

5, 1970, framed a desegregation plan using, where it could, portions 

held that an acceptable plan would have to be consistent with sixteen 

requirements set forth in the order (1172). Some of the requirements 

were expressed in mandatory terms, such as number five wt ]hat no black 

school be operated with an all-black or predominantly black student 

body." Others, although framed as requirements, were drawn to allow 

leeway for practical considerations incident to the operation of the 

fo
m 

(D
 

m (D
 

=
 re
 cluded number six calling for the assi 

of pupils so that "as nearly as practicable the various schools at 

various grade levels have about the same proportion of black and white 

|] students," and number seven providing that transportation be offered 

on a uniform non-racial basis-to children who live farther from the 

school to which they are assigned "than the Board determines to be td 

walking distance." 

 



  

The district court then approved a Sesbivanstion plan in 

four separate parts, one each for the senior high schools, for the 

junior high schools, for 27 elementary schools for which new zones 

were defined, and for 34 elementary schools which were paired and 

assigned noncontiguous zones. For the senior high schools, the 

court approved a zoning plan submitted by the Board which integrated 

nine of the System's ten schools with percentages of black students 

ranging from 17 percent to 36 percent. The court ordered one modifi- 

cation: it vesuived that 300 pupils be transported from the black 

residential area of the city to the Independence School which would 

have been 2 percent black and under-capacity under the Board's plan 

(190a, 123a). 

The court disapproved the Board's rezoning plan for the 

junior high schools because it left the Piedmont School 90 percent 

black, and offered the Board various alternatives which would desegre- 

gate all the junior high schools, The Board chose to adopt the plan 

proposed by the court's consultant which combined zoning and satel-~ 

lite districts and which left the junior high schools from 9 percent 

to 33 percent black (125a, 190a-19la). 

The Board's plan for the elementary schools was based en- 

tirely upon zoning. It would have left more than half the black ele- 

mentary pupils in nine schools 86 to 100 percent black and would have 

assigned about one-half the white elementary pupils to schools 86 to 

100 percent white (191a). Rejecting that proposal, the court adopted 

 



  

plan offered by its consultant which drew new zones for 27 schools 

and paired 34 others, each of which was assigned noncontiguous zones. 

Approximately 22,400 of the 44,000 elementary pupils would attend the 

paired schools, 10 of which are in the city and 24 of which are out- 

lying suburban white schools, Children in grades 1-4 from the zones 

surrounding all 34 schocls would attend the 24 suburban schools, 

while those in grades 5-6 would attend the 10 city schools (133a). 

The racial make-up of the elementary schools would vary from 3 percent 

to 41 percent black (129a-131a). 

Under the court-approved plan, no schools would remain all- 

black or predominantly black, The pairing and grouping of schools, 

as well as rezoning provided for in the plan, would, the court found, 

add a maximum of 13,300 children who "may conceivably require trans- 

"portation" to the 23,600 pupils transported daily on school buses and 

the 5,000 whose fares on public coach lines are paid by the Board (138a, 

155a). Of these 13,300 children, 1,500 would be at senior high level, 

2,500 at junior high, and 9,300 at elementary school level (155a). 

One hundred thirty-eight additional buses would be required, 90 for 

the elementary students (155a). The cost of implementing the plan 

would be $266,000 for bus operations ($186,000 of this for the elemen~ 

tary school phase) and a one-time expenditure of $745,200 for additional 

buses ($486,000 for the elementary phase) (156a-157a, 182a, 1908, wil 

  

~4/ The district court did not consider the plan immutable, It stated 
that "the duty imposed by the law and by this order is the desegregation 

~ (continued on page 8) 

 



  

4. The Decision of the Court of Appeals. The court of ap- 

peals, by a vote of four to two, vacated the district court's judgment ,—/ 

The eonrl carefully analyzed and specifically accepted the district 

court's finding "that residential patterns leading to segregation in 

the schools resulted in part from federal, state, and local governmen- 

+81 sction® (186s). Ii connliuted that "[plredominantly black schools 

were the inevitable oT of the School Board's policy of locating 

schools and fixing their size to fit these segregated residential pat- 

terns (186a). The court of appeals recognized that this condition was 

not unique to Charlotte; that "[s]imilar segregation occurs in many 

other cities throughout the nation, and constitutional principles deal- 

ing with it should be applied nationally" (188a). 

  

A (continued) of schools and the maintenance of that condition. The 
plans discussed in this order, whether prepared by Board and staff or 
by outside consultants, . . . are illustrations of means or partial 
  

  

1 

means to that end. [Footnote omitted The defendants are encouraged 
es to use their full 'know how! and resources to attain the results above 

described, and thus to achieve the constitutional end by any means at 
their disposal, The test 1s not the method or the plan, but the re- 
sults." The court stated its intention "to leave maximum discretion in 
the Board to choose methods that will accomplish the required result." 
(118a-11%a, 121a.) 

ir Chief Judge Haynsworth and Judge Boreman concurred in an opinion 

of Judge Butzner. Judge Bryan wrote a separate opinion dissenting in 
part but joined in voting to vacate the judgment of the district court 
in accordance with the opinion of Judge Butzner "for the sake of creat- 
ing a clear majority for the decision Es remand" (226a). Judges Sobe- 
loff and Winter concurred in part and dissented in part (20la). Judge 
Craven disqualified himself (184a).  



which it would apply to resolve the issues in the case: "first, not 

every school in a unitary school system need be integrated; second, 

nevertheless, school boards must use all reasonable means to inte- 

grate the schools in their jurisdiction; and third, if black residen- 

tial areas are so large that not all schools can be integrated by 

using reasonable means, school boards must take further steps to as- 

sure that pupils are not excluded from integrated schools on the basis 

of race! (1892) .~&/ It held bussing to be "a permissible tool for 

achieving integration," but declared that "[i]n determining who should 

be bussed and where they should be bussed, a school board should take 

into consideration the age of the pupils, the distance and time re- 

quired for transportation, the effect on traffic, and the cost in rela- 

“tion to the board!s resources" (194a). 

Applying these principles, the court of appeals approved the 

desegregation plan for junior and senior high schools, holding that 

"it provides a reasonable way of eliminating all segregation in these 

schools" (195a). The appellate court also affirmed the district court's 

disapproval of the School Board's elementary plan because it left about 

  

£/ The court identified such "further steps" to include special 
classes, functions and programs on an integrated basis to be made avail- 
able to pupils in the black schools, majority to minority transfers 
with transportation provided, and assignment to an integrated school 
for a later portion of a black student's career (189a).  



  

ny 

one-half of both black and white pupils in schools that were nearly 

completely segregated (1978) .—2/ However, the court of appeals found 

the elementary plan approved by the district court unacceptable, 

holding that "[t]he board . . . should not be required to undertake 

such extensive additional bussing to discharge its obligation to create 

a unitary school system! (1982) .-8/ 

  

ed The court of appeals also approved the provisions of the district 
i rig / aa 

gn 
~~ RIG peta. RE (ICE J 1 frail dd ry Ci 25 o court's order deali neg. wiltil r1acuyiiies ©28 ), 

-&/ The court's use of the phrase "such extensive additional bussing! 
followed a recitation of the following facts: the plan would require 
transporting 9,300 pupils in 90 additional buses; the greatest portion 
would involve cross-bussing; the average daily round trip would approxi- 
mate 15 miles through central city and suburban traffic; the additional 
elementary pupils would represent an increase of 39 percent over all 
pupils presently being bussed and would require an increase of about 30 
percent in the present fleet of buses; and, when added to the additional bussing required under the junior and senior high plans, the total per- centage increases would be: pupils, 56 percent; and buses, 49 percent 
(198a). 

 



  

oy i 

REASONS FOR GRANTING THE WRIT 

1. “Iotroduction, The decision of the Coury of Appeals for   

the Fourth Circuit presents two issues of fundamental importance to the 

future course of school desegregation, The first issue is whether a 

school board, in fulfilling its obligations to establish a unitary 

system, must disestablish the identity of all "black" and "white" 

schools by reassigning students, and providing transportation where 

necessary, even though this will require the board to bear financial 
9/ 

and other burdens, The = issue, which arises only if this Court oD
 Qo OQ S o,
 

J 

should conclude that the constitutional obligation to establish a 

unitary system may be circumscribed by the costs and other burdens its 

ful fi1Tment would require a school board to assume; ig what standards 

school boards and district courts should apply in framing an acceptable 

desegregation plan, 

the court itself recognized (186a-187a), the duty of vir- 

tually every school board with responsibility for an urbanized area 

of any size will hinge upon the resolution of these issues. Undoubtedly 

the principle announced by the Fourth Circuit, if allowed to stand, too, 

  

_9/ As we show infra, pp. 16-17, the true basis of the conclusion of 

the court of appeals that os elementary school plan was unreasonable had 
to be the financial cost entailed in purchasing and operating the <0 

additional buses required to Hani the 9,300 additional children 

required to be bussed, The sonableness of the plan judged upon 

the basis of the other measures referred to by the court of appeals--age 

of pupils, time and dista ance required for transportation and effect on 
this record. 

J 

traffic--appears clear on Hx 

 



17 

  

would significantly influence the future course of desegregation of rural 

11.19/ Thus, the case is truly one of national significance 

2. Tie Duty to Disestablish Racially Tdentifiable Schools The r— Arle A A       

court of appeals quite properly affirmed the district court's conclusion 

that the predominantly black schools in the Charlotte-Mecklenburg system 

are the "inevitable result" of state action (186a).1L/ Having so ruled, the 

primary question, then, was whether, under the Equal Protection Clause of 

the Fourteenth Amendment, the School Board was required to reassign students 

so as to disestablish the racial identity of these schools, 

Until this case, it was recognized that the constitutional duty of 

a school board under such circumstances was to terminate all vestiges of its 

dual system "at once and to operate now and hereafter only unitary schools." 

Alexander v. Holmes County Board of Education, 396 U.S. 19,20 (1969). And 
  

a unitary school system had been understood to be one without schools which 

.are racially identifiable by reason of their student bodies, Green v. County \   

School Board of New Kent County, 391 U.S, 430 (1968), or their faculties, Uni- 
  

ted States w. Montgomery County Board of Fducation, 395 U,S8.225 1969). A num- 
    

ber of other lower courts,including the Fourth Circuit itself, have interpreted 

these rulings to bar neighborhood student assignment plans which freeze 

  

10/ The considerations on which the duty to disestablish the racial iden- 

tity of predominantly black schools would depend--cost, for example--(see 
discussion, infra, pp.16-17 ) are not unique to urban systems. History 
teaches that rural systems would urge them as grounds for relief from the 

constitutional mandate to operate unitary schools, Indeed, the court of ap- 
peals suggested that the constitutional principles "should be applied na- 
tionally" wherever segregation exists because government policies foster 

. segregated neighborhood schools (188a). 

z/ The findings of the district court and their affirmance by the court 
of appeals are set forth in the Statement, supra, pp. 6-7, 10, 

 



in the effects of residential segregati 

This was the conclusion of the di 

acceptable desegregation plan must pr 

operated 

116s), of Yebruavy 5, 1970; 

3. 

atnt at 
stric (¥ 

The Irrelevance of Monetary 

on 

12/ 
resulting from state action. 

court which held that an 

"(+t That no school be 

with an all-black or predominantly black student bodv" (Crder p . \ 

ENG 
UO UO Like the district cours, 

  

the court of appeals recogn 

However, it held that 

not all the schools can be integra 

school board may leav 

correctly recognized that "bu 

integration" (194a). Kemp v. Beasl 

  

- 

Fumio 

Henry v. Cle 
  

ized the ob] 

ted 

where "black resid 

Hh y & 
[8 J 

permi 

igation of the =r 

ential ar 

using 

School Board +o re-~ 

are so large that 

reasonable means," the 

ed 

The court, we believe 

ssible tool for achieving 

« 19782, pv. 14 (Slip Op.) {Eth 

rich, 409 F.24 682,   

2 1] 
(5th Cir. 1969), ce 
Greenwood Munic Po SC] 

Valley wv. Rapides Parish ¢ St a 
United St v. Baldwi ounty No 
Kemp Beasley, No. 
School Dist, 151, 286 F, 
1123 {7th cir, 1968); Dowell 

  

      

  

tates 

v. Beasley, 
  

  

786, 
Vv, Schoo 

Supp.   

bJ 

4 

a. Sa. 

. United tates v. 
20 086, 1093 (5th C mr, 

Wo 1 St Cir., March 6. 
80 (5th Cir. March 9, 1970) ; 

17, 1970); United 
Tl), 1968), affid, 

of hon CLLy 

a. tes [a] 

404 7.24 
244 °F, San 

St LE, 
  

  

971 (W.D. Okla. 1965), affd, 

387 U.S. 931 (1967 JE Spangler 

ay Wy LY upp . 

cert. 

City Bd 
denied, 

of 

  

(10th Cir. 1967), 

Pasadena 
    Ed., No, 68-1438-F (C.D, Calif. 

NO. 1. Devwer, 303 7. 
granted, IF, 2d 

vacated, 396 1215; see 
In Brewer 

ic 
Supp. 279, 
{xo Cir. 

  

Vv . Bo ar ra 

\ ~~" 

Tn Aa 

ar 1 Cit 

      
270); Keyes v. 

Colo. 1969), 
27, 

school District 

S gi ay pen 

A 
  

> 

rk, 

  

Sch 22 1 

1968), the court of appe 
that the residentia patter ns 
"The school board cannot build 
private racial discrimination." 

als 5 
are 

the court 

duty are 

13/ The steps indic 
constitutional set 

ated 

forth, 

went 

the 

supra, 

on, 
the result of private einai oud 

its exclusionary attendance areas upon 

Board 

é¢ 37, 41 
saying i hg is immateri 

might teke to sati 
Pell, n.6, 

sfy its  



  

hy 0 

Cir., March 17, 1970); United States v. Jefferson County Board of Fducation, med 
      

  

372 F.2d 836, £98 (5th Cir. 1966); United Stites v. School District No, 15°, 

Cook County, 286 F. Supp. 786, 79° (W.D. 111, 1968), aff'd, 404 F240 
  

1125 (7th Cir. 1968). It said, however, that in determining the part 

bussing mey reasonably play in a unitary school system "a school board 

should take into consideration the age of the pupils, the distance and 
J 

time required for transpertation, the effect on traffic, and the cost 

in relation to the board's resources" (194a). 

Viewing the plan for junior and senior high schools against 

these principles and the background of national, state and local 

transportation policies, the court found "it provides a reasonable way 

PSE - - i: he | re | py ~ IW, TT DE J. Bh Sy . ~ ke I a 

SLAIe CINE gu) BEefgTErat Od 10 these BCa0u.L 3 

plan. As we now show, a review of the plan against the five measures the 

court said should be taken into consideration compels the conclusion that 

the plan was rejected because the court of appeals found the financial 

cost of the bussing tynreasonable, "14/ 

  

1 
- At the most, the elementary school plan would have entailed an an- 
nual expenditure of $186,000 to operate the buses plus a one-time invest- 
ment of $486,000 for the 90 additional buses (191a). In aggregate, the 

first-year expense would be just slightly above one percent of the system's 
annual budget (1392). From this there should be subtracted the value of 

the improvement in the education available to black children which is 
significant, although not easily quantifiable in dollars, 

 



XV 

Thus, with respect to the measures of time, 

raffic, the district court found that the children required to be 

"will not as a group tra y. far, nor will 

lence more inconvenience than the more than 28,000 children 

are already being transported. . ." (1l43a), end this finding was 

disturbed by the court of appeals. The average one-way bus trip per 

elementary pupil would be seven miles (15 compared to average of 

between 15 and 17 miles per child in the 

12 to 13 miles under the plan for senior high pupils (195a). The average 
1% 
\ 

time would be 35 minutes as against nearly an hour and a quarter today 

per child in the system (153a). 

Insofar as the age of the pupils to be bussed is concerned, 

court found that the plan would require bussing of au 

additional 9,300 elementary students, This figure is just under 70 

st of the 13,300 additional students of all ages required 

bussed by the plan. Statewide in North Carolinas 

pupils bussed are elementary students (127a) 

Thus, the reasonable inference is that cost alone was the basis 

for the conclusion of the court of appeals tha- he elementary plan was : Pp 

jection of the plan is 

confirmed by the court's statement that tlhe boar + + Bhould not be 

required to undertake such extensive additional bussing . . ."(198a). 

The court of appeals has thus announced a new constitutional 

principle governing school desegregation: that the duty to disestablish 

all racially identifiable schools is a conditional one depending upon the  



i 

financial costs involved, This principle conflicts with the well considered 

of this Court which establish that "[t he obligation of every schcol 

el 
4 to serminate dual school systems 

Board of V 
rma I a ereafter only unitary schools." Alexander v, 

266 4.8. 19, In Green v. County School Board, 391 
    

430, 442 (1968), the Court, adopting the language of the Court of Ap- 

peals for the Fifth Circuit, defined a unitary system as "a system without 

a 'white! school and a !'Negro! school, but just schools." 

To date, this Court has never held, or even suggested, that this 

constitutional mandate may be avoided by a showing that performance would 

entail monetary costs. In Green, this Court held that the school board 

was under an Na fPirmative duty to take whs steps might be necessary 
  

ft +A AAvirraat A A 17 \ 7 + A 2 
vv uv ‘ Cy w oll, 2 LCA A AV 

a1 IIo yo A cnr acetic 
wi | 

~ ~~ 
Ue P 3 ip ( \CIIPAG E10 (5 

There was no suggestion that a "unitary system" was not a fixed goal ex- 

tablished by the Constitution, Inde le WOIC nosen by the Court in- 

dicated that a unitary system is one "in which racial discrimination would 

be eliminated root and branch.” at 437-38, der t lecigion of 

the court of appeals, the constitutional objective, the unitary system, 

would vary according to the cost of the steps available to the school board. 

  

15 

  

See Griffin v. County School Board, 377 U.S. 218 (19 64), where this 
Court held that a school board may be dared to spend Wi tever is neces- 
sary to afford the pupils in its Ain sd qesegresa ted education equal 
to that being afforded pupils in other systems - throughout the State,  



  

wo ¥ 

10 

The interpretation given the Constitu:ion by the court of 

appeals cannot withstand analysis: Thus, no State could be heard to justify 

a denial of a jury trial or due process of law on the grounds that fulfillment 

-} these rights costs too much, The right to equal protection of the laws 

stands on the same footing. Thus, "[t]lhe State is forbidden to deny due 
4 

. 

process of law or the equal protection of the laws for any purpose whatsoever," 

    Schlesinger v. Wisconsin, 270 U.S. 230, 240, (1926). Certainly factors such 

as "convenience and saneleney” do not exempt the State or other governmental 

ements of the Fourteenth Amendment. Ohio Bell   agencies from the requir 

Telephone Company v. Commissioner, 301 U.S. 292, 305 (1937); Russell-Newman   
  

  

2 (0
 

( turing Company v, National labor Relations Board, 370 F.2d 950, 984, : 3 ; 5a . ; p Ls 
  

  (5th Cir. 1967); Cella v. United States, 208 F.2d 183, 789 (7th Cir, 

1953). The right to equal protection, moreover, is a right personal to each 

individual. Sweatt v. Painter, 339 U.S. 629, 635 (1950); Missouri ex rel,   

Gaines v. Canada, 305 U.S. 337, 351 (1958). A black child assigned to a black 
  

school such as Double Oaks or Lincoln Heights (126a, 127a) is afforded little 

37/ 

consolation--and no vindication of his "personal and present" constitutional 

4 A 

right--by the fact that the Board is affording other students an integrated 

education, 

  

z LE . Es ita i a - , . . . : - 16 The ruling of the court of appeals also seems inconsistent with the well 
recognized rule that states may not casually deprive a class of individuals of a 

    

      
   

  

constitutional right because of some remote administrative benefit to the state, 

Jarman v. Forssenius, 380 U.S. 528, 542-44 (1965) (requirement of a certificate of 
residence as a precondition to voting); Carrington v. Rash, 380 U.S. 89, 96 (1965) 
(servicemen permitted to vote only in the county of residence at the time of entry 
into service); Oyama v. California, 332 U.S. 633, 646-47 (1948). 

17/- Sweatt v. Paint 

  

   



The court below suggested that where costs of bussing warrant, certain 

"other steps"--the offering of special integrated classe freedom of transfer 

with transportation, and an integrated school assignment later on-~may be sub- 

stituted for the elimination of predomi ently black schools, The decisions 

of this Court in Green v. County School Board, 
  

  

the City of Jackson, 391 
  

constitutional inadequacy of these alternatives. 

disapproved freedom hoice freedom of 

Negro students in all-black schools and placed upon them the bur 

a desegregated experience. 

m + nm er ZR RC, 13 POT Sl (E eI Ae LT ry og . To Poo Loonie A33ighmeny Or pla Sluge S LO a deseg regated school CgI 

ater "portion of their school careers! is merely to hold out the hope Co 

of a morsel of desegregation and to ignore the rule that token des egregation ga 5S 

to comply with the constitutional requirement. During their elementary sc 

years these black students would be "effectivel iy excluded" from desegregated 

  

  

schools because of their race, Alexander v. Holmes County Board of Education, 

96 U.S. 19, 20 (1969). Beyond these constitutional considerations, the 

unreasonableness of such an alternative is shown by the fact that maximum 

benefits from desegregated education come only if pupils are assigned to 

integrated schools at an early age. U.S, Commission on Civil Rights 

Racial Isolation in the Public Schools 106, 20/4    



4. The Reasonableness of the Digtrict Court's Plan for     

A Desegregation of the Elementary Schools. NEA believes that the Court should     

in Green that the school oard is under an 

i 
Le necessary 10 convert tc a unitary syst 

437-438; and that it should reject the suggestion that the duty to 

separate schools based upon race may be avoided because its 

fulfillment will cost money. Such a ruling would dispose of this 

However, if the court should accept the rule framed 

of appeals, a significa issue would still remain: the court of appeals 

purported to apply a "rule of reason," but it did not indicate the standard 

it applied in reaching the judgment that the "undertakings" incident to the 

plans for desegregation of the senior and Junior high schools were reasonable 

but vhiocse required for the elementary schools were nol, In essence, 

court struck down the elementary school plan because of the "extensive 

additional bussing" (198a) it would require, but failed to indicate the 

criteria it applied in determining how much bussing was too much--and why 

School boards and lower federal c 3 are left at large by the appellate 

court's ruling. The vast discretion inherent in the rule is an open invitation 

to circumvent the constitutional right of black children to equal educational 

  

91.5 29 (1955), it has been 
  

18 / Since Brown v. Board of Education, ir 
recognized that the district invested with broad powers to frame 
relief from racial ion in the public schools, Indeed, the Court 
has declared that the district court not only has the "power" but in fact 
"the duty to render a decree which will so far as possible eli janie the 
discriminatory effects of the past as well as bar like discrimins 1 in the 
future.  loulsisns v, United States, 380 U.8, 145, 154 62), gnole in 
Green, supra, at 438 n.4 In our view, the district court properly fulfilled 
this duty and did not abuse its discretion in framing the elementary school’ 
plan, 

courts ar 

at] 

   



® on » 
" . . . 1. . . . L . 

Ppportunity--an invitation which the 16-year history since Brown demonstrates is 
19¢ 

all too likely to receive wide acceptance. 

a 

CONCLUSION 

From Brown to Alexander, the quastion was one of "all deliberate soee   

timing of transition from separate to equal schools, This case presents 

question whether, now that the Court has declared the transition period closed, 

the constitutional objective itself is to be realized, If the decision below 

is allowed to stand, it acasts a host of separate black schools in every urban 

community which, for the forseeable future, will be impregnable to constitutional 

attack, 

NEA urges the Court to grant the petition for a writ of certiorari 

1.0 filed in behalf of James E., Swann, et al., and to establish an expedited schedule 

for briefs and argument which will permit a decision at the earliest practicable 

time, 

Respectfully submitted, 

Stephen J. Pollak 
Richard M. Sharp 

734 Fifteenth Sireet, N. W. 
Washington, D. C. 20005 

Of Counsel: 

Shea & Gardner David Rubin 
73/4 Fifteenth Street, NV. 1201 Sixteenth Street, NV. 
Washington, D.C. 20005 Washington, D.C. 20036 

Attorneys for Amicus Curiae 
National Education Association 
  

  

  

22/ The decisions In Kemp v. Beasley, No, 19072 (8th Cir. March 17, 1970); 
United States v. hool District No, 1g * Cook County, 286 F. Supp. 786 
{N.D. 11%.) aff'd, +04 7.24 1125 (Hn Cir, 1068); Spangler and United 
States v. Pasadena City Board of Education, Civ. No. 68-1438 (M.D. Calif. 
March 12, 1970); and Keyes Vv. School District No... Denver 302% BR, Supp, 27S 
{D, Colo, 1969), F.2 d___ (10th Cir. No. 432-69, August 27, 1969), 306 U.S. 
1215 (1969), indicate - that, with the increasing focus on integration of urban 
schools, the need to make bussing a part of such plans will be increasingly at 
issue, Paradoxically, while the appellate court's decision creates 

for the exercise of discretion to limit desegregation, it severely, 

believes unwarrantedly, restricts the traditional discretion of the di 
court to frame a plan which will secure the constitutional objective. Revien 
now by this Sours ‘will insure that no such unwarranted restriction survives, 

  
  

  

  

   



ERTIFICATE OF SERVICE 

The undersigned hereby certifies that he has this day served 

copies of the foregoing Motion for leave to File Brief Amicus Curise     

and the accompanying Brief upon counsel in this case by depositing 

e United States mail, postage prepaid, addressed 

Brock Barkley, Esq. 

Taw Building 
Charlotte, North Carolina 

Pliny Le lm, Esq. 

Ss igh Forth Carolina 

Gaston H, & 
Crier, Parker, Poe, Thompson, 

Bernstein, Gage and Preston 

1014 Law Building 
PY. 2 as” nds 8 7% om TE 

Cig Louie P) Ne Big LLL La l'OL L110 

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

James H, Carson, Jr., Esq. 

law Building 

Charlotte, North Carolina 

Benjamin S. Horack, Esq. 
806 Fast Trade Street 
Charlotte, North Carolina 

Whiteford S. Blakeney, Esq. 
North Carolina National Bank Building 
Charlotte, North Carolina 

Villiam H. Booe, Esq. 
Law Building 

Charlotte, North Carolina  



  

A iv he 7 

Conrad O, Pearson, Esq. 
203-1/2 Fast Chapel Hill Street 
Durham, North Caro’ina 

L. Lovo Chambers, Esq. 
Adam Stein, Esq. 

Chambers, dis n, Ferguson & lansing 
216 West Ter Street 
Charlotte i Carolina 

Jack Greenberg, Esq. 
James M, Nabrit, III, Esq. 
Norman Chachkin, Faq. 
10 Columbus Circle 
New York, New York 

Erwin Griswold, Esq. 

Solicitor General of the United States 
Department of Justice 

Washington, D. C. 

Jerris Leonard, Esq. 
Assistant Attorney General 
Civil Rights Division 
United States Department of Justice 

Washington, D. C. 

    

Attorney for National Education 
Association, Amicus Curise [||933c84c5-ce86-4198-8522-055585de9fef||]