Response to Motion to Tax Costs

     [||f7bbbcb5-7f02-420f-a5fb-486fad5ee059||] IN THE 

SUPREME COURT OF THE UNITED STATES pnpy pe on ~ | 

  

October Term, 1970 WR sd fd 
Nar Wi Wi ed 

Nos. 281, 34° 

  

JAMES E. SWANN, et al., 

Petitioners, 

Ve 

CHARLOTTE-MECKLENBURG BOARD OF EDUCATION.     CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, 

Cross=-Petitioners, 

Vv. 

JAMES E. SWANN, et al. 

  
  

RESPONSE TO MOTION TO TAX COSTS 

  

  

WILLIAM J. WAGGONER 

WAGGONER, HASTY & KRATT 
723 Law Building 
Charlotte, North Carolina 

Attorneys for Respondents and 

Cross-Petitioners 

      
    
 



      

IN THE 

SUPREME COURT OF THE UNITED STATES 

October Term, 1970 

Nos. 281, 349 

  

JAMES E. SWANN, et al., 

Petitioners, 

Yo 

CHARLOTTE~-MECKLENBURG BOARD OF EDUCATION. 

CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, 

Cross=Petitioners, 

Vv. 

JAMES E. SWANN, et al. 

  

RESPONSE TO MOTION TO TAX COSTS 
  

Respondents and Cross-Petitioners, the Charlotte-Mecklenburg 

Board of Education, et al., responding to Petitioners' Motion 

for an order allowing Petitioners their costs in this Court in 

No. 281 show the Court as follows: 

I. 

REASONS FOR DENYING PETITIONERS' MOTION FOR COSTS 
  

l. Petitioners are not entitled to costs as a matter 
  

Of course under Rule 57(2). 
  

Petitioners in their Motion erroneously assert that they 

are entitled to costs in No. 281 as a matter of course under 

Rule 57(2). The rule provides: 

"In cases of reversal or vacating of any judgment or 
decree by this Court, costs shall be allowed to the 
appellant or petitioner, unless otherwise ordered by 
the Court". 

The express holding of this Court in its decision of April 20 

was as follows: 

For the reasons herein set forth, the judgment of 
the Court of Appeals is affirmed as to those parts 
in which it affirmed the judgment of the District 

Court. The order of the District Court dated August 7, 
1970 is also affirmed. 

  

 



      

It is quite apparent that the Court in its holding did not 

reverse or vacate any judgment or decree of the lower courts. 

Accordingly, Rule 57(2) by express terms denies petitioners costs 

as a matter of course. 

We acknowledge that the general rule with respect to costs 

in the trial court where costs are normally awarded to the 
  

prevailing party. Ex Parte Peterson, 253 U.S. 30. The awarding 
  

of costs to the prevailing party in Mansfield C. & L. M. R. Co. 
  

v. Swan, 111 U.S. 379 was the exercise of discretion by the 

Supreme Court under the portion of the rule " . . . unless 

otherwise ordered bv the Court". 

Other authorities cited by petitioners are inapplicable. 

Newton v. Consolidated Gas Company, 265 U.S. 78 involved the 
  

question of the power of the District Court to award a bond 

premium as costs. In Rogers v. Durant, 106 U.S. 644 the Court 
  

exercised its discretionary power and split the costs between 

the parties. The propriety of the trial court in taxing the 

auditor's fees was the only issue respecting assessment of costs. 

It would therefore appear that these cases are not helpful in 

resolving the question. 

The only case cited by petitioners entitling a party to 

costs as a matter of course is St. Louis & SS. rr. BR. Co. Vv. 
  

Spiller, 275 U.S. 156 where the judgment of the lower court was 

affirmed in part and reversed in part. 

The judgment of the lower court was not reversed or vacated 

either in whole or in part in No. 281. Therefore, costs are not 

awarded as a matter of course. 

2. Equity requires the parties to bear their respective 
  

costs. 

This action was instituted in 1965 at which time the District 

Court found the school system to be in compliance with the 

Constitution. Swann vs. Charlotte-Mecklenburg Board of Education 
  

243 F. Supp. 667 (1965). The holding of the District Court was 

  

 



  

approved by the United States Court of Appeals for the Fourth 

| Circuit in 1966 in Swann v. Charlotte-Mecklenburg Board of 
  

Education, 369 ». 24, 29. In a concurring opinion, Circuit 
  

Judges Sobeloff and Bell restated: 

"This is far from suggesting that children 
are to be uprooted arbitrarily and bused 

against their will to distant places merely 
to place them with children of the other 
Xace . a a" 

On September 6, 1968, Petitioners and Cross-Respondents 

filed their motion for further relief which resulted in the 

entry of the District Court's order of April 23, 1969. In that 

order, the District Court expressly found that the Board had 

operated in good faith pursuant to the "general understanding 

of 1965 about the law regarding desegregation" and concluded: 

3 They have achieved a degree and volume of 
desegregation of schools apparently unsurpassed 

in these parts, and have exceeded the performance 
of any school board whose actions have been 
reviewed in appellate court decisions. The 
Charlotte-Mecklenburg schools in many respects 
are models for others." 

In the same April 23, 1969, order, the District Court 

found there was no racial discrimination or inequality with 

reference to the use of federal funds or special aid to the 

disadvantaged, use of mobile classrooms, the quality of school 

buildings and equipment, coaching of athletics, parent-teacher 

~ association contributions and activities, school fees, school 

lunches, library books, elective courses, individual evaluation 

of students and gerrymandering. 

As indicated above, the good faith administration of the 

Charlotte-Mecklenburg schools was accomplished under express 

authorization and approval of a District Court which held: 

"As a general proposition, it is undoubtedly 
true that one could deliberately sit down 
with the purpose in mind to change lines in 
order to increase mixing of the races and 
accomplish the same with some degree of success. 
I know of no such duty upon either the School 
Board or the District Court. The question is 
not whether zones can be gerrymandered for the 
assumed good purpose of racial mixing, but 
whether gerrymandering occurred for the 
unconstitutional purpose of preventing the 
mixing of the races." Swann v. Charlotte- 
Mecklenburg Board of Education, 243 F. Supp. 

  

  

667 (1965).       
 



      

In affirming, the Court of Appeals for the Pourth Circuit held: 

". « +. S80 long as the boundaries are not drawn 
for the purpose of maintaining racial segregation, 
the School Board is under no constitutional 
requirement that it effectively and completely 
counteract all the effects of segregated housing 
patterns." Swann v. Charlotte-Mecklenburg Board 
Of Education, 369 F. 28. 29 (1966). 
  

  

As found by the District Court, this School Board operated 

pursuant to the understanding of the law. It was not alone as 

evidenced by the many conflicting and inconsistent opinions of 

the various district courts, courts of appeal and the Supreme 

Court. 

Notwithstanding the express holdings of the District Court 

and the Court of Appeals in 1965 and 1966, the School Board 

offered a plan for desegregation for the school year 1969-70. 

On August 15, 1969, the District Court found that the Board had 

acknowledged its affirmative duty to desegregate pupils, teachers 

principals, and staff members at the earliest possible date and 

had dramatically exceeded its goal in desegregating former all 
  

black faculties. The plan for the 1969-70 school year exceeded 

the desegregation accomplished by any major urban area in this 

nation. 

On February 5, 1970, the School Board offered a drastic 

restructuring of attendance lines which accomplished a remarkable 

degree of desegregation, placing 68 percent of the black students 

in predominantly white schools. This offered performance so 

far exceeded the performance of any other major urban school 

Scien that it was then inconceivable that the effects of the 

former "dual system" would not be removed by such a Wh, of 

The District Court engrafted upon this plan the feature of 

satellite zones and resulting extensive long distance cross busin 

thereby resulting in the most sweeping and extreme desegregation 

order entered by any district court affecting a major urban area 

Of this nation. 

  

1/ Compare the percentage of blacks in predominately white school 
in the fall of 1970: New York City - 16.3%; los Angeles -~ 5.9%; 
Chicago - 3%; Detroit - 5.8%; Philadelphia - 7.4%; Baltimore =- 
9.4%; Cleveland - 4.2%; Washington, D.C. - 1.2%; Milwaukee - 12.2 
Boston - 18%; San Francisco - 14.2%... Source: New York Times, 
June 17, 1971. Was there any reasonable basis to believe that 

a performance of 68% would fail to meet constitutional requirement 
Should Charlotte-Mecklenburg foresee it would be required to reac 
100 percentile? 

-d] 

Js 

Ul
   
 



  
    

The Court of Appeals for the Fourth Circuit, on appeal, by 

opinion dated May 26, 1970, {431 P. 24. 138) partially vacated 

the judgment of the District Court and remanded the case for 

further proceedings, primarily with reference to the question of | 

"reasonableness" as expressed in the opinion of the Court of 

Appeals. 

On August 3, 1970, the Distvict Court held that its order 

of February 5 was reasonable and ordered implementation thereof. 

The Supreme Court of the United States, in holding the 

District Court's order in compliance with the Constitution, 

stated: 

"These cases present us with a problem of defining 
in more precise terms than heretofore the scope 
of the duty of school authorities and district 
courts in implementing Brown I and the mandate to 
eliminate dual systems and establish unitary 
systems at once. Meanwhile, district courts 
and courts of appeal have struggled in hundreds 
of cases with the multitude and variety of 
problems under this Court's general directive. 
Understandably, in an area of evolving remedies, 
those courts had to improvise and experiment 
without detailed or specific guidelines. This 
Court, in Brown I, appropriately dealt with the 
large constitutional principle; other federal 
courts had to grapple with the flinty, intractable 
realities of day-to-day implementation of these 
constitutional commands. Their efforts of necessity 
embraced a process of 'trial and error' and our 
effort to formulate guidelines must take into 
account their experience." Swann v. Charlotte- 
Mecklenburg Board of Education, Supreme Court of 
the United States, Nos. 281 and 349, Apr. 20, 1971, 

at v.24 

  

  

In Northcross Vv, Board. of Réducaltion, 396 U.S. 19 (1969), 
  

the Chief Justice of the United States Supreme Court recognized 

that it was high time that the Supreme Court came to grips with 

the many problems resulting from the unsettled state of the law 

with reference to the creation of a unitary system. These 

acknowledgments by the Supreme Court so clearly demonstrate the 

confused state of the law with reference to desegregation, 

district courts, courts of appeal and school boards did not and 

could not know the obligations imposed by the Constitution. 

Notwithstanding the Board of Education could not have known 

what was required of it, it operated its system in good faith 

  

  

 



  

  

    

pursuant to the directives of the federal courts and exceeded 

the performance of any school board whose actions had been 

reviewed in the appellate court decisions. To award costs 

against this school system, which has borne its costs in No. 349, 

would clearly be contrary to the principles of equity, particular 

where it is believed that the plaintiffs have not advanced and | 

are not expected to advance any of these costs. 

These cases have been used by the Supreme Court of the 

United States as a vehicle upon which to express the public 

policy of this nation on a matter of substantial constitutional 

importance. In implementing the sweeping desegregation order 

of the District Court, this school system has experienced 

enormous expense. To further burden the Charlotte-Mecklenburg 

Board of Education with additional expenses on this national 

question will further impinge the educational process. 

WHEREFORE, the Charlotte-Mecklenburg Board of Education, 

et al, respectfully move the Court to deny petitioners motion 

to. tax costs in No. 281. 

This the 6th day of August, 1971. 

Taw 

L 

o 

  

William J. Waggoner / 
Waggoner, Hasty & Kratt 
723 Law Building 
Charlotte, North Carolina 
Attorneys for Respondents and 

Cross—-Petitioners 

  

ly 

 



      

CERTIFICATE OF SERVICE 
  

This is to certify that I have served copies of the fore- 

going Response to Motion to Tax Costs upon the following parties 

by depositing same in the United States mail, postage prepaid, 

first class, addressed to said parties as follows: 

Julius L. Chambers 
Chambers, Stein, Ferguson & Lanning 
White House Inn 

Charlotte, North Carolina 

James M. Nabrit, III 
10 Columbus Circle 
New York, New York 

This the 6th day of August, 1971. 

  

William J. Waggoner [||f7bbbcb5-7f02-420f-a5fb-486fad5ee059||]