Bernard v. Gulf Oil Company Reply Brief for Appellants

    In The

Initph i ’tatw QInurt of Appeals
For the Fourth C ircuit

No. 9630

W arren H. W heeler, e t  al, and 
C. C. Spaulding, III, et al,

Appellants,
—v.—-

D urham C ity Board of Education, a body politic in 
Durham, North Carolina,

A ppel le e .

A ppeal From the U nited States D istrict C ourt for the 
M iddle District of North Carolina

BRIEF OF APPELLEE

M arshall T . Spears 
Spears, Spears & Barnes 
Central Carolina Bank Bldg. 
Durham, North Carolina

Jerry L. Jarvis 
W atkins & Jarvis 
First Union Nat. Bank Bldg. 
Durham, North Carolina

C oun se l  f o r  A pp e l le e s



INDEX

PAGE

Statement o£ the Case on Appeal _________________________ 1

Questions Presented _________ __________________ _________ 3

Statement of Facts _________________ _____ _______________  3

Argument:

1. Whether the injunctive order of the District Court, which
disapproved the Board’s proposed desegregation plan, pro­
vided the Plaintiffs with appropriate relief by ordering the 
assignment of pupils on the basis of the absolute free choice 
of the parents and pupils, until such time as the Board pre­
sents and, with the approval of the Court, adopts some other 
plan for the elimination of racial discrimination in the opera­
tion of the schools of the C ity of Durham? _____________  8

2. Whether the District Court abused its discretion by con­
tinuing in effect its general injunctive order while deferring 
consideration of a request for specific injunctive relief with 
respect to the hiring and placement of teachers until after 
the close of the 1964-65 school term and requiring the Board, 
in the meantime, to make a detailed study of the adminis­
trative and other problems involved? ___________________ 17

3. Whether the District Court abused its discretion by con­
tinuing in effect its general injunctive order while denying 
specific injunctive relief with respect to the size and location 
of new school facilities, for the reason that these are con­
siderations initially for the School Board, when the Court 
had the assurance of the Board that its school construction 
program will not be designed to perpetuate, maintain, or
support segregation? ________________________________  20

Conclusion__ _____ _________________________ _______ ___ 24

i



TABLE OF CITATIONS

PAGE

Board of Public Instruction of Duval County v. Braxton,
326 F. 2d 616 (5th Cir. 1964), cert, denied, 377 U.S.
924 (1964) _________________________________________ 21

Brown v. Board of Education, 349 U.S. 294 (1955) __________  20

Buckner v. County School Board of Greene County, Va.,
332 F. 2d 452 (4th Cir. 1964) _________________________ 9

Calhoun v. Latimer, 321 F. 2d 302 (5th Cir. 1962) __________  19

Downs v. Board of Education of Kansas C ity, 336 F. 2d
988, 997 (10th Cir. 1964) ____________________________ 18

Jeffers v. W hitley, 309 F. 2d 621 (4th Cir. 1962) _______  9, 11, 17

Mapp v. Board of Education of Chattanooga, 319 F. 2d 571
(6th Cir. 1963) ________________________________  18,19

Northcross v. Board of Education of C ity of Memphis, 302
F. 2d 818 (6th Cir. 1962) _____________________________ 19

Wheeler v. Durham City Board of Education, 210 F. Supp.
839 (M .D .N .C . 1962) _________   3

Wheeler v. Durham C ity Board of Education, 309 F. 2d
630 (4th Cir. 1962) __________________________4 ,9 ,1 1 ,1 7

Wheeler v. Durham C ity Board of Education, 326 F. 2d
759 (4th Cir. 1964) ________________________________  5

u



IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA 

DURHAM DIVISION

W arren H. W heeler, a Minor, by J, H. )
W heeler, his father and next friend, e t  al., )

v- )
D urham C ity Board of Education, a )
body politic in Durham County, North )
Carolina, )

Defendant. )
*  *  *  ^

C. C. Spaulding, III, a Minor, by C. C. )
Spaulding, Jr., his father and next friend, ) 
e t  al., )

Plaintiffs, )
v - )

D urham C ity Board of Education, a )
body politic in Durham County, North )
Carolina, )

Defendant. )

A ppeal From the U nited States D istrict C ourt for the 
M iddle D istrict of N orth C arolina, D urham D ivision

APPELLEE’S BRIEF

Statement of the Case On Appeal

This is an appeal by the Plaintiffs, Negro school children and 
parents, from an interlocutory Order (Appellant’s Appendix pp. 
113a-l 19a) entered on August 3, 1964, which (1) disapproved the 
School Board’s proposed Desegregation Plan and granted all pupils 
assigned to any school in the Durham City School System the abso­



2

lute right to attend the school of their choice during the 1964-65 
school year. The Order is to remain in effect until the School Board 
presents and, with the approval of the Court, adopts some other plan 
for the elimination of racial discrimination in the operation of the 
schools of the C ity of Durham.

If applications for reassignment should result in a particular school 
having a pupil capacity beyond its ability to afford an effective pro­
gram of education, the Order provides that the School Board may 
apply to the Court, upon five days notice to Counsel for the Plaintiffs, 
for an order permitting the transfer of certain applicants to another 
school on a non-discriminatory basis, with enrollment in a particular 
school to be determined on a first come - first served basis, regardless 
of race.

Consideration of Plaintiffs’ request for injunctive relief with re­
spect to the hiring and placement of teachers and other professional 
personnel in the Durham C ity School System was deferred until after 
the close of the 1964-65 school term, during which time the Order 
requires the Board to make a detailed study of administrative and 
other problems involved. The Order further provided that the in­
junctive relief requested with respect to the size and location of new 
school facilities was denied for the reason that these are considerations 
which are initially for the defendant Board.

In an addendum to the Order (Appellant’s Appendix p. 119a), 
Counsel were reminded that the provisions of Paragraph 3 of the 
District Court’s Order of January 2, 1963, remained in effect. Para­
graph 3 of the Order on Mandate dated January 2, 1963, restrains 
and enjoins the School Board from any and all acts that regulate or 
affect the assignment of pupils to any public school under their super­
vision, management, or control on the basis of race or color. (Appel­
lee’s Appendix p. 2)

To the entry of the aforementioned order, the Plaintiffs filed No­
tice of Appeal on August 27, 1964.



3

Questions Presented

1. Whether the injunctive order of the District Court, which dis­
approved the Board’s proposed desegregation plan, provided the Plain­
tiffs with appropriate relief by ordering the assignment of pupils on 
the basis of the absolute free choice of the parents and pupils, until 
such time as the Board presents and, with the approval of the Court, 
adopts some other plan for the elimination of racial discrimination 
in the operation of the schools of the City of Durham?

2. Whether the District Court abused its discretion by continuing 
in effect its general injunctive order while deferring consideration of 
a request for specific injunctive relief with respect to the hiring and 
placement of teachers until after the close of the 1964-65 school term 
and requiring the Board, in the meantime, to make a detailed study 
of the administrative and other problems involved?

3. Whether the District Court abused its discretion by continuing 
in effect its general injunctive order while denying specific injunctive 
relief with respect to the size and location of new school facilities, 
for the reason that these are considerations initially for the School 
Board, when the Court had the assurance of the Board that its school 
construction program will not be designed to perpetuate, maintain, 
or support segregation?

Statement of Facts

The Plaintiffs in these consolidated actions originally invoked the 
jurisdiction of the United States District Court for the M iddle Dis­
trict of North Carolina under the Civil Rights Act (28 U .S.C , 1343 
( 3 ) ) ,  in 1960. On July 20, 1961, the District Court directed the 
School Board to reconsider applications for reassignment of pupils 
who had exhausted their administrative remedies. Subsequently, on 
April 11, 1962, the District Court entered final judgment denying 
the Plaintiffs the relief prayed for and dismissing the complaints. The 
opinion of the District Court is reported at 210 F. Supp. 839 
(M .D .N .C . 1962). The Plaintiffs appealed to the United States



4

Court of Appeals for the Fourth Circuit. The opinion of the Court 
of Appeals, filed October 12, 1962, and recorded at 309 F 2d 630 
(4th Cir. 1962), reversed the judgment of the District Court. By 
mandate issued on October 12, 1962, the cause was remanded to the 
District Court for further proceedings consistent with the opinion 
of the Court of Appeals.

Thereafter, on January 2, 1963, Edwin M . Stanley, Chief District 
Judge, issued an Order on Mandate (Appellee’s Appendix pp. 1-4) 
which:

(a) Vacated the judgment entered on April 11, 1962;

(b) Directed the Board to reassign each minor plaintiff to the 
particular school requested;

(c) Restrained and enjoined the Board and its agents, servants, 
and employees from any and all acts that regulate or affect the assign­
ment of pupils to any public schools under their supervision, man­
agement, or control on the basis of race or color;

(d) Ordered that the restraining order and injunction should re­
main in effect until such time as the Board had adopted, with the ap­
proval of the District Court, a plan for the complete elimination of 
racial discrimination in the operation of the schools under its super­
vision; and

(e) Ordered that unless the Board submitted a suitable plan for ter­
minating racial discrimination in the Durham C ity School System 
not later than M ay 1, 1963, and unless the plan was approved by the 
Court not later than July 1, 1963, every child enrolled for the school 
year 1963-64 would have complete freedom to enroll or transfer to a 
school attended solely or largely by pupils of another race.

On April 19, 1963, the Board submitted a Plan for Further De­
segregation of the Durham City Schools, but the plan was disap­
proved by the District Court, and on July 24, 1963, Judge Stanley



5

entered an order governing assignments and transfers within the 
school system for the 1963-64 school year. Under the Court’s Order, 
parents of all children enrolled in the elementary and junior high 
schools were notified that they had the absolute right to attend any 
school of their choice teaching the grade to which their child had 
been assigned. However, all high school pupils were required, for the 
school year 1963-64, to attend the high school to which they have 
previously been assigned by the Board. Not later than M ay 1, 1964, 
the Board was required to submit to the Court a plan for the total 
and complete desegregation of the Durham C ity School System for 
the 1964-65 and subsequent school year.

To the entry of the aforementioned Order, covering assignments 
for the 1963-64 school year, the School Board appealed, and on Jan­
uary 27, 1964, this Court affirmed the District Court’s order as “an 
appropriate interim decree”. ( W hee l e r  v. Durham C ity  Board o f  Edu­
cation, 326 F. 2d 759, 760).

Pursuant to Judge Stanley’s Order, on April 28, 1964, the School 
Board filed its Plan for the Desegregation of the Durham C ity Schools 
for the 1964-65 and subsequent school years. (Appellant’s Appendix 
pp. la-8a). Under the Board’s Plan, the assignment of pupils was 
to be made on the following basis:

(a) Pupils entering the school system for the first time would be 
initially assigned to the school located in the attendance area in which 
the pupil was residing.

(b) Elementary and junior high school pupils who had been en­
rolled in a particular school, under the “freedom of choice” plan of 
assignments, during the 1963-64 school year were initially reassigned 
to the same school for the 1964-65 school year.

(c) Pupils who had satisfactorily completed the course of instruc­
tion at the elementary school where they were in attendance during 
the 1963-64 school year were to be initially assigned to the junior



6

high school serving the geographic attendance area in which they 
were residing.

(d) Pupils who had satisfactorily completed the course of instruc­
tion at the junior high school where they were in attendance during 
the 1963-64 school year were to be initially assigned to the high 
school serving the graduates of such junior high school.

(e) Pupils who had attended high school during the 1963-64 school 
year and who had not completed the course of instruction at said 
school were to be initially reassigned to the same school for the 1964- 
65 school year.

(f) Each pupil in the school system who was thus assigned had 
the right to transfer to the school of his choice, as a matter of course, 
by making timely application, until the maximum capacity per class 
room had been attained, with priority being determined by the order 
of receipt of such requests for reassignment.

The Plaintiffs objected to the Board’s Plan of April 28, 1964, and 
a full evidentiary hearing was held on July 9, 1964, in the District 
Court. Subsequently, the parties filed suggested Findings of Fact and 
Conclusions of Law, and on July 31, 1964, the District Court heard 
oral arguments. A t that time the Court expressed its disapproval of 
the Board’s Plan as an adequate plan for the total and complete de­
segregation of the Durham City School System; discussed with coun­
sel the relief which might be appropriate; and invited discussion and 
criticism from counsel as to each provision of a tentative order. (Ap­
pellee’s Appendix pp. 47-60).

On August 3, 1964, the Court entered an Order substantially iden­
tical to the tentative order proposed by the Court on July 31, 1964. 
It disapproved the Board’s plan for the stated reason that the Court 
was of the opinion that the school zone boundaries “in some instances” 
had been drawn along racial residential lines. (Appellant’s Appendix 
pp. 113 a, 114 a ) . A t the same time, the Order recognized that the 
Board of Education had made substantial progress toward desegregat­



7

ing the Durham C ity School System, and that the plan submitted by 
the Board for the 1964-65 school year provided for further desegrega­
tion of the System by the rearrangement of school attendance zones. 
(Appellant’s Appendix p. 114 a)

The Court then decreed that assignments for the 1964-65 school 
year be made on the following basis:

(a) A ll pupils in the Durham City School System would be in­
itially assigned in accordance with the plan submitted by the de­
fendant Board on April 28, 1964.

(b) Not later than August 10, 1964, the Board was required to 
give appropriate notice to the parents or guardians of all pupils in 
the system that they had the absolute right, subject only to exceptions 
to be made by the Court in the event of overcrowding, to attend the 
school of their choice during the 1964-65 school year by filing an 
application for reassignment with the Board within a specified time.

(c) Assignments and reassignments will continue to be made on 
this free choice basis until such time as the Board presents and, with 
the approval of the Court, adopts some other plan for the elimination 
of racial discrimination in the operation of schools in the C ity of 
Durham.

The result of the incorporation of certain provisions of the Board’s 
proposed plan into the Court’s Order is to effect initial assignments 
in the following manner:

(1) A ll pupils enrolling in the Durham City School System for 
the first time are initially assigned to the school located in the geo­
graphical attendance area where the pupil resides;

(2) A ll pupils who have completed the course of instruction at 
an elementary or junior high school are initially assigned to the junior 
high school or high school in the geographical attendance area where 
the pupil resides;



8

(3) A ll other pupils are initially assigned to the school which 
they chose to attend during the preceding school year under the 
“free choice” method of assignments then in effect; and

(4) A t the time pupils are initially assigned pursuant to the fore­
going provisions of the order, they are notified of their right, if dis­
satisfied with their initial assignment, to attend another school of 
their free choice, by filing application for reassignment with the 
School Board within thirty days.

Argument

I.

WHETHER THE INJUNCTIVE ORDER OF THE DIS­
TRICT COURT, W H ICH  DISAPPROVED THE BOARD’S 
PROPOSED DESEGREGATION PLAN, PROVIDED THE 
PLAINTIFFS W ITH  APPROPRIATE RELIEF BY ORDERING 
THE ASSIGNM ENT OF PUPILS ON THE BASIS OF THE 
ABSOLUTE FREE CHOICE OF THE PARENTS AND PU­
PILS, UNTIL SUCH TIME AS THE BOARD PRESENTS 
AND, W ITH  THE APPROVAL OF THE COURT, ADOPTS 
SOME OTHER PLAN FOR THE ELIMINATION OF RA­
CIAL DISCRIMINATION IN THE OPERATION OF THE 
SCHOOLS OF THE CITY OF D URHAM ?

Although the District Court found that the Durham C ity Board 
of Education had made substantial progress towards desegrating the 
Durham C ity School System, and that the Board’s Plan for the 1964- 
65 school year provided for further desegregation of the school sys­
tem, the Court was of the opinion that the school zone boundaries 
“in some instances” had been drawn along racial residential lines and, 
therefore, disapproved the Board’s Plan as submitted. No appeal has 
been taken from that part of the decree which disapproved of the 
plan, and the only question presented by the Plaintiffs’ appeal is 
whether or not the judicial relief granted to the Plaintiffs is appro­
priate.



9

Where the District Court finds that racial considerations have 
played any part in determining the assignments or reassignments of 
pupils, the right of the Plaintiffs to obtain injunctive relief for them­
selves and for the class they represent is clear beyond any doubt. 
Buckner  v. C oun ty  S ch oo l  Board o f  G reen e  C o u n t y , Va., 332 F. 2d 
452 (4th Cir. 1964). As stated by this Court in the case of J e f f e r s  v. 
W hit ley ,  309 F. 2d 621, 629 (4th Cir. 1962):

“In these circumstances, the duty of the Court as a court of 
equity, is traditionally discharged through injunctive orders.

“W e conclude, therefore, that the appellants . . . are entitled 
to individual relief . . . .

■M, M , M , Jfc
TT •7t* ■7T •W

“On behalf of others, similarly situated, the appellants are not 
entitled to an order requiring the School Board to effect a gen­
eral intermixture of the races in the schools. They are entitled 
to an order enjoining the School Board from refusing admission 
to any school of any pupil because of the pupil’s race.”

When these present actions were before this Court on the first ap­
peal, W hee le r  v. Durham C ity  Board o f  Education, 309 F. 2d 630 
(4th Cir. 1962), the Court said:

“ (T)hese plaintiffs are entitled to an order for their admission 
for the 1962-63 school year to the schools for which they have 
applied, to a declaratory judgment that the defendants are ad­
ministering the North Carolina Pupil Enrollment Act in an un­
constitutional manner, and to an injunction against the con­
tinuance of the Board’s discriminatory practices. The injunction 
shall control all future assignment of pupils to schools unless and 
until the defendants submit to the District Court a suitable plan 
for ending the existing discrimination.”

Pursant to this Mandate, on January 2, 1963, the District Court



10

entered its Order on Mandate incorporating the prescribed injunctive 
provisions. Paragraph 3 of that order reads as follows:

“It is further Ordered that the defendants, their agents, ser­
vants and employees are restrained and enjoined from any and 
all acts that regulate or affect the assignment of pupils to any 
public schools under their supervision, management or control 
on the basis of race or color. The defendants are specifically re­
strained and enjoined from (a) using any method of determining 
the placement of pupils in school on the basis of racial consid­
erations when pupils first enter the school system, when pupils 
are promoted from elementary school to junior high school, or 
from junior high school to high school, or when pupils change 
their residences from one part of the area served by the school 
system to another part of the school system’s area; (b) using any 
separate racial attendance area maps or zones or their equivalent 
in determining the placement of pupils in schools; (c) from re­
quiring any applicants for transfers to submit to any futile, bur­
densome, or discriminatory administrative procedures in order to 
obtain such transfers, including (but not limited to) the use of 
any criteria or standards for determining such requests which are 
not generally and uniformly used in assigning all pupils, and 
the requirement of administrative hearings or other procedures 
not uniformly applied in assigning pupils; and (d ) using any 
standards relating to residence, academic achievement, overcrowd­
ing or otherwise in determining such transfer requests which are 
not used in determining initial assignments of all pupils.” 
(Appellee’s Appendix pp. 2, 3 ).

The District Court’s Order, from which the Plaintiffs are presently 
appealing, specifically incorporates and continues in effect those in­
junctive provisions. (Appellant’s Appendix p. 119 a ) .

In addition to the injunction, this Court has repeatedly stated the 
further judicial relief that must be granted to school children pending 
the submission by a School Board of a suitable plan for nondiscrim­



11

inatory administration of the school system. When these cases were 
first before this Court in W hee le r  v. Durham City Board o f  Educa­
tion, 309 F. 2d 630 (4th Cir. 1962) , the Court stated:

“W e find it unnecessary to burden the opinion with these 
details, for in J e f f e r s  v . W hit l ey ,  No. 8593, Fourth Circuit, June 
1962, decided today, we have declared the judicial relief that must 
be granted to school children who have been initially assigned on 
a racial basis.”

The declarations of this Court in J e f f e r s  v. W hit ley ,  309 F. 2d 621 
(4th Cir. 1962) referred to in the W hee le r  case are clear and un­
ambiguous. It is there stated:

“So long as the School Board follows its practice of racial as­
signments, the injunctive order should require that it freely and 
readily grant all requests for transfer or initial assignment to a 
school attended solely or largely by pupils of the other race. T he  
order sh ou ld  prohibit th e  S choo l  Board c ond i t ion in g  its g ran t o f  
any su ch  r equ e s t ed  transfer up on  th e  app licant’s subm iss ion  to 
fu t i le ,  bu rd en som e ,  or d iscr im inatory  administra tive p ro cedu res .  
T h e  order sh ou ld  fu r th er  p rov id e  that i f  t h e  S ch oo l  Board d o es  
not adop t s om e  other non -discr im inatory  plan, it shall in form  
pupils and their parents that th e re  is a r igh t  o f  f r e e  c h o i c e  at th e  
t im e  o f  initial a s s ignm en t  and at su ch  reasonable intervals th e re ­
after as may be d e t e rm in ed  by th e  Board, w i th  th e  approval o f  
th e  District Court. How and when such information shall be dis­
seminated may be determined by the District Court after re­
ceiving the suggestions of the parties.

“The injunctive order may provide for its modification upon 
application of the School Board to the extent that modification 
may be required to enable the Board to solve and eliminate any 
administrative difficulty that may arise. It may contain other 
provisions not inconsistent with this opinion.

"T h e  in jun c t iv e  order sh ou ld  r emain in e f f e c t  until th e S ch oo l



12

Board, i f  it e l e c t s  to do  so, p r e s en t s  and, w i th  th e  approval o f  th e  
District Court, adop ts s om e  o th er  plan fo r  th e  e l im ination o f  
racial d iscr im ination in th e  operation o f  th e  s ch o o l s  . . . (Em­
phasis added.)

Judge Stanley’s comments at the hearing on July 9, 1964, indicate 
that this particular form of relief was granted pursuant to the direc­
tions of this Court in the prior appeals and in f e f f e r s  v. W hit ley .  In 
his discussion with counsel he asked:

“W hat can the Court do except approve a plan or, if no plan 
is submitted that can be approved, order that the Board with­
out regard to the initial summons—whether it’s the school they 
attended previously or in zones or however it is—that all children 
have the freedom to go to any school they want to? I do not 
understand that the Court can come up and take a map and 
draw lines and prepare its own plan and take over the administra­
tion of the school system.” (Appellee’s Appendix, p, 5) .

#  #  #  *

“W ell, what’s the suggestion of counsel now for both sides 
as to the future handling of this matter? I would like to make 
some reasonably early disposition of it. I want to give you an op­
portunity to file your requests for findings and conclusions and 
any type of relief that should be entered.

“I would like to just make this one observation as to the type 
of relief. I mentioned I believe in my comments here before, and 
I made some casual reference to it here this morning, that I 
thought—well, when it was before the Court of Appeals, they 
said, W e  find it unnecessary to burden this opinion with details’, 
that is, as to the relief to be granted, ‘for in J e f f e r s  v er su s  W hit­
l e y ,  decided today, we have declared the judicial relief that must 
be granted to school children who had been initially assigned on 
a racial basis.’



13

“Now when this matter was decided by the Court of Appeals 
in January of this year, they again refer to J e f f e r s  v er su s  W hit l ey  
as to how the matter would be handled; and the Court in J e f f e r s  
v er su s  W hit l e y  said, ‘so long as the School Board follows its prac­
tice of racial assignments, the injunctive order should require 
that it freely and readily grant all requests for transfer or initial 
assignment. The order should prohibit the School Board condi­
tioning its grant of any request for transfer upon the applicant’s 
submission to futile and burdensome administrative procedures. 
The order should further provide that if the Board does not adopt 
some other nondiscriminatory plan, it shall inform pupils and 
their parents that there is a right of free choice at the time of 
initial assignment and at such reasonable intervals thereafter as 
may be determined by the Board with the approval of the Dis­
trict Court. How and when such information shall be dissemi­
nated may be determined by the District Court after receiving 
the suggestions of the parties.

“ ‘The injunctive order may provide for its modification upon 
application of the School Board to the extent that modification 
may be required to enable the Board to solve and eliminate any 
administrative difficulty that may arise. It may contain other 
provisions not inconsistent with this opinion.’

“Now I simply bring that up, without deciding it now at all, 
because I want counsel to assist me some in that area. I think I 
am generally familiar with the pronouncement of the Courts in 
this area. I have tried to read certainly out of our Court of Ap­
peals and out of the Supreme Court of the United States, and I 
am just simply not mindful of any decision of any Court any­
where that has said that the Court must take over the administra­
tion of the school system and must sit down and draw lines and 
say that every child living in this area will have to go to this 
school and everyone here has to go to this school for elementary, 
and then draw up the other lines and so forth.



14

“Now its seems to me, without deciding the matter, that the 
School Board has either one or two choices; it has to propose a 
plan that is nondiscriminatory in nature, and generally that plan 
has to be a plan that would be reasonable if every child living in 
the area were of the same race and they were attempting to ad­
minister a school program without regard to race being used as 
a factor in any way, directly or indirectly. But if the Board for 
any reason doesn’t come up with such a plan that the Court can 
say is completely nondiscriminatory, then the alternative is that 
every child is entitled to go to the school of his choice and en­
titled to be notified of that until such time as such plan is con­
ceived.

“Now, that’s what the Court said should be done in J e f f e r s  
ver su s  W hit l ey .  It’s what the Court said in this very case, that 
must be done in this case, and it’s what the Court of Appeals re­
stated in its opinion in January of this year by referring to J e f f e r s  
ver su s  W hit ley .  Now if there is some other line of decisions to 
be followed, I would like to know why this is not the law in this 
case, but that there is some other law.

“I understood you to say that you weren’t confined to those 
two choices here before. The matter was not pursued and, as I 
say, I’m not inviting a discussion of it now. I only made these 
remarks as an aid and guidance to counsel when they are pre­
paring their briefs.” (Appellee’s Appendix pp. 44-46).

When the matter again came on for hearing on July 31, 1964, 
Judge Stanley, in the interest of time, had prepared a tentative order 
which he discussed with counsel for all parties, and which, with in­
significant changes, became the Order presently appealed from. The. 
paragraph by paragraph comments of Judge Stanley with reference 
to this order are printed at length in Appellee’s Appendix, and are 
indexed as to subject matter. (Appellee’s Appendix pp. 47-60).

W ith reference to the recognition that substantial progress had 
been made, the Court stated:



15

“I think there has been substantial progress made as referred 
to in the second paragraph, and third, that this thing not be 
thrown completely open and go back to the old standards but 
that we build on the progress that has been made, and that these 
students be initially assigned to all schools this year in accordance 
with the plan proposed by the defendant. That means that stu­
dents attending all these schools last year will be assigned to 
those schools, and the balance of them will be assigned. Now if 
that needs to have some amplification, of course, it’s quite all 
right; but I assume that all children have been assigned. But 
it is to carry forward the progress that has been made and we 
use that as a floor.” (Appellee’s Appendix p. 49).

W ith reference to the continuing application of the Order (Para­
graph 7 of the final order), the Court stated:

“I don’t see what purpose it will serve going through this 
every summer. W e are going to take the progress we have built 
and then couple that with an absolute freedom of choice for 
every child in the Durham City School System, and then put the 
burden on the Defendant School Board, and if they can’t ad­
minister that system, they are going to have to come in with a 
plan; and then that will stand in effect until they do come in 
with a plan that does take care of it. There has to be some re­
wording of this number six (paragraph 7 of final order) I think 
that second sentence in number six should be, ‘unless and until 
such a plan has been submitted and approved’ by the Board, 
that then the Board shall at the end of each school term hereafter 
do so and so, so as to make it perpetual.” (Appellee’s Appendix 
P-50) .

A t that point M r. Nabrit, of counsel for the Plaintiffs, asked 
Judge Stanley if he intended not to order the School Board to come in 
with new zones, to which question the Court replied:

“W ell, it is intended to do two things: It is to build on the 
plan that has been submitted, and that has to be incorporated



16

into this by reference; secondly, if you keep that plan in effect 
together with complete freedom of choice and free and easy ad­
ministrative techniques to get applications and to be transferred 
simply on the asking, and that sort of thing, unless and until 
the Board does come in—Now as I read J e f f e r s  v er su s  W hit l e y ,  
and as I read in this case here from the Court of Appeals, every­
thing that they have said on it, they say that you should—until 
they do come in and submit a plan, that you should give them 
that free choice. I think we actually go one step further here. I 
think that we build on what I think is a very substantial improve­
ment and we use that as a floor, rather than those strictly neigh­
borhood schools, in a complete desegregated school system. A ll 
of those who have heretofore exercised their choice, they are auto­
matically put in that school, and I think for the time being—of 
course, all of these orders are interlocutory, and if you want to 
come back a year or two years from now and say, ‘Now we 
think that this defendant should be required to come in with a 
plan, and this thing is not working as it should,’ of course, you 
can always have that chance to come back.

“But this is intended, and I think is in complete, one-hundred- 
percent compliance, plus some, with what the Court of Appeals 
has said in this case and what they said in this case by reference 
to J e f f e r s  v er su s  W h i t l e y .” (Appellee’s Appendix p. 51).

As the members of this Court will recall, Judge Stanley employed 
the free choice basis for assignments as to elementary and junior high 
schools in the Durham City School System for the 1963-64 school 
year, but ordered that assignments to the senior high schools be made 
on the same basis as previous years. The Board of Education appealed 
from that order, and this Court affirmed his decision as “an appro­
priate interim decree” in its per curiam  opinion reported at 326 F. 2d 
759 (4th Cir. 1964).

Ironically, on that appeal, the Plaintiffs took the position, not only 
that such relief was appropriate, but that it was, in fact, what this



17

Court had suggested. At page 20 of Appellee’s brief in Appeal No. 
9184, it is stated:

“The trial court apparently selected the ‘free choice’ or ‘free 
transfer’ formula as a temporary expedient to enable those Negro 
pupils who desired to attend desegregated schools to do so, with­
out undertaking a complete realignment of the initial assign­
ment system. This expedient had been adopted by District 
Judges W right and Ellis on a temporary basis pending realign­
ment of dual zones in the New Orleans case. Bush  v. Orleans 
Parish S ch oo l  Board, 308 h. 2d 491 (5th Cir. 1962). More im­
portantly this course had been suggested by this Court in J e f f e r s  
v. W hit ley ,  209 F. 2d 621, 629 (4th Cir. 1962), where the court 
directed that ‘So long as the School Board follows its practice of 
racial assignments, the injunctive order should require that it 
freely and readily grant all requests for transfer or initial assign­
ment to a school attended solely or largely by pupils of the other 
race.’ In the prior appeal in the present case, this Court referred 
to the contemporaneous J e f f e r s  opinion as setting out ‘the judicial 
relief that must be granted to school children who have initially 
assigned on a racial basis.’ W hee le r  v. Durham C ity  Board o f
Education, 309 F. 2d 630, 633 (4th Cir. 1962).”

It is difficult to imagine how the present order of the District Court, 
from which the Plaintiffs have appealed, could more precisely com­
ply with the mandates from this Court in W hee le r  v. Durham City  
Board o f  Education, 309 F. 2d 630 (4th Cir. 1962) and J e f f e r s  v. 
W hit ley ,  309 F. 2d 621 (4th Cir. 1962). Furthermore, in approving 
the freedom of choice order governing assignments in this school 
system for the 1963-64 school year, this Court again indicated the 
appropriateness of this relief by referring to these decisions.

II.

WHETHER THE DISTRICT COURT ABUSED ITS DIS­
CRETION BY CONTINUING IN EFFECT ITS GENERAL 
INJUNCTIVE ORDER WHILE DEFERRING CONSIDERA-



18

TION OF A REQUEST FOR SPECIFIC INJUNCTIVE RE­
LIEF W ITH  RESPECT TO THE HIRING AND PLACEM ENT 
OF TEACHERS UNTIL AFTER THE 1964-65 SCHOOL 
TERM , AND REQUIRING THE BOARD, IN THE M EAN ­
TIM E, TO MAKE A DETAILED STUDY OF THE A D M IN ­
ISTRATIVE AND OTHER PROBLEMS INVOLVED?

Since the District Court continued its injunction against the Board 
with regard to all acts that regulate or affect the assignment of pupils, 
and required the school authorities to make a detailed study of the ad­
ministrative and other problems involved with respect to the hiring 
and placement of teachers and other professional personnel in the 
system, and to be prepared to express themselves fully with reference 
to all administrative and legal problems involved at the end of the 
1964-65 school year, the Plaintiffs’ objection to this portion of the 
Order appears to be that the Court did not take further action in this 
regard within the few days between the date of his order and the 
commencement of the 1964-65 school term.

W hile the Court did suggest that all parties be prepared to discuss 
the standing of the minor plaintiffs to question the policy employed 
by the Board in this matter, he referred counsel to decisions in the 
Fifth Circuit Court of Appeals and acknowledged that this Court 
had indicated that a complaint seeking relief from a discriminatory 
school system was broad enough to cover relief in this area. (A p­
pellee’s Appendix p. 46, 47). However, the Court also noted that 
there had been no evidence introduced on the question of how pupils 
were affected by the present policy of the Board in the hiring and 
placing of teachers and other school personnel. Cf., D ow n s  v. Board 
o f  Education o f  Kansas C ity ,  336 F. 2d 988, 997 (10th Cir. 1964); 
and, M app  v. Board o f  Education o f  Kansas C ity ,  319 F. 2d 571 (6th 
Cir. 1963). He required the parties to be fully prepared to discuss all 
phases of this issue after the close of the 1964-65 school year. (A p­
pellants’ Appendix p. 117 a ) .

The question now before the Court is not  whether or not the plain­
tiffs have standing to raise the issue of personnel, as suggested by the



19

Plaintiffs, for the District Court has not ruled that they lacked stand­
ing. Indeed, the trial judge acknowledged that this Court had inti­
mated its accord in this area with the Fifth and Sixth Circuits. The 
question which is before the Court is whether or not the District 
Court abused its discretion in deferring consideration of this question 
until after the close of the current school year.

When this issue was first presented to the Court of Appeals for the 
Sixth Circuit in M app  v. Board o f  Education o f  Chattanooga ,  319 
F. 2d 571 (6th Cir. 1963), that Court concluded that the issues of 
assignment of teachers and a unitary employment policy were proper 
ones to be determined in that action, but stated:

“ (W )e  think it appropriate that the stricken allegations of 
the complaint, insofar as they relate to the assignment of teachers 
and principals, be restored to the pleading and that decision of 
the legal question presented await developments in the progress 
of the plan approved. Nothing we have said need call for any 
present taking of testimony on the subject of teacher and prin­
cipal assignment. W ithin his discretion, the District Judge may 
determine when, if at all, it becomes necessary to give considera­
tion to the question under discussion.”

The postponement of consideration of such an issue by the trial 
court was approved by the Sixth Circuit again in N orth cro ss  v. Board  
o f  Education o f  M em ph i s ,  333 F. 2d 661 (6th Cir. 1964). Also, in 
the case of Calhoun  v. Latimer, 321 F. 2d 302 (5th Cir. 1963), the 
Fifth Circuit affirmed an order of the District Court which postponed 
consideration of teacher assignments.

In November 1964 the Chairman of the Durham C ity Board of 
Education appointed a committee to explore all administrative aspects 
of integration of teaching and professional staffs in the system, and 
this committee has reported to the Board that it has already under­
taken its assignment and expects to make its report in the near future.

The North Carolina State Department of Public Instruction alio-



20

cates between Negro and White teachers the number of positions in 
each school system for which it will reimburse the system the teachers’ 
salaries. (Appellants Appendix pp. 62a, 63a) . This assures that each 
school system will employ Negro and white teachers on a fair pro­
portionate basis with the funds provided by the State of North Caro­
lina. The local boards of education hire all teachers and make the as­
signments to the respective schools. (Appellants’ Appendix p. 64a). 
Since the number of available qualified teachers is always limited, the 
individual preference of the teachers must necessarily be taken into 
consideration in making these assignments. As recently as this past 
summer, one of the Negro librarians employed by the Durham City 
Board of Education was offered the position of assistant supervisor 
of librarians over all schools in the system, and although she initially 
stated that she would accept the position she ultimately declined to do 
so. (Appellee’s Appendix p. 26).

A t the close of the 1963-64 school year the Durham City School 
System employed 640 teachers, of which number 292 were Negro 
and 348 were white. The large turnover in teacher personnel is indi­
cated by the fact that 455 new teachers were employed between 1959 
and 1963, of which number only 108 filled new teaching positions, 
and of this number 66 were Negro and 42 were white. (Appellants’ 
Appendix pp. 29a, 30a).

These are but a few of the many administrative problems which 
must be considered in connection with the integration of teaching 
staffs and which justify the postponement of this issue under the 
principles of Brown  v. Board o f  Education , 349 U. S. 294 (1955). 
The Court of Appeals for the Fourth Circuit has recognized the 
complexities which are involved during this period of transition, as 
have the Fifth and Sixth Circuits, and it is respectfully urged that 
the District Court was entirely justified in postponing consideration 
of this issue until after the close of the 1964-65 school year.

III.

WHETHER THE DISTRICT COURT ABUSED ITS DIS-



21

CRETION BY CONTINUING IN EFFECT ITS GENERAL 
INJUNCTIVE ORDER WHILE DENYING SPECIFIC IN­
JUNCTIVE RELIEF W ITH  RESPECT TO THE SIZE AND 
LOCATION OF NEW  SCHOOL FACILITIES, FOR THE 
REASON T H A T THESE ARE CONSIDERATIONS INITIAL­
LY FOR THE SCHOOL BOARD, W H EN  THE COURT HAD 
THE ASSURANCE OF THE BOARD T H A T  ITS SCHOOL 
CONSTRUCTION PROGRAM WILL NOT BE DESIGNED 
TO PERPETUATE, M AIN TA IN , OR SUPPORT SEGREGA­
TION?

The basic school facilities available in the Durham C ity School 
System have existed for a great many years and were constructed 
on the neighborhood school plan to accommodate pupils residing in 
the neighborhood. (The dates of construction of each school are set 
forth in Appellee’s Appendix pp. 12-19). To keep these facilities in 
good condition the Board is required to maintain a program of per­
petual repair, renovation and expansion. The standards required under 
a modern educational program are constantly changing and additional 
and expanded facilities at the existing sites are required from time to 
time to maintain accreditation. (Appellee’s Appendix p. 24, 25). 
These facilities which have been constructed at a cost to the com­
munity of millions of dollars cannot be abandoned and new plants 
erected. The increase in pupil enrollment alone results in a tremen­
dous financial burden each year to the community for additional faci­
lities. For a number of years the Durham C ity School System has 
had an increase in school population of about 500 pupils a year. This 
necessitates the annual construction of one new school or from 14 to 
18 additional classrooms. (Appellee’s Appendix p. 24).

Certainly, school construction is an appropriate matter for con­
sideration by the courts, for construction programs may not be de­
signed to perpetuate, maintain or support segregation. Board o f  P ub ­
l i c  Instruct ion  o f  D uval C oun ty  v. Braxton, 326 F. 2d 616 (5th Cir. 
1964). However, as pointed out by the District Judge in his consid­
eration of the Plaintiffs’ request for a specific injunction in this regard,



22

there are many, many factors involved in determining how, where 
and when new facilities are to be constructed, such as: the availability 
of land, cost of land, concentration of population, and present over­
crowded conditions. (Appellee’s Appendix p. 56).

The District Court was not unmindful of the responsibility of the 
Board in this area. During the discussion with reference to the ap­
propriate relief to be granted and the drafting of the present Order, 
the Court stated:

“Now that leaves one item for consideration and that is this 
question of construction, which yesterday when I was jotting 
down these thoughts I didn’t even think about, and frankly I 
just simply do not know how to handle that problem. Certainly 
I can’t tell the School Board where to build a school. I do think 
that it goes to their good faith. If they build a very small school 
simply to accommodate a small population group in a certain 
area, when any judgment at all would dictate that there be a 
larger school for a larger area if all the individuals in that area 
were of the same race. However, they have many, many factors 
that are involved in it: the availability of land, the cost of the 
land, the concentration of population, the overcrowded conditions 
now; and as I mentioned a little while ago, I think it would be 
just as bad for the School Board to sit down and say, ‘W ell, this 
is not good business here from a business standpoint. W e 
wouldn’t put it here if all the children were white or all the 
children were Negro but in order to encourage and to get more 
intermixture of the races, why we’ll put it here.’ I think that’s a 
bad criterion to go about it. But if they say they are going to lo­
cate it there because it will tend to perpetuate segregation, it 
will tend to segregate a community where all the people who live 
there are one race, I think that’s bad and it should not be done.

“I rather think this construction problem is a part of the good 
faith of the School Board in trying to fully and completely com­
ply with the pronouncements of the Courts in this area. I would 
hope that there would be some consultation between the parties



23

interested in the location of the school, but I simply do not know 
what sort of injunctive relief—and who’s going to tell them 
where you can put a school with all this multitude of factors in­
volved? 1 agree with counsel for the plaintiffs as to the general 
objective, and I will simply say to the defendant that you should 
not use race as any factor in deciding on a location; but there 
are dozens of other factors that are perfectly legitimate and when 
those factors are given their full weight and you apply good 
business principles and practices, that might go counter to the 
wishes of some population group. It might be a white popula­
tion group; it might be a Negro population group. But it’s 
an area that requires the utmost good faith coupled with good 
business practices. I can simply say to all parties that as new con­
struction comes along that I would think the burden would be 
on the School Board to reasonably justify its actions in the loca­
tion, to demonstrate its good faith.”

These remarks by the District Judge are certainly not in accord 
with the statement in Appellants’ brief which imputes a finding by 
the Court that this matter of construction was not relevant to the 
litigation. (Appellants’ Brief p. 26). Indeed, the Order of the Court 
states that the Court has the assurance of the defendant that its school 
construction program will not be designed to perpetuate, maintain or 
support segregation. (Appellants’ Appendix p. 118a).

Not only has the School Board assured the Court that it is approach­
ing this matter with the utmost good faith, but as further evidence 
of this fact, on November 23, 1964, the Board held a special meeting 
for the purpose of discussing capital needs and the 1964 bond funds 
which it will receive, and to consider its immediate and long-range 
programs for school construction and renovations. The attorneys for 
the plaintiffs were urged to attend this meeting for the purpose of 
assisting the Board in its decisions with their suggestions and critic­
isms. Counsel for all parties met with the Board on that occasion. 
At the close of the meeting the Board was assured that counsel for 
the plaintiffs would formulate their suggestions in the near future



24

and present them to the Board before further action becomes necessary 
on these matters.

It is respectfully submitted that this is the only reasonable approach 
to this difficult problem of new construction, and that the parties are 
proceeding in this manner demonstrates that no injunctive relief is 
necessary.

Conclusion

Wherefore, for the foregoing reasons, it is respectfully submitted 
that the judgment of the District Court should be affirmed.

Respectfully submitted,
M arshall T. Spears 
Spears, Spears & Barnes 
Central Carolina Bank Bldg. 
Durham, North Carolina

Jerry L. Jarvis 
Watkins & Jarvis 
First Union Natl. Bank Bldg. 
Durham, North Carolina

A tto rn ey s  f o r  A ppelle e .