Nesbit v. Statesville City Board of Education Brief for Appellants

    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