Nesbit v. Statesville City Board of Education Brief for Appellants
Public Court Documents
January 1, 1965

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Brief Collection, LDF Court Filings. Nesbit v. Statesville City Board of Education Brief for Appellants, 1965. 3f55b558-bf9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/282accf7-ce89-4512-9430-f1fc6d5055b3/nesbit-v-statesville-city-board-of-education-brief-for-appellants. Accessed April 22, 2025.
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I n th e Mtuteii Btutia (Ciutrt of Appeals F or th e F ourth Circuit No. 9632 H arriett D . N esbit, et al., — v .— Appellants, T h e S tatesville City B oard of E ducation, a public body corporate of Statesville, North Carolina, and A. D. K ornegay, Superintendent of Statesville City Schools, Appellees. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA STATESVHLE DIVISION BRIEF FOR APPELLANTS Conrad 0 . P earson 203% East Chapel Hill Street Durham, North Carolina J. L eV onne Chambers 405% East Trade Street Charlotte, North Carolina Calvin L . B rown 235 South Brevard Street Charlotte, North Carolina J ack Greenberg D errick A. B ell , J r. J ames M . N abrit, I I I M elvyn Z arr 10 Columbus Circle New York, New York 10019 Attorneys for Appellants I N D E X PAGE Statement of the Case ...................................................... 1 Questions Involved ........................................................... 3 Statement of Facts ........................................................... 4 A rgum ent : I. The Court Below Erred in Approving the Delay Requested by the School Board, Deny ing Appellants Shuford and Hamilton and Others of Their Class and Grade Level the Right to Transfer to Desegregated Schools, Where the School Board Failed to Show Any Specific Administrative Obstacles Requiring Delay ................................................................... 8 A. The School Board Introduced No Evi dence to Support Its Request for Delay ing the Right of Negro Pupils to Request Transfers to the Junior and Senior High Schools .......................................................... 8 B. Appellants Shuford and Hamilton Should Be Transferred Forthwith to the School of Their Choice .......................................... 13 II. The Court Below Erred in Approving a Final Plan of Desegregation Which Permits the School Board to Continue Its Prior Racially Discriminatory Practices in Administering the School System and Which Imposes the Burden Upon Negro Students to Request Transfers to Obtain a Desegregated Educa tion ....................................................................... 15 11 III. The Court Below Erred in Refusing to En join, as an Aspect of Appellees’ Racially Dis criminatory Policies in the Operation of the Statesville Public Schools, the Assignment of Teachers and School Personnel on the PAGE Basis of R ace..................................................... 20 Conclusion ......................................................................... 24 T able of Cases Allen v. County School Board of Prince Edward County, 249 F. 2d 462 (4th Cir. 1957) ......................... 10 Anderson v. Martin, 375 U. S. 399 ................................ 18, 23 Bates v. Little Rock, 361 U. S. 516 ................................ 18 Bell v. School Board of Powhatan County, Virginia 321 F. 2d 494 (4th Cir. 1963) ...................................... 19 Belo v. Randolph County Board of Education, 9 Race Rel. L. Rep. 199 (M. D. N. C. 1964) .......................... 12 Board of Education v. Groves, 261 F. 2d 527 (4th Cir. 1958) ................................................................................. 14 Board of Public Instruction of Duval County v. Brax ton, 326 F. 2d 616 (5th Cir. 1964) .............................. 21 Bradley v. School Board of City of Richmond, 317 F. 2d 429 (4th Cir. 1963) ............................................12,19 Brown v. Board of Education, 347 U. S. 483 ....3, 4, 8,13,15, 16,17,18,19, 20 Brown v. Board of Education, 349 U. S. 294 .......8,16,19, 20 Brown v. County School Board of Frederick County, Virginia, 327 F. 2d 665 (4th Cir. 1964) ....................... 19 Buckner v. County School Board of Green County, 332 F. 2d 452 (4th Cir. 1964) .........9,12,15,16,17,19, 23 Bush v. Orleans Parish School Board, 308 F. 2d 491 (5th Cir. 1962) 16 I l l Calhoun v. Latimer, 377 U. S. 263 .................................. 9 Cooper v. Aaron, 358 U. S. 1 ................................ 8, 9,16, 21 Dowell v. School Board of the Oklahoma City Public Schools, 219 F. Supp. 427 (W. D. Okla. 1963) ........... 22 DuBissette v. Cabarrus County Board of Education, 9 Race Rel. L. Rep. 205 (M . D. N. C. 1964) ............... 12 Evans v. Ennis, 281 F. 2d 385 (3rd Cir. 1960) .....10,12,14 Gill v. Concord City Board of Education, Civil No. C-223-S-63, May 7, 1964 .............................................. 11 Goss v. Board of Education, 373 U. S. 683.................... 9,17 Green v. School Board of the City of Roanoke, 304 F. 2d 118 (4th Cir. 1962) ..............................................16, 23 Griffin v. County School Board of Prince Edward County, 377 U. S. 218 .................................................... 9 Jackson v. Rawdon, 235 F. 2d 93 (5th Cir. 1956) ....... 11 Jackson v. School Board of the City of Lynchburg, 308 F. 2d 918 (4th Cir. 1962) ...................................... 14 Jackson v. School Board of the City of Lynchburg, 321 F. 2d 230 (4th Cir. 1963) ............................................ 20,22 Jeffers v. Whitley, 309 F. 2d 621 (4th Cir. 1962) ....... 12 Johnson v. Virginia, 373 U. S. 61 ...................................... 23 Jones v. School Board of the City of Alexandria, 278 F. 2d 72 (4th Cir. 1960) ............................................16, 23 Lucy v. Adams, 350 U. S. 1 .............................................. 14 /Manning v. Board of Instruction of Hillsborough County, Florida, 7 Race Rel. L. Rep. 681 (S. D. Fla. 1962) ................................................................................. 22 Mapp v. Board of Education of Chattanooga, 319 F. 2d 571 (6th Cir. 1963) .......................................................... 21 Marsh v. County School Board of Roanoke County, 305 F. 2d 94 (4th Cir. 1962) PAGE 16 McLaurin v. Oklahoma State Regents, 339 U. S. 637 .... 23 Moore v. Board of Education, 252 F. 2d 291 (4th Cir. 1958), aff’g, 152 F. Supp. 114 (D. Md. 1957), cert, denied sub nom. Slade v. Board of Education, 357 U. S. 906 ......................................................................... 14 NAACP v. Alabama, 357 U. S. 449 .................................. 18 N. L. R. B. v. Newport News Shipbuilding & Dry Dock Co., 308 U. S. 241 ......................................................... 19 Northcross v. Board of Education of the City of Memphis, 302 F. 2d 818 (6th Cir. 1962) ...................... 16 Northcross v. Board of Education of the City of Memphis, 333 F. 2d 661 (6th Cir. 1964) ................... 21 Peterson v. Greenville, 373 U. S. 244 .............................. 23 Petit v. Board of Education, 184 F. Supp. 452 (D. Md. 1960) ................................................................................. 14 Sowers v. Lexington City Board of Education, Civil No. C-20-S-64, M. D. N. C., May 14, 1964 ................... 11 Sweatt v. Painter, 339 U. S. 629 ...................................... 22 Tillman v. Board of Public Instruction of Volusia County, Florida, 7 Race Rel. L. Rep. 687 (S. D. Fla. 1962) ................................................................................. 22 Turner v. Warren County Board of Education, Civil No. 1483, E. D. N. C., July 6, 1964 .............................. 11 United States v. Crescent Amusement Co., 323 U. S. 173 ..................................................................................... 19 Watson v. City of Memphis, 373 U. S. 526 .....8, 9,12,13, 23 Wheeler v. Durham City Board of Education, 309 F. 2d 630 (4th Cir. 1962) ........................................................... 16 Ziglar v. Reidsville Board of Education, 9 Race Rel. L. Rep. 207 (M. D. N. C. 1964) ......................................... 12 iv PAGE I n th e Hmfrii States GJmtrt of Appeals F or th e F ourth Circuit No. 9632 H arriett D. N esbit, et al., Appellants, T h e S tatesville City B oard of E ducation, a public body corporate of Statesville, North Carolina, and A. D. K ornegay, Superintendent of Statesville City Schools, Appellees. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA STATESVILLE DIVISION BRIEF FOR APPELLANTS Statement of the Case This appeal is from an order approving a plan for de segregation of the public schools of the City of Statesville, North Carolina entered by the United States District Court for the Western District of North Carolina, Statesville Division, on August 29, 1964 (96a). This appeal is brought under 28 U. S. C. §1291. The complaint was filed on March 14, 1964, by eleven Negro school children and their parents on behalf of them selves and others similarly situated seeking a preliminary and permanent injunction against the racially discrimina tory practices of the Statesville City Board of Education in 2 the operation of the Statesville public schools. The com plaint alleged that the appellee School Board operated the city schools on a racially discriminatory basis, assigning Negro and white pupils, teachers, and school personnel to separate schools solely on the basis of race; that the named appellants, along with approximately twenty-one other Negro pupils, filed requests for transfer to white schools at the close of the 1963 school year; that nine of the re quests for transfer were granted but that appellants’ ap plications and the applications of the other Negro pupils were denied; that adult appellants had petitioned the Board in September, 1963, requesting that the appellees cease operating the public schools on a racially discriminatory basis, but without effecting any change (la-9a). On May 8, 1964, appellees filed an answer to the com plaint (13a). Interrogatories were served on appellees in April, 1964 and answered in May, 1964. The cause came on for hearing on appellants’ motion for preliminary injunction on July 29, 1964, at which time the motion for preliminary injunction was denied by con sent (86a). The cause was set for hearing on the merits on July 31, 1964. At the hearing on the merits the appellees admitted that the public schools in the City of Statesville are and have been operated on a racially discriminatory basis (49a, 59a, 87a). The case was accordingly submitted to the Court upon stipulated facts and testimony introduced by appellants on the issue of the reasonableness of the plan proposed by appellees for desegregating the public schools of the City of Statesville over a three-year period. Follow ing the hearing the Court issued a Memorandum Opinion, dated August 3, 1964, in which it found that the plan of desegregation proposed by the School Board was reason able, that the named appellants were not entitled to be transferred to white schools except in accordance with the 3 plan, and that the minor appellants were not proper par ties to seek relief against appellees’ racially discriminatory assignment of teachers and professional school personnel (86a). An order was accordingly entered on August 29, 1964, approving the plan presented by the School Board as reasonable, denying the right of the named appellants who were not in grades then affected by the plan to be trans ferred, denying the relief prayed for by appellants for an order enjoining the racially discriminatory assignments of teachers and other professional personnel and retaining jurisdiction of the cause (96a-97a). Notice of Appeal was filed on August 31, 1964 (98a), following which appellants moved for an Injunction Pend ing Appeal to obtain relief for the named appellants herein who were denied the right to transfer this school term be cause they were in grades beyond those then affected by the plan. Questions Involved 1. Whether appellants William Shuford, Philip S. Hamil ton and others of their grade level were deprived of due process of law and the equal protection of the laws under the Fourteenth Amendment by the order of the District Court depriving them of the right to transfer to desegre gated schools. 2. Whether the evidence submitted by the School Board supported its burden, required by Brown v. Board of Edu cation, of justifying delay in desegregating the public schools of Statesville over a three-year period. 3. Whether the plan for desegregating the Statesville public schools, which continues indefinitely initial racially discriminatory assignments of pupils based on dual racial 4 zones and imposes the burden on them to request reassign ment in order to obtain a desegregated education, complies with the decisions of the Supreme Court and of this Court. 4. Whether appellants, Negro students and parents, were denied due process of law and equal protection of the laws under the Fourteenth Amendment by the order of the Dis trict Court refusing to enjoin the practice of assigning all teachers and school personnel on a racially segregated basis. Statement of Facts There are approximately 6,000 students in the public school system of the City of Statesville, approximately 2,000 of whom are Negroes (31a). The system has 11 public schools, including five elementary schools, 2 junior high schools and 1 high school for white pupils, and 2 elementary schools and 1 high school for Negro pupils (31a). Negro and white pupils go to designated Negro and white schools (20a, 48a, 49a, 52a). Subsequent to the decision of the United States Supreme Court in Brown v. Board of Education, 347 U. S. 483, the School Board took no action of any kind to end segregation in the schools, except to adopt the North Carolina Pupil Enrollment Act, until appellants, along with 21 other Negro pupils, filed requests for transfers in the summer of 1963 (21a, 36a, 53a). At that time the School Board held two public meet ings to consider the propriety of permitting such trans fers and decided to accept five of the first grade applicants and four of the senior high school applicants (37a, 68a). The basis for this decision was that the Board felt that the transfer of the applicants to these grades would “ dis turb the schools least” (37a). No further steps for de segregation of the schools were taken by the Board. 5 Following the denial of their requests for transfer, the appellants herein tiled suit requesting an order requir ing the desegregation of the Statesville public school sys tem. At the hearing on July 31, 1963, the appellees, having admitted that the public schools of Statesville are, and have been, operated on a racially segregated basis (48a, 49a, 52a, 59a), proposed, and the Court approved, a plan which pro vided as follows : A. Beginning with the 1964-65 school year, the de fendant Board shall institute a free reassignment plan for grades one through six, and any Negro child who applies by August 15, 1964, to be transferred to a school attended entirely or predominantly by mem bers of another race shall be transferred as of course. The defendant Board, by August 8, 1964, shall mail or cause to be mailed to each Negro parent of children in grades one through six a letter advising such parents that upon request their children may be transferred to the school of their choice. Enclosed with said let ter shall be a simple application form for requesting such transfer. Applications for transfer for the 1964- 65 school year shall be returned to the defendant Board on or before August 15, 1964. B. Beginning with the 1965-66 school year, the plan, as described in paragraph (1 )(A ), shall extend to grades ten through twelve, with the following changes: students in the grades affected by the plan are to be advised by letter that they have a right to request transfer to the school of their choice and that such requests will be granted as of course. Said letter shall also advise that application forms are available in the Superintendent’s office and in the office of each principal and that the forms are to be returned or 6 mailed to the office of the School Board on or before July 1, 1965. C. Beginning with the school year 1966-67, the plan as described in paragraph (1) (B) shall apply to grades seven through nine (56a-57a, 96a). In general, appellants objected to the rate of desegrega tion as not justified by any showing of administrative obstacles by the School Board; to the failure of the plan to make provisions for the admittance of appellants Shu- ford and Hamilton; to the failure of the plan to abolish dual school zone lines (to provide for the assignments of pupils according to a single set of lines rather than to continue the racially discriminatory assignments of pupils, and transfer the burden to Negro pupils to request trans fer in order to attend school on the same conditions as white pupils similarly situated); to the failure of the plan to provide for desegregation of teachers and school per sonnel. At the hearing held on July 31, 1964, appellees, although recognizing that the burden was upon them to justify the propriety and reasonableness of the plan, introduced no evidence and merely stated through counsel that they thought the plan preferable because it maintained racial harmony (52a-59a). Appellants called as a witness, A. D. Ivornegay, Superin tendent of the Statesville City Public Schools. The Super intendent testified that in the summer of 1963, thirty Negro pupils filed requests for transfer: twenty-three to ele mentary schools, three to junior high schools and four to high schools (68a-69a); that after studying the records of the pupils and holding two public meetings, it was felt that they would have less trouble if all first grade applicants 7 and senior high, school applicants were transferred (69a); that the Board was concerned about the junior high school and “ it would be safer and would work better if we eliminate that particular group until they could adjust to it” (70a). At the two public hearings, both the white and Negro people there were rather strong in their opinions concerning desegregation of the schools (71a). When asked what would prevent the Board from transferring the named appellants to the school of their choice for the 1964-65 school term, the Superintendent stated: “ . . . Right now I think the system last year worked reasonably well. It wasn’t perfect but we certainly didn’t have the problems that some other places have had. There has been an attempt at mutual under standing and an attempt at seeing things work. I would much prefer personally to see the thing work in a way that would bring down less friction and a way that would interfere less with other children. I think we can do it so fast that people can balk on what’s being done. Right now I don’t believe any children have been hurt. I think the system has stood it rea sonably well, sir” (71a-72a). He further stated that there might be some administra tive problems, but that the basic objective of the appellee was to move in an orderly fashion and that this was the reason for the proposed three-year plan (72a). 8 A R G U M E N T I. The Court Below Erred in Approving the Delay Re quested by the School Board, Denying Appellants Shu- ford and Hamilton and Others of Their Class and Grade Level the Right to Transfer to Desegregated Schools, Where the School Board Failed to Show Any Specific Administrative Obstacles Requiring Delay. A. The School Board Introduced No Evidence to Support Its Request for Delaying the Right of Negro Pupils to Request Transfers to the Junior and Senior High Schools. Delay in implementing the Supreme Court’s decision in Brown v. Board of Education, 347 U. S. 483, has, with passage of years, been sharply restricted. In the second Brown decision, 349 U. S. 294, the Supreme Court required a prompt and reasonable start toward elimination of racial segregation in the public schools. Delay at that time was permitted upon a showing by school boards of reasonable administrative problems in effecting compliance with the Brown decision. In the absence of such problems, Negro pupils were to be admitted immediately upon the same terms and conditions as white pupils similarly situated. Cooper v. Aaron, 358 U. S. 1, 7. Racial hostility was ex pressly ruled out as an operative factor. Cooper v. Aaron, supra; Watson v. City of Memphis, 373 U. S. 526. The Supreme Court pointed out in Watson v. City of Mem phis, supra, that the constitutional rights here asserted by appellants are “present rights; they are not merely hopes to some future enjoyment of some formalistic con stitutional promise. The basic guarantees of our Consti tution are warrant for the here and now, and unless there 9 is an overwhelming compelling reason, they are to be promptly fulfilled.” Id. at 533. Plans and programs, there fore, for desegregation of public educational facilities which might have been sufficient eight years ago are not necessarily so today. Ibid.; Goss v. Board of Education, 373 U. S. 683, 689; Griffin v. County School Board of Prince Edward County, 377 U. S. 218, 234 (“ The time for mere ‘deliberate speed’ has run out” ) ; Calhoun v. Latimer, 377 U. S. 263. Despite the mandate of the Supreme Court and of this Court, see Buchner v. County School Board of Green County, 332 F. 2d 452 (4th Cir. 1964), imposing the respon sibility upon local school authorities to reorganize the pub lic schools in accordance with the Brown decision, appel lees, prior to the hearing of this cause, had taken no steps to eliminate its racially discriminatory policies. Conceding at the hearing of this cause that its practices in the opera tions of the Statesville Public Schools deprived appellants and other Negro pupils of their constitutional rights, appel lees proposed, and the court below approved, a three year plan of desegregation which would permit Negro pupils, after being initially assigned on a racially discriminatory basis, to apply for transfer. Aside from appellants’ objec tions to appellees’ continued practice of making initial as signments on a racially discriminatory basis (see Argu ment II below), appellants submit that the delay here approved by the District Court, limiting their rights to obtain a desegregated education, on the basis that the delay would preserve racial harmony, clearly disregards the decisions of the Supreme Court and of this Court. Cooyer v. Aaron, supra; Watson v. City of Memphis, supra. It was pointed out as early as the second Brown decision that compliance with the Supreme Court’s opinion of May 17, 1954 was not to be delayed or obstructed by hostility 10 to it. Similarly, this Court has rejected contentions that delay in complying with the Brown decision should be countenanced because of community or state hostility. Allen v. County School Board of Prince Edward County, 249 F. 2d 462, 465 (4th Cir. 1957): “A person may not be denied enforcement of rights to which he is entitled under the Constitution of the United States because of ac tion taken or threatened in defiance of such rights.” In rejecting similar contentions as those advanced by ap pellees here, the United States Court of Appeals for the Third Circuit stated in Evans v. Ennis, 281 F. 2d 385 (3rd Cir. 1960): As we have indicated one of the main thrusts of the opinion of the Court below is that the emotional impact of desegregation on a faster basis than that ordered would prove disruptive not only to the Delaware School System but also to law and order in some of the locali ties which would be affected by integration. We point out, however, that approximately six years have passed since the first decision of the Supreme Court in Brown v. Board of Education of Topeka, supra, and that the American people and, we believe, the citizens of Dela ware, have become more accustomed to the concept of desegregated schools and to an integrated operation of their School Systems. Concededly there is still some way to go to complete an unqualified acceptance but we cannot conclude that the citizens of Delaware will cre ate incidents of the sort which occurred in the Milford area some five years ago. We believe that the people of Delaware will perform the duties imposed on them by their own laws and their own courts and will not prove fickle to our democratic way of life and to our republi can form of government. In any event the Supreme Court has made plain in Cooper v. Aaron, 1958, 358 11 U. S. 1, 16, 78 S. Ct. 1401, 1409, 3 L. Ed. 2d 5, the so- called “ Little Rock case” , that opposition is not a sup portable ground for delaying a plan of integration of a public school system. In this ruling the Supreme Court has acted unanimously and with great emphasis stat ing that: “ The constitutional rights of respondents [Negro school children of Arkansas seeking integra tion] are not to be sacrificed or yielded to * * * violence and disorder * * * .” We are bound by that decision. (Emphasis added.) See also Jackson v. Rawdon, 235 F. 2d 93, 96 (5th Cir. 1956): “ We think it clear that, upon the plainest principles governing cases of this kind, the decision appealed from was wrong in refusing to declare the constitutional rights of plaintiffs to have the school board, acting promptly, and completely uninfluenced by private and public opinion as to the desirability of desegregation in the community, proceed with deliberate speed consistent with administration to abolish segregation in Mansfield’s only high school and to put into effect desegregation there.” (Emphasis added.) Moreover, as pointed out by the Third Circuit Court in Evans, community hostility, even if a permissible consid eration, should be given least emphasis in those areas where desegregation has proceeded at a fairly rapid pace than in those areas where emotional reactions are more intense. In North Carolina, in more than twenty odd cases which have been instituted to desegregate public schools, over eighty per cent resulted in consent orders which permit students in all grades to be freely transferred upon request. See Turner v. Warren County Board of Education, Civil No. 1483, E. D. N. C., July 6, 1964; Sowers v. Lexington City Board of Education, Civil No. C-20-S-64, M. D. N. C., May 14,1964; Gill v. Concord City Board of Education, Civil No. 12 C-223-S-63, May 7, 1964; Belo v. Randolph County Board of Education, 9 Race Rel. L. Rep. 199 (M. D. N. C. 1964); DuBissette v. Cabarrus County Board of Education, 9 Race Rel. L. Rep. 205 (M. D. N. C. 1964); Ziglar v. Reidsville Board of Education, 9 Race Rel. L. Rep. 207 (M. D. N. C. 1964). No less than this is required by the decisions of this Circuit. Jeffers v. Whitley, 309 F. 2d 621, 629 (4th Cir. 1962); Bradley v. School Board of City of Richmond, 317 F. 2d 429, 438 (4th Cir. 1963); Buckner v. County School Board of Greene County, supra at 456. See also Evans v. Ennis, supra. Moreover, the appellees have submitted no evidence to support a finding that racial tension warranted the delay approved by the District Court. The asserted fear of pos sible racial discord and problems in the adjustments of pu pils was apparently based upon the expression of opinion during the two public meetings of the School Board. The appellees have conducted no investigation and introduced no evidence beyond their personal suspicions to support a finding that racial discord would be provoked by the admis sion of Negro pupils to all grades during this school term. Watson v. City of Memphis, supra at 536-37. Four Negro pupils were transferred to the formerly all- white high school and five Negro pupils to the formerly all- white elementary school last school term. The Superinten dent testified “ that this integration worked reasonably well” (71a). Despite this prior experience and the absence of any evidence showing any problems presented by the trans fer of Negro pupils in 1963 the District Court approved de laying further transfers to the high school until 1965-66 and to the junior high school until 1966-67. Certainly if there were any basis for this fear of transferring Negro pupils to the junior high school and the senior high school this school term the School Board should have been re quired to produce some evidence in support of its requested 13 delay. Moreover, recognizing the peaceful accord between the races in Statesville, as the District Court here has done (87a n. 1) such good will is best “preserved and extended by the observance and protection, not the denial, of the basic constitutional rights here asserted. The best guarantee of civil peace is adherence to, and respect for, the law.” Wat son v. City of Memphis, supra, at 537. B. Appellants Shuford and Hamilton Should Be Transferred Forthwith to the School of Their Choice. Not only did the District Court, by its order, deny the right of Negro pupils in grades unaffected by the School Board’s plan to transfer to desegregated schools, it also held that the minor appellants William Shuford and Phillip S. Hamilton would not be permitted to transfer this school term to the junior high school, notwithstanding these appel lants had initially requested transfer in the Summer of 1963 for the 1963-64 school year. The Court reasoned that the named appellants were entitled to no greater right than others of their class whom they represented and since the plan it had approved had not reached their grade level, they would not be permitted to transfer. Both appellants Shu ford and Hamilton are in the junior high school and by the ruling of the Court they will be denied the right to transfer until the 1966-67 school term. Thus, their right to a deseg regated education will be postponed a full 12 years after the Supreme Court’s decision of 1954, solely on the basis of the unsupported fears of the School Board of provoking racial discord, a consideration rendered inapposite by the Su preme Court as early as the second Brown decision. The question involved is whether the Court must enforce the “present” and “ personal” constitutional rights of these appellants. Numerous courts, including this Court, have dealt with this problem and found different bases for grant 14 ing exceptions to gradual desegregation plans, or for dif ferent treatment for pupils actively requesting the right to attend desegregated schools. Jackson v. School Board of the City of Lynchburg, 308 F. 2d 918 (4th Cir. 1962); Board of Education v. Groves, 261 F. 2d 527, 529 (4th Cir. 1958); Moore v. Board of Education, 252 F. 2d 291 (4th Cir. 1958), aff’g 152 F. Supp. 114 (D. Md. 1957), cert, denied sub nom. Slade v. Board of Education, 357 U. S. 906; Evans v. Ennis, supra; Petit v. Board of Education, 184 F. Supp. 452 (D. Md. 1960); cf. Lucy v. Adams, 350 U. S. 1. The only relief that these litigants obtain through the ju dicially approved plan is the satisfaction that perhaps at some future date they may obtain their constitutional rights. However real and substantial such satisfaction may be, it is no legal substitute for immediate judicial pro tection of the constitutional rights of these appellants. Ap pellee has made no showing of any kind of any administra tive obstacles to appellants’ immediate admission. The immediate admission of these two minor appellants will in no way interfere with the administration of the Statesville schools, and should be ordered forthwith as was done three days after the argument in Jackson v. School Board of City of Lynchburg, 308 F. 2d 918 (4th Cir. 1962). 15 II. The Court Below Erred in Approving a Final Plan of Desegregation Which Permits the School Board to Con tinue Its Prior Racially Discriminatory Practices in Ad ministering the School System and Which Imposes the Burden Upon Negro Students to Request Transfers to Obtain a Desegregated Education. At the time of the hearing of this cause, on July 31, 1964, the appellees conceded that they discriminated against appellants and other Negro pupils in the Statesville school system in the operation and administration of the States ville public schools. Negro pupils and teachers were as signed to the various schools on a racially discriminatory basis. The school budgets, disbursement of school funds, and extra-curricular activities were planned and sanc tioned on the basis of race. In short, except for the trans fer of 9 Negro pupils prior to the beginning of the 1963-64 school year, the public school system of Statesville was administered on the same racially discriminatory basis as before the Supreme Court’s decision in Brown. At the hearing of this cause, on July 31, the school board pro posed, and the Court below approved, as a permanent plan for desegregation, a proposal which permits the con tinued discriminatory practices of the board (including con tinued initial assignments of entering pupils based on dual racial zones and a segregated feeder system), and shifts to Negro school pupils the burden of desegregating the schools by requesting transfers from all-Negro schools to white schools. Appellees submit that such a plan falls far short of the requirements of Brown v. Board of Educa tion and other implementing decisions, particularly Buck ner v. County School Board of Greene County, 332 F. 2d 452 (4th Cir. 1964). 16 In Brown v. Board of Education, 347 U. S. 483, the Su preme Court condemned racial segregation in public school systems. State authorities were given the responsibility of reorganizing the public schools to eliminate their prior practice of maintaining racially segregated school systems. Brown v. Board of Education, 349 U. S. 294; Cooper v. Aaron, 358 U. S. 1. It is clear therefore, that a school board does not satisfy the requirements of the Brown decision merely by superimposing upon a bi-racial school system procedures permitting Negro students, who are initially assigned to segregated schools pursuant to bi-racial school zone lines, to apply for transfer to schools to which white pupils similarly situated are initially assigned. This Court, and other Circuit Courts, have held that an essential element of a desegregation program is the elim ination of dual attendance areas and racial feeder systems. Jones v. School Board of the City of Alexandria, 278 F. 2d 72 (4th Cir. 1960); Green v. School Board of the City of Roanoke, 304 F. 2d 118 (4th Cir. 1962); Marsh v. County School Board of Roanoke County, 305 F. 2d 94 (4th Cir. 1962); Wheeler v. Durham City Board of Education, 309 F. 2d 630 (4th Cir. 1962); Buckner v. County School Board of Greene County, 332 F. 2d 452 (4th Cir. 1964); North- cross v. Board of Education of the City of Memphis, 302 F. 2d 818 (6th Cir. 1962); Bush v. Orleans Parish School Board, 308 F. 2d 491 (5th Cir. 1962). As this Court pointed out only recently in Buckner, supra at 454, in initially assigning all Negro pupils to segregated schools and permitting them to transfer out of these schools only upon request for reassignment, the School Board transfers the initiative in seeking desegrega tion to Negro pupils. Such a practice has appropriately been condemned because it unconstitutionally transfers the burden of initiating desegregation to Negro pupils and 17 imposes a burden upon such pupils not required of white pupils similarly situated.1 Moreover, such plans, because of the existing racial pat tern, perpetuate rather than eliminate the racially seg regated school systems condemned in Brown. Under the type of system in effect in Statesville, white students will continue to attend schools traditionally attended by mem bers of their race without regard to the availability of a Negro school closer to their homes. Similarly, the mo mentum of 100 years of segregation will continue to propel the Negro children to the school that he and others of his class have been accustomed to attending, irrespective of the distance to his home. And if the locality is one where there is public hostility to desegregation of the schools, many Negro families will be altogether reluctant to risk antagonizing white members of the community and thereby chance the possibility of some form of reprisal. The “ re pressive effect” on Negroes of “ private attitudes and pres sures” inherent in a system which places the burden of 1 In Buckner, the Court said at 454: “By initially assigning Negro pupils to segregated schools and then permitting them, only upon application to the Pupil Placement Board, to transfer out of these segregated schools, the School Board has in effect formulated a plan which will require each and every Negro student individually to take the initiative in seeking desegregation. * * * # “ It is too late in the day for this school board to say that merely by the admission of a few plaintiffs, without taking any further action, it is satisfying the Supreme Court’s Mandate for ‘good faith compliance at the earliest practicable date.’ ” See also Goss v. Board of Education, 373 U. S. 683, 688: “ The recognition of race as an absolute criterion for grant ing transfers which operate only in the direction of schools in which the transferee’s race is in the majority is no less unconstitutional than its use for original admission on sub sequent assignment to public schools.” (Emphasis added.) 18 desegregating the schools on individual Negro families alone renders the system constitutionally vulnerable. Cf. Anderson v. Martin, 375 U. S. 399, 403; Bates v. Little Rock, 361 U. S. 516, 524; NAACP v. Alabama, 357 U. S. 449. Other factors which will tend to discourage Negro families from voluntarily transferring their children out of Negro schools include: (1) economic insecurity resulting from the Negro’s generally inferior economic position in relation to that achieved by whites; (2) severance of a child’s social relationships in a Negro school and his relative social iso lation upon transferring to a school which previously has been all-white; and (3) the fear of academic failure follow ing transfer, when the Negro child will he in competition with white children who (because of differences between all-Negro and white schools) are likely to be more advanced scholastically. One of the principal bases for the Supreme Court’s decision in Brown v. Board of Education of Topeka, 347 U. S. 483, is the finding that Negro children attending all- Negro schools suffer solely by virtue of their being segre gated from white children, and thereby receive an inferior educational experience {Id. at 493-494). Compliance with Brown is the responsibility of the public school authori ties who are bound by the Constitution to provide equality of educational opportunity to all children without distinc tion as to race. Where, as in Statesville, the school authori ties, as instrumentalities of the State, are responsible for having established the all-Negro schools in the first in stance and for assigning children to them solely on the basis of race, these same authorities may not now turn their backs on the problem and tell the Negroes that the responsibility for desegregating the schools rests with them through exercise of the option to transfer. As this Court has stated: “ It is upon the very shoulders of school boards that the major burden has been placed for implementing 19 the principles enunciated in the Brown decisions. * # * ‘School authorities have the primary responsibility for elucidating, assessing, and solving these [varied local school] problems [attendant upon desegregation].’ ” Bell v. School Board of Powhatan County, Virginia, 321 F. 2d 494, 499 (4th Cir. 1963), quoting Brown v. Board of Educa tion of Topeka, 349 U. S. 294, 299; Buckner v. County School Board of Greene County, Virginia, 332 F. 2d 452, 455 (4th Cir. 1964). Accord: Bradley v. School Board of City of Richmond, Virginia, supra, 317 F. 2d at 436-438 (4th Cir. 1963); Brown v. County School Board of Frederick County, Virginia, 327 F. 2d 655 (4th Cir. 1964).2 This in cludes the elimination of the racially discriminatory poli cies and practices in the assignment of teachers and school personnel (see Argument III below) and in the sanctioning of school budgets, appropriation of school funds, the admin 2 Analogies exist in other fields of law where, in order to rectify a course of unlawful conduct, the wrongdoer is required, under equitable doctrine, to do more than merely cease his activities, but is compelled to take further affirmative steps to undo the effects of his wrongdoing. Under the Sherman Antitrust Act unlawful combinations are commonly dealt with through disso lution and stock divestiture decrees. See, e.g. United States v. Crescent Amusement Co., 323 U. S. 173, 189, and eases cited. And early in the history of the National Labor Relations Act, it was recognized that disestablishment of an employer-dominated labor organization “may be the only effective way of wiping the slate clean and affording the employees an opportunity to start afresh in organizing for the adjustment of their relations with the em ployer.” N. L. R. B. v. Newport News Shipbuilding & Dry Dock Co., 308 U. S. 241, 250; see also American Enka Corp. v. N. L. R. B., 119 F. 2d 60, 63 (C. A . 4 ) ; Western Electric Co. v. N. L. R. B., 147 F. 2d 519, 524 (C. A . 4 ) . In Sperry Gyroscope Co., Inc. v. N . L . R . B., 129 F. 2d 922, 931-932 (C. A . 2 ), Judge Jerome Frank compared N. L. R. B. orders requiring disestablishment of employer- dominated unions to “the doctrine of those cases in which a court of equity, without relying on any statute, decrees the sale of assets of a corporation although it is a solvent going concern, because the past and repeated unconscionable conduct of domi nating stockholders makes it highly improbable that the improper use of their power will ever cease” (citing cases). 20 istering of extra-curricular activities and any other aspect in the administration and operation of the public schools of Statesville on a racial basis. Jackson v. School Board of the City of Lynchburg, 321 F. 2d 230 (4th Cir. 1963). III. The Court Below Erred in Refusing to Enjoin, as an Aspect of Appellees’ Racially Discriminatory Policies in the Operation of the Statesville Public Schools, the As signment of Teachers and School Personnel on the Basis of Race. Segregation of teachers in public schools was and is an integral part of the segregated public school system cre ated by law. The Statesville system continues the policy of the segregation era by assigning only Negro teachers to work in the all-Negro public schools. No Negro teachers are assigned to teach white pupils. The Board admittedly has no plans to change this practice (49a), though ap pellants have sought, through the complaint filed in this action, to have restrained, appellees’ racial assignment of teachers and other professional school personnel. In Brown v. Board of Education, 347 U. S. 483, the Supreme Court held that “ in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.” Id. at 495. The Court quoted with approval language of the United States District Court for the District of Kansas setting forth the proposition that “ segregation with sanction of law, therefore, has a tendency to [retard] the educational and mental development of Negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system.” Id. at 494. In its later decision on the relief to be granted (Brown v. Board 21 of Education, 349 U. S. 294), the Supreme Court repeatedly referred to the requirement that school “ systems” be de segregated, and directed that the District Courts “ consider the adequacy of any plans that defendants may propose to meet these problems and to effectuate a transition to a racially nondiscriminatory school system” . Id. at 300-01. Implicitly recognizing the effect that personnel assignments had upon the placement of pupils, the Supreme Court ex pressly listed personnel problems as one of the administra tive matters that courts might consider in ruling upon the timing and adequacy of desegregation plans. Subsequently, in Cooper v. Aaron, 358 U. S. 1, 7, the Court reaffirmed and restated the requirements of the Brown decisions, emphasizing that school “ systems” were involved: State authorities were thus duty bound to devote every effort toward initiating desegregation and bringing about the elimination of racial discrimination in the public school system. (Emphasis added.) Various District Courts and Courts of Appeals have considered the problem of teacher desegregation in recent years and have found that Negro pupils, as an aspect of their relief against a school board’s maintenance of a seg regated school system, may obtain relief against the as signment of teachers and school personnel on a racial basis. Board of Public Instruction of Duval County v. Braxton, 326 F. 2d 616, 620 (5th Cir. 1964), cert, denied, 377 U. S. 924 (1964); Northcross v. Board of Education of the City of Memphis, 333 F. 2d 661 (6th Cir. 1964) ;3 Dowell v. 3 The Court below cited Mapp v. Board of Education of Chatta nooga, 319 F . 2d 571 (6th Cir. 1963) in support of its holding. The Sixth Circuit in Northcross, supra, indicated that it regarded Mapp as supporting the right of pupils to challenge teacher segre gation (333 F . 2d at 666). 22 School Board of the Oklahoma City Public Schools, 219 F. Supp. 427 (W. D. Okla. 1963); Tillman v. Board of Public Instruction of Volusia County, Florida, 7 Race Rel. L. Rep. 687 (S. D. Fla. 1962); and see Manning v. Board of Public Instruction of Hillsborough County, Flor ida, 7 Race Rel. L. Rep. 681 (S. D. Fla. 1962). Furthermore, the Fourth Circuit held that a complaint seeking a transition to a racially nondiscriminatory school system was sufficiently broad to bring before the court all aspects of the school’s operation, including desegregation of staff and faculty. Jackson v. School Board of the City of Lynchburg, 321 F. 2d 230 (4th Cir. 1963). This was, in the very least, an implied holding that teacher deseg regation issues were properly a part of school cases. Upon remand in the Jackson case, the District Judge so regarded it. In that case Judge Michie has entered orders requiring the School Board to present a plan dealing with faculty and staff desegregation (unreported Memorandum dated September 6, 1963, Jackson v. School Board of the City of Lynchburg, C. A. No. 534 (W. D. V a.)), and, later, rejecting a school board plan for teacher desegregation as too indefinite and ordering the board to present a more specific plan (Jackson v. School Board, supra, unreported order dated June 17,1964). In a school system where parents and pupils are allowed to exercise some choice as to which schools they attend, such as that proposed by appellees here, the existence of all-Negro and all-white faculties inevitably works to en courage parents to choose schools on the basis of the race of the teachers. It is evident to all that many parents re gard the teaching staff of a school as important in apprais ing its desirability. Cf. Sweat-t v. Painter, 339 U. S. 629. Certainly, in the context of a school system which has for years been segregated by law, the continued maintenance 23 of all-Negro and all-white school faculties affects and influ ences the parents’ choices, and fosters segregation. This has been implicitly recognized in another context by this Court. See Jones v. School Board of Alexandria, 278 F. 2d 72, 77 (4th Cir. 1960); Green v. School Board of the City of Roanoke, 304 F. 2d 118, 121 (4th Cir. 1962); Buckner v. County School Board of Greene County, 332 F. 2d 452, 454 (4th Cir. 1964). Even prior to the Brown decision the Supreme Court condemned internal segregation practices within a state university such as segregating a Negro student in his use of the library, cafeteria and within the classroom. Mc Laurin Oklahoma State Regents, 339 U. S. 637. Certainly, teacher segregation is more intimately related to the edu cational process than a seat in the lunchroom or the library, as in the McLaurin case. If Mr. McLaurin were “handi capped in the pursuit of effective graduate instruction,” by these practices, then, a fortiori, Negro pupils as a whole are handicapped by the continuation of a practice such as teacher segregation, which, like pupil segregation, was a part of the system of public school segregation premised on the theory of Negro inferiority. Appellants submit that there can be little doubt that teacher segregation is just as offensive to the Fourteenth Amendment as racial segre gation commanded by law or administrative practice on ballots (Anderson v. Martin, 375 U. S. 399); in restaurants {Peterson v. Greenville, 373 U. S. 244); among courtroom spectators {Johnson v. Virginia, 373 U. S. 61); or in public parks {Watson v. City of Memphis, 373 U. S. 526). 24 CONCLUSION For the foregoing reasons it is respectfully submitted that the judgment below should be reversed. Bespectfully submitted, Conrad 0 . P earson 203% East Chapel Hill Street Durham, North Carolina J. L eV onne Chambers 405% East Trade Street Charlotte, North Carolina Calvin L . B rown 235 South Brevard Street Charlotte, North Carolina J ack Greenberg D errick A. B ell, J r. J ames M. N abrit, I I I M elvyn Z arr 10 Columbus Circle New York, New York 10019 Attorneys for Appellants 38