Plaintiffs' Response to Application for Stay

     [||5c4d3e5f-3920-4568-8d07-97f0cd3ad45a||] IN THE 

UNITED STATES COURT OF APPEALS 

POR. THE FOURTH CIRCUIT 

NO. .¥   

  

JAMES E. SWANN, et al., 

Plaintiffs Appellees, 

Vv. 

CHARLOTTE-MECKLENBURG BOARD OF 

EDUCATION, et al., 

and 

HONORABLE ROBERT W. SCOTT, Governor 

Of the State of North Carolina, etc al., 

Additional Parties 

. Defendants Appellants. 

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PLAINTIFFS' RESPONSE TO 

APPLICATION FOR STAY 
  

  

Statement 
  

This action was instituted by plaintiffs on January 19, 1965, 

seeking an order enjoining the racially discriminatory practices 

of the Charlotte-Mecklenburg Board of Education. The matter was 

initially heard by the Honorable J. Braxton Craven, Jr., now a 

member of this Court. On July 14, 1965, Judge Craven entered an 

order approving with some modifications a plan for desegregation 

as submitted by the Board of Education. The matter was appealed 

to thig Court and was affirmed by this Court. 359 7.24 29. The 

  

 



  

plan as then approved provided for geographic assignment of pupilsd, 

with freedom of choice, permitting students to transfer to other 

schools after initial assignment. The plan also directed the 

Board to employ and assign teachers and school personnel without . 

consideration of race. 

On September 6, 1968, plaintiffs moved the Court for further 

relief on the basis of Green v. County School Board of New Kent 
  

County, 391 U.S. 430, which reiterated the affirmative obligation 

of school officials to take whatever steps are necessary to 

disestablish segregated school systems. The District Court found 

in its initial order on April 23, 1969, that the Charlotte- 

Mecklenburg School System was still largely segregated and directed 

the School Board to submit a plan on or before May 15, 1969, for 

the desegregation of students and teachers in the system. On 

three separate occasions, the School Board simply refused to 

comply with the orders of the Court and finally advised the Court 

that it did not feel it had any obligation to go further with 

steps to eliminate the remaining segregated schools. Faced 

with this open defiance, the District Court on December 1, 1970, 

sought the assistance of an educational consultant in preparing 

a plan to comply with the constitutional mandates of the Supreme 

Court. Even in its December order, however, the Court again 

invited the School Board to reconsider its position and submit 

a plan as it had directed in April of 1969. 

On February 5, 1969, the Court ordered implementation of a 

plan which embodied parts of a plan prepared by the Board of       
 



  
    

sducation and of the plan prepared by the Court consultant. This 

plan provides for the alteration of some school attendance zones 

and the pairing of some schools. Some school attendance areas 

remain unchanged. The Court further directed that the School 

Board provide transportation for those students who are reassigned 

under the Court's order for the purpose of promoting further 

integration of students. 

In attempting to evade the February 5, 1970 order of the 

District Court, as it had previously done with respect to the 

previous orders of the Court, the School Board has publicly sought 

to promote opposition to the Court's order by contending that the 

Court has ordered massive transporting of students over extended 

areas at excessive cost. The Board further contends here that 

the order imposes impossible conditions which it cannot meet. 

In the preparation of the plan finally approved by the 

Court, the Court consultant worked closely with the administrative 

staff of the School Board. In fact, the final proposal presented 

by the Court consultant was drafted by the administrative staff 

as one which could be implemented during the 1969-70 school year. 

Rather than seeking to prepare for implementation of the 

Court's order, the School Board has set about to attempt to 

establish its inability to comply. The School Board has publicly 

and before this Court contended that it must purchase 526 buses 

at a Sri of more than $4,500,000.00 to transport 23,000 addition- 

al students which it contends the Court order directs. Despite 

the affidavit of Mr. J. D. Morgan, attached to the Application 

  

 



  

For Stay, Mr. Morgan in deposition admitted that he had not 

considered different methods for transporting students; that in 

{| fact, if he routed buses differently, at least one-half of the 

526 buses and of the alleged capital outlay would not be required. 

See pages .15-17 of deposition of Mr. J. D. Morgan taken on 

February 25, 1970. As» further indication of the patent mis- 

representation of the School Board, the School Board contends 

that it must now transport an additional 23,000 students. The 

Court order provides for transporting only those students assigned 

more than walking distance to promote integration. The record 

clearly establishes that this figure will be only 10,000 students] 

The School Board has added 13,000 more students who are not 

now provided transportation and who are not required to be trans- 

ported by the order of the Court. Moreover, the School Board 

alleges that millions of dollars will be required to provide 

transporation when the evidence clearly indicates otherwise. The 

exaggerated figures of cost for complying with the Court's order 

is clearly designed to attempt to show that the Board is unable 

to comply with the order. The Board presently transports 23,000 

students daily at an average annual cost of $20.00 per pupil. 

In July, 1969, the Board proposed to transport 4,500 Black students 

under the same conditions as directed by the District Court here 

and secured funds of $185,000.00 for that purpose. Only 746 

of the students are now being transported. The Board simply 

has not explored other avenues for determining the availability 

of any funds which might be necessary to comply with the Court's       
 



  
    

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order. In fact, it is not-clear that any additional funds not al-} 

ready budgeted will be necessary since the Board has not actually 

considered the number of students involved and all avenues for pro; 

viding transportation for students as directed by the February 5, 

1970 order. 

The Board contends that it will not be able to secure the 
. 

necessary buses in order to comply with the Court's order, even if 

buses were avallable., As found by the Court, it is not clear that 

additional buses will be required or that the buses now available 

with the State Board of Education would not satisfy whatever 

additional buses might be required. 

The District Court has carefully considered and reviewed the 

evidence and the law in this case. Despite the recalcitrance and 

contemptuous conduct of the Board throughout the proceeding, the 

District Court has tried to fashion a decree which was practicable) 

fair and in compliance with the Constitution. The District Court 

has considered all of the contentions of the Board, including 

those advanced here that the order imposed impossible conditions 

and has rejected them. Over the objections of the plaintiffs 

and only with the assurance of the Superintendent that the plan 

and timetable were feasible, the District Court delayed implemen- 

tation of the plan for the elementary school phase until April 1, 

1970 and for the junior and senior high schools phase until May 4, 

1370, 

Pending now before the District Court is a motion by plain- 

tiffs to find the School Board and the Superintendent in contempt 

of the Court's order because of their failure to carry out the 

orders of this Court. On February 27, 1970, the School Board 

  

il At the hearing on November 5, 1970, Mr. J. D. Dark, Director of 

the Division of Transportation of the State Board of Education, 
a defendant in the case, testified that the State had in excess of} 

400 buses on hand, 75 of which his office was willing to allocate 
immediately to the Charlotte system. TE 

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voted to ignore the District Court's order and to comply with 

the State Court's restraining order which sought to enjoin 

implementation of the District Court's February 5, 1970 order. 

The record here clearly establishes a segregated school . 

system created and perpetuated by the School Board. The record 

further establishes that the plan directed by the District Court 

can feasibly be implemented within the time directed. 

  

 



  
    

Reasons for Denying Stay 
  

The District Judge properly rejected the School Board's 

application for a stay pending appeal so that desegregation of 

  the district might proceed pendente lite. Jhis is in accord with 

the decisions of the Supreme Court that school districts are ob- 

ligated to "terminate dual school systems at once and to operate 

now and hereafter only unitary schools." Alexander v. Holmes   

County Board of ¥Fducation, 306 U. 8.19 (1969); Dowell v. Board 
  

  

  of Bducation, U.S. y 24 L.ed 28 414 (1969); Carter v., West   

Feliciana Parish School Board, 0. SS. 7-24 Led 28 382 
a   

(1970). This Court, applying Alexander, said "Further delays will 
  

not be tolerated in this Circuit," Nesbit v. Statesville City 
  

  Board of Bducation, 418 7.28 1040 (4th Cir. 1969).° See also 

Stanley v. Darlington County School District, F.2¢ = (4th 
  

Cir, 21070), 

Carter was not new law. The Supreme Court had repeatedly held 

that delays in implementing the constitutional right of Negro 

children to a desegregated public school education are "no longer 

tolerable" after fifteen years of evasion and delay since Brown Vv.   

Board of Education, 349 U. 8. 294 (1955). See Green v. County     

School Board, 3%1 U. 8S. 430, 438 (1968); Watson v. Memphis, 373 U.     

S$..573, 579 (1963); Bradley v. School Board, 382.0. S. 103 (1965); 
  

Rogers v, Paul, 382 U. 8S. 198 (1965); Griffin v. County School 
    

Board, 377 U. 8. 215, 234 (1864); Goss v. Board of Pducation, 373 
  

U. S. 683, 689 (1963). The District Judge performed his duty 

under the Green case by formulating a plan of desegregation which 

is designed to actually accomplish desegregation of the school 

system. This process required numerous hearings and involved the 

ART of many months. When the District Judge finally formu- 

lated an ELLA A plan for the desegregation of the system with 

the aid of a consultant designated by the Court (after the Court 

had on numerous occasions rejected School Board proposals as 

Tet   
 



  
    

to inadequate), it was the obligation of the District Judge to put 

the desegregation plan into effect without delay. The Trial 

Judge, over plaintiffs objections, actually has deferred implemen- 

tation of the plan for several weeks to enable the school system 

to make plans for the change, but has corréctly refused to stay 

the order pending appeal. 

The decision below refusing a stay is not only consistent 

with and compelled by the Supreme Court's most recent decisions 

requiring immediate desegregation. Alexander, Dowell and Carter,   

supra, but the decision denying a stay is in accord with fifteen 

years of precedents during which time the Supreme Court and the 

individual justices of the Court in Chambers have uniformly 

refused to issue stays so as to Zatnl implementation of lower 

court orders requiring that school desegregation proceed, and have 

frequently overturned stays issued by lower courts. A stay in 

this case would be entirely unprecedented as demonstrated by the 

following cited cases in which school desegregation stays have 

been denied or vacated. Lucy v., Adams, 350 U. S. 1 (1955); County!   

School Board of Arlington County, Va. v. Hamm, 4 Race Rel. L. Rep. 
  

14 (1959) (Order of Chief Justice Warren in Chambers) ; United 

States v. Louisiana, 364 U. 8S. 500 (1960); Ennis v. Evans, 364 
    

U. S. 802 (1960); Houston Independent School District v, Ross, 364 
  

U. 8S. 803 (1960); Orleans Parish School Board v. Bush, 364 U. S. 
  

B03 (1960); Danner v. Holmes, 364 U. 8. 939, 5 Race Rel. 1. Rep. 
  

1092 (1961) (refusing to reinstate a stay dissolved by Chief 

  

Judge Tuttle of the Fifth Circuit in Holmes v. Danner, 5 Race Rel. 

IL. Rep. 1081 :{1961)); Board of Fducation v., Taylor, 82 8. Ct. 10 
  

(1961) (Opinion of Mr. Justice Brennan in Chambers); Meredith v. 
  

Pair, © L.ed 284 43, 83 8. Ct.-10 (1962) (Opinion of Mr. Justice 

Black in Chambers); Board of School Commissioners v. Davis, 11 
  

L.ed 24 26, B84 ' 8. Ct. 10 (1963) (Opinion of Mr, Justice Black in 

Chambers); Wallace v. Lee, 387 U. S. 916 (1967); Caddo Parish     

  

 



  
    

4 * 

School Board v. United States, 386 U, §. 1001 :{1967). In an   

  

unreported order in Boomer v. Beaufort County, N. C. Board of 

Education and Felton v. Edenton-Chowan School Administrative Unit,   
  

(August 30, 1968) Mr. Justice Black vacated stay orders issued by 

a panel of the Fourth Circuit and reinstatéd injunction requiring 

prompt school desegregation. The Boomer order said that the 

Green decision "requires that the desegregation of school be 

completely carried out at the earliest possible moment." Mr. 

Justice Brennan similarly vacated stays and reinstated injunctions 

in cases involving Denver and Oklahoma City. Xeyes v. School 
  

District No. 1, Denver Colo., 396 U. 8. 1215 {August-29,.1969). 
  

Mr. Justice Brennan's stay injunction in the Oklahoma City case 

was subsequently vindicated by the action of the entire Court. 

Dowell v. Board of Fducation of the Oklahoma City Public Schools, 
  

U. 8. : .:,.24 1L,,ed 24 414 (196%). The Oklahoma City and 

Denver cases are particularly relevant in the present contex 

because both cases involved school board appeals from desegregatio 

orders which were challenged becaused they required transportation 

of students to promote desegregation. See also the temporary 

injunctive orders granted in Carter v. West Feliciana Parish 

School Board, 396 UO, 8S. 226 (196%). 

Plaintiffs, therefore, respectfully submit that the Court 

~ should deny defendants' application for stay. 

Respectfully submitted, 

Siig   

/7 
QONRAD O. PEARSON 

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

CHAMBERS, STEIN, FERGUSON & LANNING 

216 West Tenth Street 
Charlotte, North Carolina 28202 

JACK GREENBERG 

JAMES M. NABRIT, 111 

NORMAN CHACHKIN 

10 Columbus Circle 
New York, New York 10019 

Attorneys for Plaintiffs 

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