Jackson v. Metropolitan Edison Company Reply Brief for the Petitioner

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 
Nos. 74~2237 and 74-2.133

WARREN H. WHEELER, ot. al<iK.d 
C.. C. SPAULDING, et 8.1.,

Piainti Ofs-Appellants,

THE DURHAM CITY'BOARD OF EDUCATION,
O L- 3.1 * ,

D e f enda nts-Appe j. 1ee s,
and

CLARENCE THOMPSON, et al.,
Plaintiffs-Appe11ant s, 

v .
THE DURHAM COUNTY BOARD OF EDUCATION, 
et ai.,

De fondants-Appe11ees.

Appeal From The United States District court For The
M o  r * r i  '» ^  n-lcfv'ir'-l- H & Y ' r y l  o r i  =» P i  ' i r i  q i  o n

BRIEF FOR APPELLANTS

WILLIAM A. MARSH, JR.
203 1/2 East. Chapel Kill Street 
Durham,. North Carolina 27701

J. LeVONNE CHAMBERS 
ADAM STEIN

951 S. Independence Blvd 
Charlotte, North Cardin 
28202

J. H . WHEELER
118 West Parish Street - 
Durham, North Carolina 27701

JACK GREENBERG 
JAMES M. NA.BRIT, III 
NORMAN J. CHACHKIN 

1C Columbus Circle 
New York, New York 10019

Attorneys for Appellants



TABLE OF CONTENTS

Table of Authorities . .   ii
Issues Presented for Review.......... ........... la
Statement of the Case ...........................  2
Statement of Facts

1. Durham City Schools .....................  8
2. Durham County Schools and Public

Housing and Relocation ..................  12
3. Plaintiffs' Proposed Plans of

Desegregation ...........................  16
4. The 1974-75 Plans Submitted By

The Boards ..............................  17
ARGUMENT —

I The District Court Should Have Ordered 
Complete Desegregation Of The Durham
City School System ....................  21

II The Durham County Board's 1974-75 Pupil
Assignment Plan Unconstitutionally 
Places A Disproportionate Burden Upon 
Black Students ........................  27

III The District Court Should Have Granted
Injunctive Relief To Halt Practices Of 
City Agencies Which Thwarted Effectu­
ation Of Desegregation In Durham......  30

Conclusion ......................................  34
Certificate of Service ..........................  36

Page



Table of Authorities

Cases:

Adams v. Rankin County Bd. of Educ., 485 F.2d
324 (5th Cir. 1973) ........................  26

Adams v. School Dist. No. 5, Orangeburg, 444
F.2d 99 (4th Cir. 1971), cert, denied sub. 
nom. Winston-Salem/Forsyth County Bd. of
Educ. v. Scott, 404 U.S. 912 (1971) ..... . 23n, 26, 27

Alexander v. Holmes County Bd. of Educ., 396
U.S. 19 (1969) ................ ............. 12

Arvizu v. Waco Independent School Dist., 495
F . 2d 499 (5th Cir. 1974) ...................  28

Boyd v. Pointe Coupee Parish School Bd., No. 71- 
3305 (5th Cir., Dec. 10, 1974), rev1g 332 
F. Supp. 994 (E.D. La. 1971). ...............  24

Boykins v. Fairfield Bd. of Educ., 457 F.2d I0yl
(5th Cir. 1972) ..................... ....... 24, 25

Bradley v. School Bd. of Richmond, 51 F.R.D. 139
(E.D. Va. 1970)   34

Brewer v. School Bd. of Norfolk, 397 F.2d 37
(4th Cir. 1968)     31

Brice v. Landis, 314 F. Supp. 974 (N..D. Cal. 1969) 28
City of Kenosha v. Bruno, 412 U.S. 507 (1973) .... 5n
Clark v. Board of Educ. of Little Rock, 449 F.2d 

493 (8th Cir. 1971), cert, denied, 405 U.S.
936 (1972) .................................. 28

Crow v. Brown, 332 F. Supp. 283 (N.D. Ga. 1971),
aff'd 457 F.2d 788 (5th Cir. 1972) ....... . 31

Dowell v. Board of Educ. of Oklahoma City, 465 
F.2d 1012 (10th Cir.), cert, denied, 409
U.S. 1041 (1972)    24

Page

xi



Table of Authorities (continued)
Page

Ellis v. Board of Public Instruction, 465 F.2d
878 (5th Cir. 1972) .....................••** 24

Flax v. Potts, 464 F.2d 865 (5th Cir.), cert.
denied, 409 U.S. 1007 (1972)................. 24

Goss v. Board of Educ. of Knoxville, 444 F.2d
632 (6th Cir. 1971) ................ -....... 23n

Green v. County School Bd. of New Kent County,
391 U.S. 430 (1968) ........................  3' 9' 23

Green v. School Bd. of Roanoke, 316 F. Supp. 6 
(W.D. Va. 1970), aff'd sub nom. Adams v.
School Dist. No. 5, Orangeburg, 444 F.2d 99 
(4th Cir. 1971), cert, denied sub nom. 
Winston-Salem/Forsyth County Bd. of Educ. v.
Scott, 404 U.S. 912 (1971) .................. 28

Harrington v. Colquitt County Bd. or Educ., 4-t>u 
F.2d 193 (5th Cir.), cert, denied, 409
U.S. 915 (1972) .................. . ......... 21' 28

Hart v. County School Bd. of Arlington County,
459 F.2d 981 (4th Cir. 1972) ...............  27-28

Hobsen v. Hansen, 269 F. Supp. 401,(D.D.C. 196/), 
aff'd sub nom. Smuck v. Hobson, 405 F.2d 175 
(D.C. Cir. 1969) ...................... ..... 33

Hereford v. Huntsville Bd. of Educ., 504 F«2d
857 (5th Cir. 1974) ........................  24

Kelley v. Metropolitan County Bd. of Educ., 463 
F.2d 732 (6th Cir.), cert, denied, 409 U.S.
1001 (1972) ................. ;.............* 24

Kelly v. Guinn, 456 F.2d 100 (9th Cir. 1972),
cert, denied, 413 U.S..919 (1973) ..........  25n

Keyes v. School Dist. No. 1, Denver, 413 U.S.
189 (1973) .................................  23n

iii



Table of Authorities (continued)

Page

Lee v. Macon County Bd. of Educ., 448 F.2d
746 (5th Cir. 1971) ........................  28

Lemon v. Bossier Parish School Bd., 446 F.2d
911, 444 F.2d 1400 (5th Cir. 1971) .........  23

McFerren v. County Bd. of Educ., 497 F.2d 924
(6th Cir. 1974)    28

Medley v. School Bd. of Danville, 482 F.2d 1061 
(4th Cir. 1973), cert, denied, 414 U.S.
1172 (1974) ....... ......................... 22, 25, 27

Milliken v. Bradley, 41 L.Ed.2d 1069 (1974) .... . 23n
Monroe v. Board of Comirt'rs of Jackson, 391 U.S.

450 (1968) ..................... ............ .9
Monroe v. County Bd. of Educ., 505 F.2d 109

(6 Lh Cxi . j ) ............... ................  x--xr

Nesbit v. Statesville City Bd. of Educ., 418
F. 2d 1040 (4th Cir. 1969) ..... ............. 12

Northcross v. Board of Educ. of Memphis, 466
F.2d 890 (6th Cir. 1972), cert, denied, 410
U.S. 926 (1973), vacated and remanded on
other grounds, 412 U.S. 42 7 (1973) .........  2 5

Pate v. Dade County School Bd., 434 F.2d 1151
(5th Cir. 1970) ............................. 27

Raney v. Board of Educ. of Gould, 391 U.S. 443
(1968) ......................................  9

Robinson v. Shelby County Bd. of Educ., 467 F.2d
1187 (6th Cir. 1972)   28

Sloan v. Tenth School Dist. of Wilson County,
433 F.2d 587 (6th Cir. 1970) ...............  31

Swann v. Charlotte-Mecklenburg Bd. of Educ.,
402 U.S. 1 (1971) ..........................  22, 24, 25, 31

IV



Table of Authorities (continued)
Pa^e

Swann v. Charlotte-Mecklenburg Bd. of Educ.,
431 F.2d 138 (4th Cir. 1970), rev'd in
part, 402 U.S. 1 (1971) ....................  22

Swann v. Charlotte-Mecklenburg Bd. of Educ.,
Civ. No. 1974 (W.D.N.C., August 7, 1970),
aff'd 402 U.S. 1 (1971) ............ ........ 29-30

Weaver v. Board of Public Instruction, 467 F.2d 
473 (5th Cir. 1972), cert, denied, 410 U.S.
982 (1973) ...................... ........... 25

Wheeler v. Durham City Bd. of Educ., 363 F.2d 738
(4th Cir. 1966) ...................... ...... 3n

Wheeler v. Durham City Bd. of Educ., 196 F. Supp.
71 (M.D.N.C. 1961) .......... ............... 3n

Statutes:

20 U.S.C.A. §1653 (1974)   31
42 U.S.C.A. §2000d (1974)    31

Rules
F.R.C.P. 19 ...............................   34
F.R.C.P. 21 ......................................  34

v



IN THE

UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT 
Nos. 74-2137, - 2138

WARREN H. WHEELER, et al., 
and

C. C. SPAULDING, et al.,
Plaintiffs-Appellants

v.
DURHAM CITY BOARD OF EDUCATION, 
et al.,

Defendants-Appellees,
and

CLARENCE THOMPSON, et al..
Plaintiffs-Appellants,

v.
DURHAM COUNTY BOARD OF EDUCATION, 
et al.,

Defendants-Appellees.

Appeals From The United States District Court For The 
Middle District Of North Carolina, Durham Division

BRIEF FOR APPELLANTS



Issues Presented For Review

1. Should the District Court have ordered further 
desegregation of the Durham City schools rather than 
holding that implementation of the 1970 plan made the 
system unitary?

2. Should the District Court have rejected the 
Durham County Board’s 1974-75 proposal for the elementary 
schools on the ground that the conversion of Bragtown and 
Lakeview to single-grade centers unfairly and dispro­
portionately burdens black students?

3. Should the District Court have granted injunctive 
relief against the City of Durham, and/or against city 
agencies which could have been added as parties necessary 
for relief, to prevent the future location of massive public 
housing projects, relocation activities, or other official 
action which would impede and undermine the success of its 
desegregation orders?

la



Statement of the Case

These are appeals from orders entered by the district 
court in these consolidated school desegregation cases 
following a 1974 trial on plaintiffs' Motion for Further 
Relief and Supplemental Complaint seeking consolidation, 
cross-boundary assignments, or other form of interdistrict 
relief between the Durham City and County school systems.
The District Court denied any form of interdistrict relief 
(the instant appeals do not challenge that action) and also 
denied plaintiffs' requests for alternative relief. Plaintiffs
p p u  r r Vi -f- a (  "1 \ •Pivr+-V>rN v* — » 4— ! /-x -C 4-V «  - r - \ ^  n  J J—  T' ' .. * • - ------w—•       
schools —  many of which had remained racially identifiable 
and segregated despite the 15 years of litigation in the 
Wheeler and Spaulding cases; (2) adoption of a fairer and 
more equitable 1974-75 desegregation plan for the Durham 
County elementary schools to replace the clustering plan pro­
posed by the school authorities, which reduced two elementary 
schools with predominantly black enrollments to single-grade 
centers; and (3) injunctive relief against city agencies whose 
practices, including the location of multi-family public 
housing projects, had contributed significantly to the con­
centration of black students in particular Durham City and 
County schools, and which threatened in the future to destroy

2



the effectiveness of any desegregation decrees entered by the 
district court against the school authorities. The District 
Court granted no injunctive relief and accepted separate 
city and county plans despite these claims of insufficiency and 
unfairness.

The Durham City school desegregation cases (Wheeler and
1/Spaulding) were filed in I960, and were last before this

2/
Court in 1966, at which time the freedom-of-choice method 
of pupil desegregation was endorsed. Thereafter, and following 
the Supreme Court's decision in Green v. County School Board 
of New Kent County. 391 U.S. 430 (1968), plaintiffs filed a
Motion for Further Relief which resulted, ultimately, in the 
issuance of an Order on July 31, 1970 approving (as modified) 
a new plan of pupil assignment, based upon geographic zoning 
and the contiguous pairing of three sets of elementary schools

3/(A. 99,488). That plan projected school facility racial

1/ See Wheeler v. Durham City Board of Education, 196 F. Supp. 
71 (M.D.N.C. 1961).
2/ Wheeler v. Durham City Board of Education, 363 F.2d 738 
(4th Cir. 1966) .
3/ Citations are to the Appendix reproduced in connection with 
this appeal, pursuant to agreement of counsel, a Supplemental 
Appendix containing additional portions of the record will be 
filed hereafter.

3



compositions ranging from 21% to 90 black, in the city 
system which was then 60% black (A. 486$ .

When implementation of the plan failed to produce even 
these results, the Durham City Board studied alternative 
means of achieving greater desegregation, and discussed 
possible plans with both plaintiffs' counsel and members 
of the public (A. 65-66,209). However, the Board having failed 
to act, plaintiffs on July 25, 1972 filed another Motion for
Further Relief in the city case, alleging that the 1970 decree
had not worked to create a unitary public school system in
Durham, that reaching this goal was made more difficult by the
fact that the city school district did not include the entire 
geographic area of the city's political jurisdiction, and 
requesting that the Court require the submission of a new plan 
to include that entire area (A. 17-25-

Because such relief would affect the Durham County 
district, which currently administers five schools located in

4/
the "city-out" area, plaintiffs on October 16, 1972, filed 
a motion seeking leave, subsequently granted by the district

4/ The geographic area within the corporate limits of the City 
of Durham, but outside the boundaries of the city school system. 
"City-in" refers to the portion of Durham City within the city 
school district.

4



court, to add the Durham County Board of Education and
Superintendent, as well as various State educational and
municipal officials, as parties defendant. At the Court's
direction, plaintiffs filed a Supplemental Complaint against
the original and added defendants on December 18, 1972; and
the Wheeler-Spaulding and Thompson cases were then consolidated
for purposes of trial on the issues raised by the Supplemental 

5/
Complaint. Pre-trial motions to dismiss were denied, or
carried with the case, and discovery proceeded. Plaintiffs' 
motion for interim injunctive relief against the Durham City 
district defendants was denied by the district court on December 
6, 1973 on the ground that mid-year implementation of a new 
desegregation plan for the city schools

would create a disruptive and uncertain 
atmosphere at a time when comprehensive 
and drastic changes are being prayed for 
in a supplemental complaint filed in these 
consolidated actions on December 15, 1972.

5/ On June 11, 1974, plaintiffs filed a post-trial motion for 
leave to amend their original and Supplemental Complaints to 
eliminate potential jurisdictional problems which arose following 
the Supreme Court's decision in City of Kenosha v. Bruno, 412 U.S. 
507 (1973), by broadening the jurisdictional claims and adding 
individual members of the various boards as defendants. This 
motion was granted by Order of July 30, 1974 at the same time 
as the merits of the main case were determined by the district 
court (A. 470-78).

5



The busing remedy, as well as other measures, 
approved in Swann, supra, has been utilized 
to a significant extent in the Durham City 
Administrative School Unit, and court-ordered 
procedures to further desegregate the school 
system, if to take effect during this school 
year, would seriously impinge upon the 
educational process without corresponding 
benefits toward the establishment or per­
petuation of a unitary school system. [Findings 
of Fact and Conclusions of Law, issued December 
6, 1973, pp. 14, 16]

The matter was tried before the Court in May, .1974 and decided 
July 30, 1974.

Although the primary relief sought in the Supplemental 
Complaint was inter-district assignment, of students between 
the Durham city and county school systems, plaintiffs alter­
natively prayed

that plans of desegregation for both 
units be developed and implemented 
which will provide for the assignment 
of students by the two units in order 
to eliminate the racial segregation and 
racial identity of the schools and 
school units of Durham County and Durham 
City.

and for "such other, alternate or additional relief as the 
Court may deem the plaintiffs entitled [to]." (A. 36 ).
Furthermore, in light of the substantial evidence developed 
during discovery and presented at the trial concerning the 
activities of city agencies (the Durham Housing Authority,

6



Redevelopment Commissdon, etc.) which impacted negatively 
upon the creation and maintenance of unitary school systems 
in both the city and county, plaintiffs' Proposed Findings 
of Fact and Conclusions of Law submitted after the trial 
requested an injunction requiring

that the City of Durham shall immediately 
take such steps as may be necessary to 
insure that none of the city agencies, 
whether under the direct or indirect 
control of the city, institute or 
implement any policies or practices 
which have the affect [she] of perpetuating 
or resegregating the public schools of 
Durham city and Durham county.

(Plaintiffs' Proposed Findings of Fact, Conclusions of Law, 
and Order, filed June 14, 1974, at p. 35). The Court's Order 
of July 30, 1974, denied "[p]laintiffs' request for relief 
contained in plaintiffs' supplemental complaint . . .," 
gave plaintiffs ten days within which to object to a Durham 
County Board of Education motion to alter its desegregation 
plan by converting Lakeview and Bragtown Elementary Schools, 
which had become majority-black schools, into single-grade 
attendance centers, and directed the Durham City Board of 
Education to submit its pupil assignment plan for the 1974-75 
school year (A.5 33-34). August 26, 1974, plaintiffs noticed 
their appeal from the July 30 Order (A. 546) .

7



Plaintiffs subsequently objected to both the Durham 
County and Durham City school board plans for 1974-75 (A. 542 ), 
but their objections were overruled by the district court in 
an Order entered August 29, 1974 (A. 551 ). Neither Order of 
the District Court granted any relief against the City of 
Durham or city agencies. Plaintiffs noticed their appeal from 
the second district court decree on September 3, 1974 (A. 553 ).

Statement of Pacts

1. Durham City Schools

The Durham City School Administrative Unit.’, as it is 
referred to under North Carolina law, is located within but 
is not fully coextensive with, the City of Durham. During 
the 1973-74 school year, the city school system operated 24 
facilities: two high schools, six junior high schools, and
sixteen elementary schools, enrolling some 10,034 students in 
grades 1-12 (A. 490); the city district extends approximately 
five miles from North to South and four from East to West (A. 199).

As noted above, the present litigation to desegregate the
§/Durham city schools was commenced fifteen years ago. Prior

6/ Reported decisions in the Wheeler case are as follows: 196
F. Supp. 71 (M.D.N.C. 1961); 210 F. Supp. 839 (M.D.N.C.), rev'd 
309 F.2d 630 (4th Cir. 1962); 326 F.2d 759 (4th Cir. 1964); 346 
F . 2d 768 (4th Cir. 1965); 249 F. Supp. 145 (M.D.N.C.), rev1d in part, 
363 F.2d 738 (4th Cir. 1966); 379 F. Supp. 1352 (M.D.N.C. 1974).

-  8 -



to the entry of the Orders from which these appeals are taken, 
the case followed the usual pattern of school desegregation 
actions: approval of pupil placement schemes, then freedom
of choice. After the Supreme Court's Green, Monroe and Raney

Vdecisions in 1968, proceedings initiated by the filing of 
another Motion for Further Relief resulted in the approval 
and implementation of a new plan embodying the mandatory assign­
ment of pupils, which remained in effect from 1970-7], until 
1974-75.

The 1970 plan employed the techniques of contiguous 
geographic zoning and contiguous pairing only (A. 91, 99-100,
120). It did not utilize either satellite znni.nrr o-r non­
contiguous pairing because of the added pupil transportation which

8/would have been required by these devices (A. 104-05, 110, 119) 
and it did not have as a starting-point or goal, the approximation 
of the system-wide racial, composition in the city schools (A.
102, 120). Indeed, projections under the 1970 plan as approved 
showed schools anticipated to have student populations of widely 
divergent racial makeup (A. 108-09, 488). Significantly, the 
schools which were expected to be virtually all-black (more than

7/ Green v. County School Board of New Kent County, supra; Monroe 
v. Board of Commissioners of Jackson, 391 U.S. 450 (1968); Raney 
v. Board of Education of Gould, 391 U.S. 443 (1968).
8/ The Durham City Board did not operate its own transportation 
system; students utilized public transit buses operated by the 
Duke Power Company (A. 99-100).

9



80%) were previously operated as segregated all-black 
institutions under the dual system (see A. 216-17). In short, 
the plan did not, as conceived, seek to maximize desegregation 
of the Durham city public schools (A. 107).

Nor did the 1970 plan, as executed, achieve this result.
The projected levels of desegregation —  limited as they were 
—  did not materialize (A. 52-53, 57, 65, 188, 409). Many 
traditionally black schools had less then 10% white students 
when the geographic zoning plan was first implemented (A. 489).
The Board's disappointment with these results, and complaints 
from parents about one-race schools, led to study of alternative 
means of assignment which would bring about greater desegrega­
tion of the city's school system (A. 50-51, 58-59, 65-67, 209). 
This investigation, of ways to improve the desegregation plan 
continued until the filing of plaintiffs' Motion for Further 
Relief in 1972 —  but without any action by the Board to 
modify its plan despite steadily worsening results under its 
1970 pupil assignment scheme. Although the Board was presented

9/
with several effective and fully feasible alternatives, all

9/ For example, the markedly different racial composition of 
Durham and Hillside High Schools (55% and 78% black, respectively, 
in 1973-74) could be eliminated by rezoning (A. 212). Plaintiffs 
proposed a Durham city system plan doing just that (A. 466). 
Contrast the Board's ineffective high school rezoning for 1974-75 
(A. 541) .

10



of which required additional transportation of students (A. 39, 
51, 197-99), it never made any changes in the 1970 plan until 
after plaintiffs' Motion for Further Relief had been decided. 
Instead, the decision was made to "study further" (A. 37, 69-70, 
214-15). Once the Motion was filed, it became the excuse for 
inaction (A. 42, 47, 62, 71).

By 1973-74, therefore, the Durham City school board was 
still assigning students pursuant to a desegregation plan 
drafted in 1970, utilizing no noncontiguous assignment techniques 
and very little pupil transportation, and v/hich was markedly 
ineffective in eliminating substantially disproportionate pupil 
racial compositions among its schools, as illustrated by these 
examples (A. 490):

School Grades 1973-74 % Black
Durham High 10-12 55%
Hillside High 10-12 78%
Brogden Jr. High 7-9 20%
Rogers-Herr Jr. High 7-9 81%
Shepard Jr. High 7-9 96%
Powe Elementary 1-6 28%
Watts Elementary 1-6 45%
Spaulding Elementary 1-6 97%
Pearson Elementary 1-6 98%
Burton Elementary 1-6 93%

These results were held by the district court to represent
"full compliance" with the Fourteenth Amendment; the Court

11



found the system was "'unitary' in the sense required in the 
later decisions in Green . . Alexander . . . and Swann . .
(A. 526-27). Accordingly, the Court held that "further 
court-ordered pairing or grouping of attendance zones is not 
constitutionally mandated at this time" (A. 526).

2. Durham County Schools and Public Housing and Relocation

The Thompson case was brought.to end racial discrimination
within the Durham County School Administrative Unit in 1963,

10/and it, too, followed the classic pattern of such suits.
After this Court's 1969 reversal of a delay in eliminating
freedom of choice, which had been granted by the district court

11/prior to the decision in Alexander (Nesbit v. Statesville 
City Bd. of Educ., 418 F .2d 1040 [4th Cir. 1969]), a geographic 
zoning plan for county schools was submitted to, and approved 
by, the district court. Enrollments under the plan remained 
relatively stable until 1972, when the larger two of three 
public housing projects constructed by the Durham Housing 
Authority in the "city-out" area opened (A. 229). As a result 
of this construction, in the area served by the Lakeview

10/ A more thorough history of the case is given in the 
district court's opinion, A. 482-86.
11/ Alexander v. Holmes County Board of Education. 396 U.S. 19 
(1969) .

12



and Bragtown Elementary Schools, there was an immediate and
12/

radical shift in the racial composition of these schools:

1969-70
% Black 

1971-72 1972-73 1973-74

Bragtown 37% 45% 63% 73%
Lakeview 36% 33% 57% 67%

When the 1970 plan was drafted, however.- the Durham County 
board had no knowledge that this might occur, since there had 
been no notification or communication from the Housing 
Authority about the projects (A. 76, 77-78, 246, 267, 324,
Am

More than half of Durham County's 1970-1974 gain in black 
student population is attributable to public housing, according 
to the Superintendent (A. 236-37); he and other witnesses 
agreed that the location of such a large concentration of units 
in the Bragtown-Lakeview area was responsible for the sudden

13/resegregation of the two schools (A. 75, 164, 227-28, 260)-

12/ In Durham, as in many localities, public housing is 
occupied predominantly by blacks (A. 150, 153, 276-88; see 
A. 124) .
13/ Similarly, the county system had no knowledge of the public 
housing when it planned the new Chewning Junior High School in 
the Northern part of the system; the contemplated assignment zones 
were modified in 1974-75 utilizing non-contiguous zoning for 
Carrington Junior High to avoid a disproportionate concentration 
of black students at Chewning (A. 254-57).

13



The Executive Director of the Housing Authority recognized
that public housing 'practices had caused or magnified the
concentration of black students in particular schools within

M /
both the city and county systems —  largely because units 
had been grouped together in massive projects rather than 
being dispersed on 11 scattered sites" (A. 294) . He admitted 
that the conscious location of public housing could assist

15/rather than retard desegregation of the schools, and that
the continued building of large multi-unit projects would lead 
to further resegregation of schools (A. 296) . Yet the 
Authority's position when the Bragtown-Lakeview units were 
being considered was to ignore any impact upon the schools 
and "leave it to the developer" of the Turnkey projects (A. 
324-25).

Similarly, the Mayor and members of the City Council 
expressed their total lack of concern with the consequences for 
individual school populations of various city agency actions,

14/ The City Superintendent agreed that this had been the result 
within the city (A. 269, 271), where both public housing and 
relocation services had largely been limited to the predominantly 
black southeastern section of Durham; the U.S. Department of 
H.U.D. had for this reason imposed a temporary prohibition on 
further location of public housing in southeast Durham (A. 124, 
143, 171, 306, 346-48).
15/ The benefits of joint planning with school officials were 
also recognized by the Durham Planning Director (A. 400) and the 
Mayor (A. 125-26). However, the district court did not order it.

14



including, in particular, public housing, urban renewal, and
16/

relocation programs —  stating either that the Council never
thought about possible effect on the schools or that these
activities were completely beyond the control of the city's
governing body, being committed to other governmental entities

17/
(A. 122-23, 132, 136-37, 143, 158-59, 163, 178, 185). But
not only does the Council appoint the membership of these 
"independent governmental agencies" (the city district school 
board, Housing Authority, Redevelopment Commission, etc.) as 
well as receive periodic reports about housing and renewal 
activities (A. 174, 184, 290); it may replace members, merge 
or abolish the agencies, and influence or even’stop particular 
projects if it so desires (A. 127, 344-45). In fact, the 
Council has discussed the location of specific public housing 
units (A. 175, 177-78) and it has contributed funds to the 
Housing Authority for specific uses it favors (A. 345). The 
governmental prerogatives have simply not been exercised for the 
purpose of preventing the resegregation of schools as occurred 
at Bragtown and Lakeview.

16/ Since 1962, Durham has provided relocation assistance to 
more than a thousand families and individuals (A. 362-71), most 
of whom were blacl̂  (ibid.) . Historically, most of these persons 
were relocated in southeast Durham; and 65% of those relocated 
have moved to public housing projects (A. 374-75).
17/ Council members knew, however, of the tendency of the public 
housing program as it has been operated in Durham to increase the

15



3. Plaintiffs' Proposed Plans of Desegregation

At the trial on the merits in May 1974, plaintiffs 
presented alternative plans of desegregation for consolidated 
and separately operated school districts in Durham City and 
County (A. 454-69), through the testimony of educational 
and computer expert witnesses who had prepared the plans 
(A. 411-39). The plans included separate assignment proposals 
for students in the existing Durham City and County systems 
in a manner which would maximize desegregation (A. 429-30).
The plans were based upon geographic zoning, utilizing a 
computer model to draw separate zones for black and white 
students at each grade level which would achieve desegregation 
of the schools while minimizing pupil transportation (A. 416-17). 
As the district court found, under plaintiffs' plans the 
projected racial composition of city schools would range from 
63% to 74% black, and that in county schools between 17% and 
31% black (A. 50 9) .

17/ (Continued)
residential concentration of blacks (A. 122-23, 154-55). They 
can hardly have been completely ignorant of public school affairs 
in the city they governed.

16



Mrs. Stein, one of the drafters, testified that the 
computer drawn zones provided a good basis upon which the 
school authorities could make actual pupil assignments in 
order to achieve full desegregation of the city and county 
schools, although the computer zones would have to be modified 
to conform to natural boundaries, etc.; there was no reason 
to expect that such modifications (some of which had been 
made in the process of devising the plans) would result in a 
substantial change in projected racial compositions (A. 423- 
26) .

The District Court found that "the various plans of th<̂  
plaintiffs demonstrate that the schools can be more effectively 
desegregated" (A. 509).

4. The 1974-75 Plans Submitted By the Boards

In the Fall of 1973, the Durham County Board determined 
to modify its elementary school pupil assignment plan in order 
to eliminate the resegregation which had developed as a result 
of the public housing in the Bragtown-Lakeview area (A. 441-42). 
A variety of options, involving rezoning, pairing or clustering 
was available to alter the majority black enrollments at 
these two schools (A. 81-82). Through the Title IV Center 
in Raleigh, the Board brought in a consultant with experience

17



in desegregation from Ohio State University (A. 444), who 
recommended that Bragtown and Lakeview each be included 
with two nearby schools in separate three-school clusters 
(A. 247-48). Instead of adopting this recommendation, 
however, the Superintendent proposed and the Board ultimately 
adopted and submitted to the district court a plan whereby 
Bragtown and Lakeview would operate as Sixth Grade and 
Kindergarten centers, respectively, for a larger cluster 
involving a total of six elementary schools: Bragtown,
Lakeview, Hillandale, Holt, Glenn and Merrick-Moore (A. 240-41,

18/
445) .

Plaintiffs objected to the county plan because the black 
students who now predominate in the Bragtown and Lakeview 
areas will be assigned away from their homes for a dis­
proportionate number of years (5 of 6) while white students 
in the clustered schools will remain in their pre-1974 assign­
ment patterns for 5 of 6 years. Plaintiffs noted that their

18/ The plan also involves minor changes in zone lines among 
county elementary schools, moving approximately 100 students 
each from Little River to Mangum, Holt to Little River, and 
Hillandale to Holt (A. 241).

18



desegregation proposal presented at trial would achieve 
results equal to those under the county plan without 
disproportionately burdening the black community in this 
manner (A. 543). The District Court overruled plaintiffs' 
objections and approved the county plan on August 29, 1974 
(A. 552).

In accordance with the July 30 Order of the District 
Court (A. 534), the City Board of Education also submitted 
a 1974-75 plan (A. 536-41). This proposal involved a-minor, 
shift in the zone line between the two city high schools, 
and the pairing of two additional elementary schools.
However, it did not seek nor was it anticipated to eliminate 
all of the substantial disproportions in the racial composition 
of city schools (A. 541). For example, Brogden Junior High 
School was projected 20% black, and Powe Elementary School 
was projected 31% black, while Shepard and Whitted Junior 
High Schools, as well as Fayetteville Street, Pearson, and 
Spaulding Elementary Schools were each expected to be more 
than 90% black.

Plaintiffs objected to the constitutional sufficiency 
of this plan (A. 542-43), but their objections were overruled 
by the District Court (A. 552), apparently in accordance with

19



the Court's earlier holding that a unitary system within 
the city had been established. Nevertheless, the District 
Court directed the City Board to submit further revisions 
of its desegregation plan for the 1975-76 school year, and 
to place special emphasis on "schools which currently have 
a white pupil enrollment of 20 percent or less" (A. 552).

20



ARGUMENT

I

The District Court Should Have Ordered 
Complete Desegregation Of The Durham 

City School System

Repeatedly in its Opinion, the District Court makes the 
assertion (both as a Finding of Fact and also as a Conclusion 
of Law) that "[w]ith the implementation of . . . [the 1970]
desegregation plan . . - the Durham City school system is now
'unitary' . . . "  (A. 492-93, 504, 526-27). Whatever the
proper characterization of the statement, it is flatly wrong 
under' governing rulxiiys of the United Grates Supreme Court- ana 
decisions of this and other Circuits.

Even a quick perusal of the results expected under the plan, 
and the actual experience thereunder (A. 488-90) indicates the 
continuing substantial disproportionality of racial composition 
among the various schools in the Durham city system. As this 
Court has said in similar circumstances,

In the light of the history of state- 
enforced segregation in the [Durham] 
schools, the marked residual disparity 
in the racial balance of the schools 
under the plan of the District Court 
strongly suggests that the plan is 
ineffective to attain an acceptable 
degree of realistic desegregation.

21



Medley v. School Bd. of Danville, 482 F.2d 1061, 1063 (4th Cir.
1973), cert, denied, 414 U.S. 1172 (1974). Furthermore, the
cause of the ineffectiveness is not hard to discern on this 
record. The 1970 plan was drafted and approved by the district 
court before even this Court's decision in Swann v. Charlotte- 
Mecklenburq Bd. of Educ., 431 F .2d 138 (4th Cir. 1970), rev1d in 
part on other grounds, 402 U.S. 1 (1971), which endorsed the use 
of non-contiguous assignment techniques and pupil transportation 
at the secondary level in order to achieve effective school 
desegregation. As described above, it employed only geographic

19/rezoning and contiguous pairing, with minimal transportation of
20/

pupils. It was nor aevxsea xn antxcxpatxon ot tne governxng
standard enunciated by the Supreme Court in Swann, supra: that

19/ The district court's description of the plan as involving the 
"pairing of schools at opposite ends of the City" (A. 526) is 
somewhat misleading. Contiguous sets of elementary schools in 
northeastern and southern Durham were paired but there was no 
combination of identifiable schools of opposite racial concentra­
tions at either extremity of the district.
20/ Although defendant Durham City Board of Education included 
in its Proposed Findings of Fact and Conclusions of Law the 
following finding:

The bussing remedy, approved in Swann, 
supra, has been fully utilized in the 
Durham City Administrative School Unit, 
and further Court-ordered pairing or 
grouping of attendance zones could result 
in significant impingement of the educa­
tional process.

the district court limited its holding as follows, declining to 
employ the term "fully":

22



desegregation be maximized. In short, proving ineffective, and 
having been designed without regard to the strictures of Swann,
the 1970 plan must be replaced with one holding greater promise

21/ 22/
of effectuating system-wide desegregation "root and branch"

The obligation of the Durham City School Board to achieve 
the actual desegregation of all of its schools is not mitigated, 
as the district court apparently thought, by the fact that 
demographic changes may have contributed to the failure of the 
1970 decree (see A. 493-94, 504-05). The 1970 plan could not 
be said to create a unitary system instanter, even accepting 
arguendo the sufficiency of its projections, but only when it 
lictCl jprOVfciCc _i_ u S vii j. .L. j_Ii L u a r  u x C o  C v C i .  Ca-iuO • G i. 0011 V • u O U n  l. y

School Bd. of New Kent County, supra; Lemon v. Bossier Parish 
School Bd., 444 F .2d 1400, 446 F.2d 911 (5th Cir. 1971). Nor is

20/ (Continued)
The busing remedy, approved in Swann, 
supra, has been utilized in the Durham 
City Administrative School Unit, . . . .
(A. 526)

21/ Green v. County School Bd. of New Kent County, supra, 391 U.S. 
at 437-38; see Keyes v. School Dist. No. 1, Denver, 413 U.S. 189, 214 
(1973); Milliken v. Bradley, 41 L.Ed.2d 1069, 1096 (1974).
22/ Cf. Goss v. Board of Educ. of Knoxville, 444 F.2d 632, 634 (6th 
Cir. 1971)("We believe, however, that Knoxville must now conform 
the direction of its schools to whatever new action is enjo ed upon 
it by the relevant 1971 decisions of the United States Supreme Court") 
Adams v. School Dist. No. 5, Orangeburg, 444 F.2d 99 (4th Cir.), cert.
denied sub nom. Winston-Salem/Forsyth County Bd. of Educ. v. Scott, 
404 U.S. 912 (1971).

23



defendants' obligation lessened because, during the time that 
this ineffective plan was being tried, some formerly white 
schools became majority-black. Flax v. Potts, 464 F.2d 865 
(5th Cir.), cert, denied, 409 U.S. 1007 (1972); Kelley v. 
Metropolitan County Bd. of Educ., 463 F.2d 732 (6th Cir.), cert. 
denied, 409 U.S. 1001 (1972). As the Fifth Circuit recently 
put it:

We view this case as presenting no more 
than a motion in the district court for 
further relief in a typical school 
desegregation case where modification is 
indicated because of lack of success.

Hereford v. Huntsville Bd. of Educ., 504 F .2d 857, 858 (5th Cir. 
1974) (emphasis supplied). Accord, Ellis v. Board f Public 
Instruction of Orange County, 465 F.2d 878 (5th Cir. 1972); 
Boykins v. Fairfield Bd. of Educ., 457 F.2d 1091 (5th Cir. 1972) 
Dowell v. Board of Educ. of Oklahoma City, 465 F .2d 1012 (10th 
Cir.), cert, denied, 409 U.S. 1041 (1972); Monroe v. County Bd. 
of Educ., 505 F.2d 109 (6th Cir. 1974); Boyd v. Pointe Coupee 
Parish School Bd., No. 71-3305 (5th Cir., Dec. 10, 1974), rev1 g 
332 F. Supp. 994 (E.D. La. 1971).

Certainly the 1970 plan cannot be justified as resulting 
in only a "small number of one-race schools," Swann, supra, 402 
U.S., at 26. See A. 525-26. The Supreme Court did not intend 

by this language to validate continued substantial school

24



segregation, as is found in Durham. See Northcross v. Board
of Educ. of Memphis, 466 F.2d 890, 893 (6th Cir. 1972), cert.
denied, 410 U.S. 926 (1973), vacated in part and remanded on
other grounds, 412 U.S. 427 (1973); Medley v. School Bd. of

23/
Danville, supra. Even one or two virtually all-black schools
may be constitutionally unacceptable if feasible alternatives 
for their desegregation exist. E.g., Weaver v. Board of Public 
Instruction, 467 F .2d 473 (5th Cir. 1972), cert. denied. 410 
U.S. 982 (1973); Boykins v. Fairfield Bd. of Educ., supra.

Swann directed school boards and district courts "to make 
every effort to achieve the greatest possible degree of actual 
desegregation. . . .11 40 2 U.S. , at 26. It specifically approved
the use of pupil transportation, together with other techniques 
such as pairing, grouping, and grade restructuring of schools, 
as permissible tools to bring about the constitutionally required 
result of actual school desegregation. And it suggested, if it 
did not explicitly state, that valid grounds for objecting to 
desegregation plans using pupil busing exist only when "the time

23/ At least one Court of Appeals has suggested that the 
language relied upon by the district court reflects upon the 
proof necessary to establish a violation, while the following 
sentence in the Supreme Court's opinion articulates the remedial 
standard ("achieve the greatest possible degree of actual desegre­
gation"). See Kelly v. Guinn, 456 F .2d 100, 109-10 (9th Cir. 
1972), cert. denied, 413 U.S. 919 (1973).

25



or distance of travel is so great as to either risk the health 
of the children or significantly impinge on the educational 
process." 402 U.S., at 30-31. Detailed factual findings about 
the impracticality of alternative assignment plans which promise 
greater desegregation are required to sustain district court 
decisions rejecting such plans. Adams v. School Dist. No. 5, 
Orangeburg, supra, 444 F.2d, at 101; Adams v. Rankin County Bd. 
of Educ., 485 F.2d 324, 326 (5th Cir. 1973).

There are no such findings on this record. Indeed, the 
district court found explicitly that plaintiffs' Durham City-only 
desegregation plan as well as the plans considered by the School 
Board in 1972-73, each of which would utilize pupil transportation, 
were fully feasible (A. 505-07, 509). Compared to Charlotte- 
Mecklenburg, or Norfolk, the Durham system is exceedingly compact 
(A. 199); during the freedom-of-choice era, students travelled 
as far as would be required in order to effectively desegregate 
the system today (A. 101).

The District Court praised the city school board for its 
continual restudy of its desegregation plan (A. 505, 523-24, 531). 
The Durham City Board has been notorious for study, but it has 
not translated that study into action. Both in 1970 and 1972, 
the board abruptly ceased consideration of proposals for further 
desegregation when motions for further relief were filed by the

26



plaintiffs (A. 42, 47, 62, 71, 93). The district court should 
have required more than continued study.

We respectfully submit that this Court's decision in Medley, 
supra, is controlling; it, as well as the other authorities cited 
above, requires reversal of the judgment below with instructions 
to the district court to require submission of a new plan of 
desegregation for the Durham City schools, to be based upon the 
alternatives previously considered by the board, or those 
developed by the plaintiffs, and to achieve the levels of 
desegregation projected under these plans. Adams v. School Dist. 
No. 5, Orangeburg, supra; Pate v. Dade County School Bd., 434 
F . 2d 1151 (5th Cir. 1970).

II

The Durham County Board's 1974-75 
Pupil Assignment Plan Unconstitutionally 
Places A Disproportionate Burden Upon 

Black Students

It is now an accepted principle of school desegregation law 
that black students should not bear the sole, or a disproportionate 
share of, the burdens of achieving desegregation. See, e.g., 
Harrington v. Colquitt County Bd. of Educ., 460 F.2d 193, 196 
n.3 (5th Cir.), cert. denied, 409 U.S. 915 (1972); Hart v. County 
School Bd. of Arlington County, 459 F.2d 981, 982 (4th Cir. 1972) 

(school officials may not, in dismantling dual system, "create

27



another form of invidious discrimination"); Arvizu v. Waco 
Independent School Dist., 495 F.2d 499 (5th Cir. 1974); Robinson 
v. Shelby County Bd. of Educ., 467 F.2d 1187 (6th Cir. 1972).
The requirement of fairness has most often been applied in 
situations where school boards have attempted to close down 
black schools completely rather than desegregate them. E.g.,
Lee v. Macon County Bd. of Educ., 448 F .2d 746 (5th Cir. 1971);
Green v. School Bd. of Roanoke. 316 F. Supp. 6 (W.D. Va. 1970),
aff1d sub nom. Adams v. School Dist. No. 5, Orangeburg, supra;
Brice v. Landis, 314 F. Supp. 974 (N.D. Cal. 1969); McFerren v. 
County Bd. of Educ., 497 F .2d 924 (6th Cir. 1974).

However, it is equally applicable to plans which place the 
major burden of busing for desegregation upon black students. 
Harrington v. Colquitt County Bd. of Educ., supra; Clark v. Board 
of Educ, of Little Rock, 449 F.2d 493 (8th Cir. 1971), cert. denied, 
405 U.S. 936 (1972). In these cases, too, courts have required 
nonracial justification for the plans. Particularly relevant to 
this inquiry is the existence of alternative methods of assignment 
which are equally effective but which distribute the burdens of 
desegregation more evenly.

In the instant case, the effect of the County Board's 1974-75 
plan making Bragtown and Lakeview schools single-grade centers is 
strikingly clear: because a majority of black students now reside

28



in the original attendance areas for these schools, they must 
be bused to other schools for five of seven school years 
(counting kindergarten), while white students who formerly 
attended surrounding facilities will "stay at home" five of 
seven years.

This gross difference in the distribution of the burdens 
of achieving desegregation of Brag town and I.akeview is unnecessary; 
and the District Court failed to make any findings of a neutral, 
nonracial justification for the Board's proposal. Two different 
alternatives are available to carry out the board's intentions 
without exacting this penalty from the black community. Dr.
Glatt, called in as a consultant by the Board, suggested two 
three-school clusters (A. 247-48, 444), which would have somewhat 
reduced the busing differential for black and white students.
And plaintiffs' Durham County plan utilized gerrymandered 
attendance zones while retaining the same grade structure for 
all elementary schools in order to desegregate them. Either of 
these proposals would have been preferable to the six-school 
cluster implemented by the board.

It is noteworthy that while the sixth-grade center technique 
(converting black schools to sixth grade centers) formed the 
basis of the initial plan approved in Swann v. Charlotte-Mecklen­
burg Bd. of Educ., Civ. No. 1974 (W.D.N.C., August 7, 1970), aff'd

29



402 U.S. 1. (1971), that plan was recently abandoned in favor
of one which treated all segments of the community on an
equitable basis. The district court should have required the
same in this case, by rejecting the County Board's submission.

*

III

The District Court Should Have Granted 
Injunctive Relief to Halt Practices Of 
City Agencies Which Thwarted Effectuation 

Of Desegregation In Durham

The record in this case reveals a callous disregard by 
governmental agencies in Durham County of both moral obligation 
and also national policy, which the district court should have 
corrected by injunctive relief in order to preserve the 
effectiveness of its decrees. Yet although the Bragtown-Lakeview 
example was fresh evidence of the need, the court failed to act.

The testimony of City Councilmen, the City Planner, the 
Directors of Redevelopment and of the Housing Authority, and 
that of the two School Superintendents showed that the non-school 
governmental agencies had never made any attempt to consider 
what impact their activities might have upon the success of 
the respective school systems' desegregation efforts. These 
officials simply refused to face up to their general obligation 
as governmental officers to enforce all the laws, and their 
actions frustrated the national policy favoring both desegregation

30



and the minimization of pupil transportation. See 42 U.S.C.A.
§ 2000d; 20 U.S.C.A. §1652 (1974). As the history of the 
Bragtown-Lakeview housing projects demonstrates, the Housing 
Authority's failure to consider these matters in locating and 
determining the size of these projects has made necessary 
greater and longer pupil transportation in the county school 
sys tern.

Furthermore, housing officials and school superintendents 
agreed that if the housing and renewal programs continued to 
operate as they had, further resegregation of city or county 
schools was likely. But the district court granted no relief 
and made no findings on this subject.

The relationship between residential segregation and 
school segregation has long been recognized. E.g., Brewer v. 
School Bd. of Norfolk, 397 F .2d 37 (4th Cir. 1968); Swann v. 
Charlotte-Mecklenburg Bd. of Educ., supra, 402 U.S., at 21; 
Sloan v. Tenth School Dist. of Wilson County, 433 F.2d 587 
(6th Cir. 1970). Courts have also noted the consequences for 
school operations of racially impacting practices with respect 
to the location of public housing. E.g., Crow v. Brown, 332 
F. Supp. 382, 391 (N.D. Ga. 1971), aff1d 457 F.2d 788 (5th Cir.
1972). There is ample basis for judicial action to curb dis­
criminatory practices.

31



In the instant case the court is presented with a panorama 
of governmental activities which is nothing short of remarkable.
If the testimony is to be credited, each city agency and official 
managed to perform their official duties without assessing their 
impact upon any other agencies. The City Council appoints 
members of housing and school agencies, receives official reports 
and citizen complaints, but strictly respects the division of 
governmental powers by permitting total latitude to these other 
agencies in running their own programs. The Housing Authority 
and Redevelopment Commission undertake absolutely no coordination 
with the school boards —  although everyone seems to recognize
JL 1~ —  ~ 1- ^  -v-v^3 -? VN — , +- A •» 1 ^  "Vs ̂  n —  T  -f-Vs r s  TXr-\n i‘ >-v AVL t i U L  O  *—  V y  w  W  w.  »—  *  —  -     »  —  -*--- — »-----_J

Authority has further passed the buck to the developers of its 
turnkey projects, although these individuals are not governmental 
officials and although the Authority does not spell out any 
requirement that developers take impact on school desegregation 
into account in planning or locating housing.

Surely this picture of governmental horses wearing huge 
sets of side-vision blinders, or of governmental ostriches with 
their heads in the sand, represents autonomy rampantly carried 
to the point of thoughtlessness and irresponsibility. As Judge 
Wright has said, "the arbitrary quality of thoughtlessness can be 
as disastrous and unfair to private rights and the public interest

32



as the perversity of a wilful scheme." Hobsen v. Hansen, 269 
F. Supp. 401, 497 (D.D.C. 1967), aff1d 408 F.2d 175 (D.C. Cir.
1969) .

It should have been clear to the District Court, as a 
result of the testimony, that unless the City was directed to 
require that its agencies consider impact upon desegregation 
before taking action, there would be no coordination, and 
Bragtown-Lakeview problems were likely to be repeated in the 
future —  seriously impeding the effectiveness of the court's 
desegregation decrees (A. 125-26, 139-40, 356-57, 392-93). The 
court defaulted in its obligation to protect the integrity of 
its orders by not requiring that the City at least consider 
the school systems' needs before building additional multi-unit 
public housing, undertaking urban renewal, etc.; the injunction 
requested by the plaintiffs (see p. 7 above) is but a modest 
step which promised to avoid the need for additional busing, or 
more serious measures in the future.

The District Court made no findings with respect to these 
issues, nor explained its reluctance to grant relief. However, 
if the court was of the view that the Housing Authority, Redevelop­
ment Commission or other agencies should themselves be subject 
to any decree (despite plaintiffs' contention, which we submit 
is amply supported on this record, that the City Council retains

33



sufficient control over these agencies to make any decree 
effective), the Court had full power under F.R.C.P. 19 and 21 
to require the joinder of additional parties. See Bradley v.
School Bd. of Richmond, 51 F.R.D. 139 (E.D. Va. 1970). Since 
this case must be remanded for further proceedings to complete 
the desegregation of the city schools, the court will have ample 
opportunity to add such parties should it conclude that a decree 
should run against them as well as the City.

CONCLUSION

For the foregoing reasons, plaintiffs-appellants respectfully 
nrsv -t-Viat fho -indrrme'nt.s below be reversed, and the cause remanded 
with directions to: (1) require the submission for the approval
of the district court, and implementation, of a new plan of 
desegregation which eliminates racially identifiable schools 
from the Durham City School Administrative Unit; (2) require 
the submission for the approval of the district court, and 
implementation, of a new plan of elementary school pupil assign­
ment for the Durham County School Administrative Unit which does 
not place a disproportionate share of required pupil transporta­
tion upon black students; and (3) enter an appropriate injunction, 
joining such additional parties for this purpose as the court 
may deem necessary, against City authorities and agencies requiring 
that they avoid taking actions which will result in recreating 
or resegregating racially identifiable schools, because of

34



foreseeable racial residential consequences of those actions, 
in either the Durham City or County school systems.

Plaintiffs-appellants further pray that this Court award 
them their costs and reasonable attorneys' fees in connection 
with these appeals.

Respectfully submitted,

951 S. Independence Blvd. 
Charlotte, North Carolina 28202

W ILLIAM A MAP PM ,TP_
203 1/2 East Chapel Hill Street 
Durham, North Carolina 27701

J. II. WHEELER
118 West Parish Street 
Durham, North Carolina 27701

JACK GREENBERG 
JAMES M. NABRIT, III 
NORMAN J. CHACIIKIN 

10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs-Appellants

35



CERTIFICATE OF SEPVICE

I hereby certify that on this 9th day of January, 1975,
I served two copies of the foregoing Brief for Appellants upon 
counsel for the defendants-appellees herein, by depositing 
same in the United States mail, first class postage prepaid, 
addressed as follows:

Jerry L. Jarvis, Esq. James L. Newsom, Esq.
First Union Nat'l Bank Bldg. P. 0. Box 2088
Durham, North Carolina 27701 Durham, North Carolina 27702
Robert Holleman, Esq. 
First Federal Building

W. I. thornton, Jr., Esq.
1006 Central Carolina Bank Bldg,

Durham, North Carolina 27701 Durham, North Carolina 27702
Hon. Andrew Vanore, Esq.
P. O. Box 629
Raleigh, North Carolina 27602

-36-