Brief of Swann, et al., Appellees and Cross-Appellants

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INDEX 

| 
| 
| 
| 

sues Presented oa Appeal. eel sini vets twee ee 

tatement Cf the Casi ieee qeortscrcrsscnenss 

Statement of the Pacts... Hd BERLE SR DENI 

ARGUMENT : 

TI. The Present Organizat y of the Charlotte- 

Mecklenburg Se stem Violates the 

Cons stitutional 

Undey Bxown V. 
  

“A, The Schools 

tionally 
Segxr . 

Auvthori 

Black Ss in Black 
By Prom Yi¢ School Seg 

Raiding. cyat LON hs oot a ea 

C. Faculty bDzgegregation Is Incomplete, 

he District 

Limita. of Its aL n I o)b 

Remedy Cor 51s tent wit] vEfirmative 
tO Desegrege 

Lames of Prev 

A. The Court Ordered 

B. The Court Plen Promises to Eliminate 

Segregation. - L ® Ld * [J * Ld L LJ A Ld » . * LJ » - v ® » Ld ® oa » » » . L J » 

The Plan Shou se Upheld 

Is Nic Rat: 1.0: : Bo 15 Upon V 

District Cour Jicaht- Pave  



  

PD. The "Neighl 

Cayinot Justify Contint 
gation in the Charloti 

E. School Bus 

Xducationy Administra Con 

Employed to Dasegreé¢gate Sch 

F. The Neighborhood School The 

supported on the Basis of .H 
X ha | 

C C 

Tradition Because 1t Was Wi 

garded in Order to Promote 

G. There Are No Valid Objectio 
Order Based on Federal or § 

H. The Court Had Inherent Powe 

Expert Assistance on Techni 
Reasonable Procedures Were 

Framing 

ig 2 The Court Balow Was 

: +he Board? 

Than Complete Desegrogalion. 

A. JILegal Standards 
Board's 

Applicable 

B. Racial Balance ed 

Various Proposals i 

gnborhood SchoolY Philosophy 
LE Racial 

8 SCHOOIB einvinis ssn 

ich 

ools 

re
 

bae
r 

1 

i
 

I 

ns to 

tate 

t 
/ 

- 

Saegro- 

sing Is an. Oxdinary Tool OF 
rati May be 

® @o © © © * * eo 

x Xo Ohltain 

Matters. 

Sood in 

to the 

Proposals » » L J » LJ L J - . Ld LJ * - - LJ J 4 > Re . = L ] & LJ La 

Racial Ratios; 
Plaintiffs’ Position and the Court 

EN DE CBO. aid i oinis ie sain swiss vas 

Daecisi 1 EDR ENR ee a Ly LB Lr i ae IRR 

C. The Court's Rulings on the Board's 

- Four P lans . . Mi LJ LJ LJ * Ld * * oo . oO * o - ° < - » * . LJ rd LJ v LJ . . 

IV, r The District Courl .SaiEyld Not Have 

Poned Inplementatid the Plea nn lnt 

‘September LE TER Ca CE ES EE DEI Ee 

Conclusion + ea & & * Oo 0° 0 0 0 i ® © © © © 5» oo 4 @¢ % © © & 8 8 © 0 8 O° ¢ & = 3 . ® @ © & ss oo vv 0 

65 

74 

 



AUTHORITIES CITED 

Cases 

Alexander. v, Hillwan, 295 U.S. 222.1{(1935) 

Alexander v. Holmes County Roard of Education, 

3556:'U.8., 19 {1269) 30,32,53, 

SO 

Bailey v. Patterson, 

Ball v. Maryland, . 378 0.8, 226 

Bell v. School Board of Powhatan County, Va 

Pe28 494 {4th Cix. 1963) 

Bolling v.: Sharpe, .347:U.8S. 

Board of Public Instruction of Manatee County, 

Plorida v. Harvest, unreported ordor of 2pril 3, 

1970 (Supreme Court) 

Bradley v. School Board, 382 U.S. 
po 

Brewer v. School Board of City Of Morfolk, 

F.28 37 {4th Ciy. 1968) 

Briggs v. Elliott, 132 °F. Supp. 776 

Brown v. Board of Education, 34 

Brown v. Board of Fducation, (349 U.S. s OF 36,60,6]1, 

: 78,81 

Buchanan v. Warley, 245 U.S. 60 (1 

Buckner v. County School Board of Greene County, 

Va., 332 v.24 452 (4th Cir. 19564) 

Bush v. Orleans Parish School Foard, 

916 ({F.D.la. 1960), stay denied, 364 U. 8. 500 (1956)  



Page 

  

Carter v. West Feliciana Parish School Board, | U.S. 
a J 24 L.. na 24 382 (XY970Y 5 od as » ee a I SS AE Ss SO 

Continen:al Illinois Nat. Bank!'& Trust Company 

v. Chicago R.I..& P.R."Co., 294 ry 648 {1938 )Y Lt hie 6) 

Coppa iv, Anon, 350 U.8. Lo (1050), ni tenes ates ni 48,53,73, 

| | 
| 
| 

Coppedge v. Franklin County- Board of Education, 

384 .24 410 (1th Civ. 1 Oa a da Le i ae eee aie aie 13 

Corbin v. County School Board of Pulaski County, 

Vas, Xl PR. 24 A Ath Cay 1040) yu tr eainidin nc ve sui se 2 70 

“ County Schocl Doaxrd of Arlin SM County Vv. ; 

Thonpoon, 252 P,24.929 (4th. Ci 1058) a Ne ei sen 

Crisp v. County School Board of Pulaski County, : 

Va. , {17.D.Va. 1950): 5 Race Bal. LL. RBep. 721... vss dsviiv.5. 40 

Dowell vv. Board of Bducation, 244 ¥. Supp. 971 (1.D. 

Okla. 1965), aff d:375 F.24.15%3 {10th Cir: 18567), 

caertLidenied, 30 US. O93 dd O87) ssi nas sine aires wi 59,51. 63, 
. i 

Dowell iv. Board of Rducation, 395 03.5. 26S :{186%)....... "51,90 

agon v. Buffaloe, 198 "W.C..520. 152 S.E. 496 {1830)...0 46 

Goins v. County School:Board of Grayson County, Va., 

1836 7. Supp. 753: :(W.D.Va, 1960), stay denied, 282 

.24d 343 {41th Civ. 1S Shela se 70 

Te Green v. County School poard of New Kent County, 

390 U.8.7430 {1908) csuievensnennsniinssensiveioes svn ecain 15,056,548, 

59.,60,63; 

73,78,75; 

12.,80,81, 

Griffin v. Board .of Fducation of Yancey County, 

186 } La Supp. 511 SD. N.C. dO GY i Cae eine dw eine Tesi wie 6,75 

 



Haney v. County Board of Education, Sevier County 

Ark. 4100.24 920 (BLth Civ. X00) A hy, ene Jaci 

School 

PY ote 

Holland v. Board of Public Instruction of Palm 

Beach'County, 258 "12.28.7730 (5th Cir. 18958). c. 5. 

In the Matter of Pelerson, 253 U.S. 300 (1920). 

Jonas v. School Board of Alexandria, Va,, 278 

¥.24 72, 76 (4th Cir. 1960) . LJ LJ A > Ld Ld . Ld LJ > * . > * LJ » » Ld LJ 

Katzenbach v. Morgan, 384 241 10 RR 

Renp v. Beasley, 8th Cir., Wo. 12,732, March 17 

pF POT AA re CL RR ho RS Se 

Reyes vv. School District No. 1, Dai rr; Colorado 
303 FF. Supp. 279 (D. Colo. 1969), stay vacated, 
1. a 1215 (1.26%) Ld » » LJ Ll . . . » . . . Ld Rd . LJ » . © - Ld » ® - - L J LJ LJ » A Ri . 

~ 

i. 

Louisiana v. United States, 3800.8. 145, 154 

Monroe v. Board of Commissioners, 391 U.S 

Moore v. Tangi 
244 (B.D.1=a, A ” ® @ & © 5 ° © oo ©& oo oo 

NLRB v, RewpOori News Shiphuilding & Dry Dock Co., 
308 Il, 8, 2A) yr. i re ee a ee EGS EE 

Northecross v. Board of Education of Memphis, U.S. 
¢ 38 U.S. bL, Week 4219 (Marchi -9, 1970). cue. vais 

Phillips v. Wearn, 226. W.C, 290, 3; 8.7. .24 89 

Raney v. Board of Education, 391 U.S. 443 

Rogers v. Hill, 280 0.5, 5032-010 33). [oto Sv aass 

Vv  



Page 

  

School Board of Warren County, va. v. Kilby, 
er a» 259 ¥.24 4.97 (41 h«Cir, 1858 ee TT Em ee 69 

Scotl v. Spanjer Bros, Inc., 298 r.248 928 % 
(2na iy: 1962) Ld * » LJ LJ Ld Ld LJ * . LJ Ld . LJ i w Ld Ld LJ } LJ LJ Ld . - Ld Ld Ld Ld - Ld Ld LJ . * Jia LJ 15,76 

Scripps Howard Radio v. PCC i316 U 8.4 "(1043)", 7. 61 

C nN
 

(0
) a i \D
 

AN
 

0
 Shapiro v. Thompson, 394 NL IR NEE 

Shelley No rr ELSI ORN 7 334 U.S PY 1 (1248) e a oo » eo oo s&s J A &  ©& oo ¢ » ° oo oo 16,47, LO 

Standard Oil Co. v. United Statds,. 2210.8, (12811)... 78,81 

“ Swann v. Charlotte-tecklenbu: 
243 PF. Supp. 687 (M.D. R.C. 1985 ] 
229 (41 th C3, 088Y IL a ER 3,4 ,44 

S 
G 

Iic 
ii 

Swift & Co. iv. Wickman, 3832U0.8.1} (1965) 0, nce ain A 

Thompson v. County School Board of Arlinaton County, 
166 } Supp. 529, 532 (1258) » - . Ld Ld . . . - . . * - >. * Ld Ld LJ . . * LJ Ld Ld - . 73 

tarnier v, Memphile, 369 'U.8. 350 {1062.0 vu inn il ine Sip 

United States v. Baldwin County Bourd of Education, 
5th Cir. Ho. 28380, slip opinion | 

é@ United States v. Corriock, 298 U.S. 435 (1936) .5 Jones vin" i6Y 

-United States v. Crescent Amusement Co. 3230.8. 
178. ee Tre 78 

United States v. Greenwood Municipal Separate School 
District, 410 F.2d 1635 (5th Cir. {Ay EEE RE Re et 0 

United States v. Indianola Municipal Scparat 
School District, 410. 7.24 626 (Ory Cir. 1869) 0 on ous 51,64 

tes v. Jefferson County Board of Fducation, 
36. {5th Cilxy. 1965) arr'a en banc 

United Sta 

372 13.248 : 

1957)... 72,75 

ie 
J 

385 {5th Cir. 19067), cor’. denied 309 U.S 840 

 



3 xl —3 Jo = ‘ 3 LR Ap Bw ER —~ -~ st = 
United 2 8 HON vgONeYy Coun =Y Board oF 

Education, OS B.S. 224 A100 i Cy en a a 

United States v, Peters, {U.S.)M, 5: Cranch 115, 

1356 (1.80%) -. . ® L » MM Ld Ld LJ . » Ld - LJ Ld - - LJ . el, L 2 * . LJ LJ Ld » » . - > - * Ld Ld - LJ » 

\ { 
| 

United States: v,.. School District No. 15) of Cook 

County, 386. FF. Supp. 786 {(WD. Wl1l.,), aff'd 404 

kr . 2 a 1 12 5 (7 th Ci i id . l S68 ) * [J . Ld LJ . * Ld LJ . . * - Ld \d LJ - Ld . LJ » LJ Ld LJ . 

United States v. W. T. Grant Co., 345 US 62¢ (1953) 

Valley v. Rapides Parish School Bohrd, 5th Cir. 

No, 29 237 Marc’ VL 0 HL RRC se ane RR i 

Vernon v. R.J. Reynolds Really Co. , 226 N.C. 

CLE DIT TR BR BE RD SRI RE NE SIE Ml Dn SHER 

Virginian R. Company v. System Federation, 300 U 

BG, BE Oy Y i ry es Th a rs rates eh 

Walker v. County Sci Board of Ployd County, Va, 

(W.D.Va. 1¢60), 5 sf % 1. Rep. TX4 ny, ri 

Whittenberg v. School District of Creenville City, 

CA NO RS a 3 96 (D & SC [J Feb * 4 Fa l S 7 0 ) Ld [2 > - Ld > - - - - Ld Ld . LJ . LJ LJ 

 



Statutes and Otheri2uthoritie 

NC.C.8., 115-76) hiss voi 

2800 gan). LL 

le 28 FIR.C.P., 18 U.8.C 

Abrams, Forbidden Neighbors 

Plack, "The Lawfulness of the 5: [4] 

69 Yale L.Jd. 423 (1960)... vaivs 

Coleman Report, Bgualiity of Educa 

nT 0 Sr RIE CLE EYES NIE CE 

McCormick, “Some Cbsexvations Upo: 

and Expert Testimony," 23 Texas IL. 

Note, The Federal Courts and Integration of ] 

Schools: - Troubled Status of the Pupil Placement 2 

Q2 Colum. ya Rav, 14483 (1952 ) » LJ LJ - Ld 2 > Ld -» Ra. L J - - L 3 < - - Ld LJ -. » LJ 

Soutt 

"on Tho Ma 

From the ca 

Racial Isolation in the Pub ran A xeport 

U. SS. Comnisgion on civil Rig 

  

Weaver, The Negro arin pany. LL aa   

Forman, "Race and Place, A Yegal History of 

the Keighborhood School,” {U.8. Govi. Printing 

ACh OE NE EA CL I RE aN 

)  



. 

- Re E ) —- )) Li ] - 1 | - oN Y 4 { tL. C 
i te Sana Te pi S——— 1 & G un ut 

iC V ec : rao -—— > ve E 3 3 4 A 
Com So ] 

LILLE 
Sogo 

. O7 O nN 

A Pu? ] — Nr 

- —y A i 

Lind, Ac 
——— ol —- - 3 - 3 

. as 10 <Q ] S —— Sys 
OY © C&O! N00] YL oN 

INO 
~\ Co 

 



| : 

IN THE 

UNITED STATES COURT OF APPEALS 

FOR THE FOUR CIRCUIT 

Nos. 14,517, 14,518 

  

JAMES E. SWANN, et al., 

Appellees and Cross- 
“Appellants, 

Ye. 

CHARLOTTE-MECKLENBURG BOARD 

OF EDUCATION, et al., 

Appellants and Cross- 
Appellees, 

  

On Appeal From The United States District Court 
"For The Western District Of North Carolina 

  

BRIEF OF SWANN, ET AL. 
APPELLEES AND CROSS-APPELLANTS 

    

ISSUES PRESENTED ON APPEAL 

I. Whether the present organization of the Charlotte- 

Mecklenburg school system violates the constitutional rights 

of Negro children to attend racially nondiscriminatory public 

schools under Brown v. Board of Education, 347 U.S. 4&3 (1954), * 

  

349 U.S. 294 (1955), and Green Vv. County School Beard, 391 U.S. 

430 (1968). i 

   



. JI.” Whether the district ccurt acted witnin the 

Proper limits of l1ts equliable discretion in fashioning a 

remedy consistent with the affirmetive duty to JesonPonate 

the schools and to prevent a re-ovourrence of the segregated 

system. 

III. Whether the district court was correct in rejecting 

the school board's various desegregation proposals for less 

than complete desegregation. 

ISSUES PRESENTED ON PLAINTIFFS' CROSS-APPEAL 
  

IV. Whether the district court erred in postponing 

implementation of the plan until September 1970. 

Preliminary Statement 
  

nis brief is submitted by the plaintiffs below, Negro 

school children in the Charlotte-Mecklenburg public schools, 

who are appellees on the school board's appeal from an order 

of Pebruary 5, 1970, requiring implementation of a desegrega- 

tion plan in the district. The board also zppeals several 

earlier rulings dating back to April 1969 in which the district 

court held that the system was racially discriminatory and . 

rejected various school board proposals. This brief is also 

submitted in support of plaintiffs' cross-avpeal from the dis- 

trict court order of March 25, 1970, postponing implementation 

of the plan until September 1970. 

-  



©. STATEMENT OF THE CASE   

Black parents and children filed this action in January of 

1965 seeking the desegregation of the Charlotte-Mecklenburg 
~~ 

consolidated school system. The flrst district court decision 

was issued in July 1965 (243 F. Supp. 667). An appeal was 

taken by the plaintiffs and this Court affirmed in 1966 (369 

P.24 29), 

The plaintiffs reopened the case in September of 1968. 

The subsequent proceedings {eading to this appeal have been 

extensive. The court has entered more than a dozen opinions 

and orders. The case has been fully tried and considered by 

the district court. 

We have organized our discussion of the proceedings below 

intozeight parts, each involving a somewhat separate episcde 

in the case.’ The district court in its Supplemental Memorandum 
; 1 

of March 21, 1970 (Appendix II, Item 1 tad provided an 

extremely useful summary of the case. Our statement which fol- 

lows is set out in more detail. 

I. Litieation in 1965 and 1966 
  

The city and county systems had operated as separate 

administrative units prior to 19561, Attendance zones were 

established in 1965 for all schools, except 10 all-Negro schcols, 

for the 1965-66 school year. At the same time the board extended 

  

1/ Citations to matters _ found in the volume captioned Appendix TI 

are designated "IAY followed by 'a page number. 'E.g., April. 23, 
1969 Order, IA la. Matters printed in Appendix IJ are designated 
"IIA" followed by an item number. E.g., Notion fdr Further 
Relief, filed September 6, 1968, IIA Item 1. 

Res  



© 

. } 

an unrestricted right to transfer to 2ll students subject only 

to space limitations.” Thus, the assignment plan instituted 

"in 1965 is essentially a zoning plar with freedom of choice. 

his plan approved by the district court in 1965 and by this 

Court in 1966 has continued through the present (1969-70) 

School ‘year, ” | 

When the case came to trial in the summer of 1965, the 

plaintiffs' complaints centered upon four issues: ten inferior 
~ - 

schools serving, 4,000 black students still having dual zones; 

gerrymandering; Faculty integration; and the: free transfer 

policy (343 PF. Supp. 667), | 

The district court accepted the ponvdis assurance that the 

ten schools would be phased out within he Jears and probably 

within one year and found such a timetable to be acceptiable. 

As to gerrymandering, the court held that the plaintiffs had 

failed in their proof. The court modified the board's policy 

looking toward "ultimate" nonracial faculty assignments by subi 

stituting "imme dl ath" for="ultimate.” The court found nothing 

wrong with the transfer policies which had resulted in the 

transfer of all the white children living in Negro sb iardames 

zones to white schools. 

Plaintifrls appealed. This Cont. in a decision rendered in 

October 1966, affirmed, noting that all of the ten black schools 

had beer. closed (369 F.2d 29). The essence of the holdings of 

  

2/ For several years prior to 1965, the beard had operated under 

a minority race to majority race {transfer policy for zoned : 

schools. | 

—4 —  



| - 
| 
| 

| 
| 
| 
| 
| 
| 

t 
| / 

the district court and the court of appeals was that the board 

~ 

had no affirmative duty to desegregate, 

      11. The Green and Brewer Motions and the April 

1969 Order. (September 1968 - April 1969) 
  

‘ | Er | 
Following the Supreme Court's decisions in Green v. County   

| 

School Board of New Kent County, 391 U.S. 430 (1968); Monroe v. 
  

Board of Commissioners, 391 U.S. U50 (1968); and Raney v. Board 
  

  of Education, 391 U,8. 443 (1968), and this Court's decision in 

Brewer vy. School Board of City of Norfollr, 397 7.28 37 (1968), 
  

the SLoAREL ory filed a motion in September 1968 praying the 

court to direct immediate affirmative steps to eliminate all 

present racial discrimination and all vestiges of past discrim- 

ination (IIA Item 1). The plaintiffs engaged in extensive dis- 

(See docket entries 28-46.) The court heard testimony 

days in March 1969 and received inte evidence numerous 

exhibits. 

On April 23, 1969, the court entered its first opinion and 

order (300 F. Supp. 1358; IA la). The court made detailed and 

extensive findings and conclusions. The court found that the 

system remained segregated both as to pupils and faculty. 

In its recent Supplemental Memorandum the court summarized 

the April Order as follows: | 

However, certain significant findings and conclu- 

slons were made which have been of record without 

appeal for eleven months. .These include the folloving: 

1. The schools were found to be unconstitutionally 
segregated. 

2+ Freedom of choice had ralled; no white ehild 
had chosen to attend any-black school, and freedom 
of choice promoted ratirer* than reduced segregation. 

—-5-  



| ; 

3. The concentration of black population 

in northwest Charlotte, and the school segre- 
gation which accompanied it were primarily 
the result of discriminatory laws and govern- 
mantal practices rather tran of natural 

"neighborhood" forces. (This finding was 
re-affirmed in the order of November 7, 1969.) 

i. The board had located and controlled 
the size and population of ‘schools 80 88.10 

maintain segregation. 

oF The plan approved and put into effect 
in 1965 had not eliminated unlawful segrega- 
tion. 

6. The defendants operate a sizeable fleet 
of busses, serving over 23,000 children at an 
average annual cost (to state and local govern- 

‘ments combined) of not more than $40 per year 
per pupil. 3/ 

7. Transportation by bus is a Joshilimate 
tool for school boards to use to gonegrens te 

schools. 

8. Faculties were segregated, and should 
be desegregated. 

9, Under Groen v. New Kent County School 
Board, 391 U.S. 430 (1968), there was now an 
active duty to eliminate segregation. (IIA 
Item 43, pp. 2-3.) 

  

The court directed the board to submit plans for faculty 

and student desegregation by May 15, 1909. What was required 

Ya plan for the active and complete for faculty desegregation was 

desegregation of the teachers in the Charlotte-lecklenburg school 

system, to be effective with the 1969-70 school year" by "seeking 

to apportion teachers to each school on substantially the same 
~ 

  

3/ In response to defendants’ mation to ‘amend the supplemental 
findings, the court has re-examined’the evidence and found that 

the total figure is closer to 420-00" rather than $40.00, 

lye  



ratio (about three to one) as the PALI Of white teachers and 

black teachers in the system at large’ (300 FP. Supp. at 1373). 

As to students, the board was "directed to submit 4a plan 

and a timetable for the active deservenation of the pupils, to 

be prodonthstoy effective in the fall of 1969 and to be com- 

pleted by the fall of 19700 :{31d8.)i 
——— 

III. The May Plan and the June 1969 Order. 
(May - June, 1969) 

    

On May 14, 1969, upcn application by defendants the court 

granted a two week extension of time for filing the plans. 

The next aay, plaintiffs a of all School eon 

struction contending that actions taken by the board demon- 

strated that the plan to be filed would not approach constitu- 

tional standards and that further construction would reinforce 

the dual system for years to come. 

The defendants' first desearemation plan vas submitted on 

lay 28, 1968 (IIA Item 6). On June k, 1969, the court added 

the individual members of the board as defendants and directed 

the board to answer certain questions (IA 32a, 352), 

The plaintiffs filed objections to the plan and moved for 

contempt citations of the defendants claiming that members of 

the board had deliberately violated the requirements of the: 

April 23 order (IIA Item 10). 

The court held hearings on the board's plan on June 15, 17 

and 18 (IIA Item 11). In an Opinion and Order entcred June 20, 

Eh 55  



| ) 
1969, the court found the plan lacking in every respect (300 F. 

Supp. 1381; TA 36a). The court noted that the superintendent 

had developed ¢nd proposed a plan tc tlre board which woud have 

desenvenalod the ‘faculty as ordered and would have produced 

some further student desegregation for the 1969-70 school year 

(Superintendent's Plan, IIA Ttem 12). The court noted that 

"[t lhe Board then met, struck out virtually all the effective 

provisions of the superintendent's plan, pid anked for more time 

from the court ...." (300 P. Supp. at 1333), The court addressed 

the issue of gerrymandering which had been passed over in the’ 

April Order and found that the board had controlled zones of 

black schools to keep the schools all-black (300 F. Supp. at 
1385). A new plan was required by August 4, 1969. 

    

    
  

IV. The July Plan and the August 1969 Orders 
(June, July and August, 1969) | 

The board filed its second plan. on July. 29. 1969 (IIA Item 

37). The plan was reviewed by the court on August 5.106090 (IIA 

Item 19). The plan provided for the transportation of 4,245 

inner-city black students to outlying white schools. Of these 

children, 3,000 would come from 7 schools which were being closed 

and 1,245 would come from overcrowded black schools. The board 

proposed some further faculty desegregation Por tha fall and 

complete faculty desegregation for 1970-71. ‘The board would 

retain all other racially discriminatory featurzs of the school 

system. It did propose, however, to study its bul lan Propring 

and such measures as altering attendance lines, pairing, 

eG  



   

        

clustering and other techniques in order to dovaion a compre- 

hensive desegregation proposal. 

The plaintiffs objected to the Plan on the grounds that it 

left many schools segregated for yet ahobher year and placed the 

"full burden of desegregation upon black children. 

The court, in an order entered on August 15, 1969 (IA, 

25a) approved the proposed pupil reassignments for the 1969-70 

Sonoe? year "only (1) with great reluctance, (2) as a one year 

SBunerary Sai rahmenent and (3) with the distinct reservation 

that 'one-wayY bussing! plans for the years after 1969-70 will 

not be acceptable." The board was ordered to file a third 

plan by November 17, 1969, "making full use of zoning, pairing, 

grouping, clustering, transportation and other techniques ... 

having in mind. as its goal for 1970-71 the complete desegregation 

of the entire system to the maximum oxbent possible.” | 

Upon application of defendants, the ccurt modified the. 

August 15 order on August 29 to allow for the reopening of a 

black inner-city school to serve up to 600 inner-city children 

who chose not to be transported to suburban white schools (IA 

57a). 

V. Motions by the Plaintiffs for Contemnt and Immediate 
Desegregation and by the School Beard for Delay and 
the October and November, 1969 Orcers. 
(September —- November, 1969) 

  

  

  

  

Shortly following the beginning of the school year, the 

plaintiffs, on September 2, 1969, asiied the court for the sccond 
we 

time to find the defendants in contempt for failing to implement 

-0 on 

  

     

   

  

     

 



its July plan as ordered by the SRE] The plaintiffs Punthep 

requested that the reheois be completely desenremated Poni 

dlately (TIA Ttem 21). | i 

On October 2, 1969, the le fendan ts moved for a three- 

month extension of time to file its plan. They claimed that 

they had employed a computer expert {to assist them in restruc- 

turing attendance lines and that it would require additional 

time to prepare a plan. The plaintiffs objected, pointing 

out that the board proposed to affect only a few schools, and 

had rejected such necessary methods as pairing and clustering 

and had already demonstrated in its previous submissions that 

it was unwilling to do what ts necessary to desegregate the 

schools. | 

The court, having before it the motions of plaintiffs 

alleging non-compliance and of the defendants seeking delay, 

‘entered an order on October 10, 1969, requiring the board to 

submit specific information concerning the implementation of 

the July plan and the board's request for an extension of time 

(IA 59a), 

After receiving defendants' report (IIA Item 23) and 

AERA RN TTT TTT the court entered an order denying the 

extension. (Memorandum Opinion and Order, November 7, 1969, 

IA 7la, 73a.) The court held that further extension of time 

was precluded by Alexander v. Holmes County Board of Education, 
    

396 U.S. 19, ‘decided the week before. Yoreover, the court found 

the answers to the questions posed in the October 10 order highly 

=1 0%  



  

| 4 
| / 

unsatisfactory. "By the responses to the October 10 questions, 

‘the board has indicated that its members do not accept the duty 

to desegregace the schools at any ascertainable time; and they 

    

have indicated that they intend not to do it effective in the 

fall of i1o70." 

The court also reviewed the progress under the July plan. 

The defendants' report showed that "only 1,315 instead of the 
  

  

pronounced 4,245 black pupils" had been assigned to white 
  

schools. (The court noted in its Supplemental Memorandum (IIA 

Item 43) that even this figure appeared to be high. The defend-- 

ants'. March 13, 1970, response to plaintiffs’ request for 

admissions showed only 767 black students being transported (TIA 

Item 38).) The court commented: "The ‘performance’ gap is 

wide." . 

VI. The November Plan and. the December Orders : 
(November - Decembery- 1969) 

    
  

The defendants filed their third plan on November 17, 1969 

(IA 8la). The plaintiffs promptly objected (IIA Item 24). Phe 

court issued an Opinion and Order on December 1, 1969, reject 

the the plan (IA 195a). The November submission was a description 

of method rather than a plan. The board preposed to alter attend- 

ance lines to attempt to produce descgregation of some schools, 

but limited the schools to which whites would attend to those 

where the white enrollment would be at least 60%. It rejected 

further consideration of other;mzthods. stich. zs pairing, grouping 
- 

~~" 

 



clustering. There was no assurance of how much, 1f any, 

desegregation would result. No timetable was proposed for 

further student or faculty desegregation. Even as to, what 

; | y T 
proposed, the board stated: adi 

It ‘is important that the Court does not 
construe the information submitted in the 

plan relating to racial ratios of elementary 

students as being in the nature of a guaran- 

tee by the board since if is anticipated the 
results of restructuring the attendance 

lines may produce a greater or lesser degree 

of desegregation, the extent of which cannot 
be determined at this time. 

(See pages 662-673 of "Report of School Board Submitted in 

Connection with Amendment to Plan" in original record on appeal.) 

Faced with the board's acknowledged refusal to produce a 

plan which would comply with the orders of the court and with 

the Supreme Court's decision in Alexander v. Holmes County   

Board of Education, 396 U.S. 19, the district court was consti- 
:   

tutionally obligated to devise a plan, On December 2, 1 9 

court appointed Dr. John A. Finger, Jr. of Rhode Island College 

fo assist. the ‘court in preparing a plan for desegregation of 

the schools. (IA, 195a, 115a.) The board was directed to 

cooperate with Dr. Pinret raid £0 provide him with a place to 

assist 

court again, however, invited the board to bring in a plan. 

-—  



on ror Annet ale DNestiresniion, thie Hopryary 
Boayd Plan, the Pingedy Plan and the February 
1570 Order. % 
(January - February, 1970) 

    

  

On January 20, 1970, the plaintiffs renewed their mctions 

of September 1968 and September 1969 for the smmediine desegre- 

gation of the schools (IIA Ttem 25). The plaintiffs asserted 

that uwndey recent decisions of the Supreme Court and this Court 

they were entitled. to immediate relief. They asked the court to 

Girect Dr. Pinger to file nis S158 for implementation at once. 

The Sour ineYs hearings Sn pialnpI Ls! motion on February 

2, ang. 5, 1970. The board presented 1%s fourth and final plan 

on February 2 (IA 119a). Its plan was again limited to arbors 

ing attendance lines. The Finger Plan, in its final form, "was 

prepared by the school staff and was filed with the court by 

representatives of the school board on February 25-1870" (Sup~ 

plemental Findings, 32; 114 Item 42). The Pinger Plan utilized 
= Ea a 4/ 
other methods such as pairing, clustering and satellite zones 

as well as altering attendance lines. 

On February 5s 1970. the art directed implementation of a 

Plan for elementary schools by April 1, 1670, and for junior and 

senior high schools ‘by May U4, 1970, which incorporated parts of 

both the board's plan of February 2, 1970, and the Finger Plan 

(IA 1433). The court accepted the board's plan so far as it 

produced desegregailion and, where. it fell short, the court sub - 

stituted provisions of the Pinger Plan. Thus, with respect to 

  

4/ Non-adjacent school Zones. 

=13.~  



the elementary. schools, the court ed in plementation of 

the Finger Plan which desegregatec all of the elementary 

“schools... The court accepted pant of the board's plan for the 

Junior and senior high schools but Sivboves that the Poard 

add the satellite provisions of the Finger Plan. 

The order further required the board to offer transporta- 

tion to children "whose attendance in any school is necessary 

to bring about the reduction of segregation and who live farther 

from the school to whicu they are assigned than the board 

5/ 
determines to be walking distance." 

With respect to all provisions of the order, however, the 

court stated: 

The duty imposed by the law and by this 
order 1s the desegregation of schools and 
the maintenance of thaticondition. The 

plans discussed in this order, whether 
prepared by Board and staff or by outside 
consultants, such as computer expert, 
Mr. JolmzsH. Well “or Dr. John A. Fincer, 

Jr. are illustra tions of means or partial 
means Lo. thet end. Whe defernvancs are. 
encouraged to use their full nous how" 
and resources to attain the results above 
described, and thus to achieve rg consti. 

tutional end by any means at their disposal. 

The test 1s not the method or plan, but the 
results. {1s J432% 147a.) (Emphasis in 
orizinal.)- 

  

  

  

5/ The crder was subsequently clarified by deleting the words 
attendance in any school" and inserting the words "reassignment 
to. any school” (Order of March 3, 1970, IA 152a). 

- 

ig  



  
162 

VIII. Appeals, Stays and L Further Findings 
(February - March, 1970) rd 

The school board. and 7 of its 9 members Have. noel oe of 

appeal on Pabrudry 25, 1970, from the order entered on 

Pehruary 5, and ten of the prior orders {IA 15643).  On:lareh 2, 

J870, the board applied fo Circuit Judge J. Braxton Craven 

for a stay of the district court order. ! the plaintiffs 
; : 

| 

N 

responded on March 3, 1970. 

Judge Craven referred the matter Lo the full court and 

on Kavch 5, 1970, the court stayed the portions of the ordar 

requiring cross-busing of elementary students to the paired 

oA 

schools, ordered the remaining provisions of the order imple- 

mented according to the timetable established by the district 

court, directed the district court to make supplemental find- 

ings with respect to transportation and expedited the appeals. 
N 

After receiving additional evidence from the parties, 

the district court filed a Supplemental Memorandum and Supple- 

mental Findings on March 21, 1970 (IIA Items 42, 43). 

The following ‘day the defendants renewed their application g : Mh 

for a stay with the Court of Appeals. However, before this 

Court acted upon defendants' application, the district cours, 

on March 25, 1970, stayed all further desegregation, sua sponte   

until September 1, 1970. The court acted on what appeared to it 

to be a change in the requirements of immediacy since its 

February 5 decision. 

=15- 

 



  

On March 26, 1970, the plaintiffs filed woeioe of appeal 

from the district court order of liarch 25, . responded lin 0opO- 

sition to the defendants’ application for stay in the Court of 

Appeals and moved the Court of Appeals to vacate the stay 

issued by the district court and for an grder directing imme- 

diate osname. The defendants! motion for a stay and 

plaintiffs’ motion to vacate the district court stay are how 

pending. | 

The plaintiffs filed another motion in the Court of 

Appeals on March 27, 1970, seeking dismissal of the appoals 

fromthe orders entered prior to Pebruary 5, 1970. This 

motion is also pending. | 

4. 3 

The activities and obstructive and evasive efforts of 

the school board, state officials and sone private citizens 

throughout this S14 ination are quite reminiscent of the early 

efforts of some states to avoid compliance with Brown. See, 

e.2., Note, The Federal Courts and Integration of Southern 

Schools: Troubled Status of the Pupil Placement Acts, 62 Colum. 

‘L. Rev. 1048, 1450-59 (1962). 

Following the April 23 order of the district court tonal 

and state officials and sone elves citizens initiated con- 

certed efforts to preserve the status quo. In response "to 

the hue dine which had been raised zbout 'bussing' Ilecklenburg 

representatives in the General Assembly of North Carolina sought 

- 

=16 

 



  
£ r— \ 

7 

and procured passage Of "the so-called 'anti-bussing' statute, 

N.C. G.8.115=176.0% LITA Iter 43, p. 4.) Although state 

and local orfieinis round no objections to the board's plan 

in July 1969 to bus 4,245 black students to white schools, 

violent objections were raised to any assignment and Eraninortad 
4 

tion of white students to previously all-black schools. Some 

local citizens organized the Concerned Parents Association with 

the avowed purpose of protecting the "neighborhood" schools and 

preventing "bussing." ,They obtained 3 state court injunctions < 

(January 30, February 12, and on a Sunday night, February 22, 

21970) to thwart or prevent: desegregation of the schools and 

the implementation of the district court "orders. The Governor 

of the State and the State Superintendent issued orders and 

direéErives seeking to prevent any state funding for transporta- 

Clon of students to qdesegregate the schools. 

In seeking to Shbtent the authority and orders of the 

district court, plaintiffs moved on July 22, 1969, for leave 

to file a supplemental complaint to challenge the new anti-busing 

statute and to add the State Sup=rintendent and State Board of 

Education as parties darendants. The court allowed the motion: 

on the same date (IIA Items 1h, 15.16). Ho rovihat procesda 

ings were held on this matter until after the February 5 order, 

since not until then did anyone contend that the anti-busing 

statute would inhibit the school board from desegregating the 

schools, Thus, on February 20, 1970, the or a court 

requested designation of. a three-judge SohL to determine the 
; | 

i 

=17% 

 



constitutionality of the statute (IIA Item 29). Such designa- 

tion was made on Pebruary 23, 19740, 

< On Pebruary 27,1970, even prior Lo the partial stay 
- 

granted by this Court, the school board amounced that it had 

ceased all preparation to comply with the, district court's 
. FJ ju 

order and would follow the third state court restraining order 

(February 22) Since the board preferred the state court order 

£0 that of the district court. The school board further con- 

® sented to an indefinite continuance of the second state court 

order enjoining the board from purchasing or operatine schol 

buses (February 12). The first order, as modified, restricting 

payment to Dr. Piheop remains in effect; he has not yet been 

fully paid. 

“On February 25, 1970, the district court, on motion of 

the plaintiffs (IIA Item 28), added as parties-defendant the 
~ 

Governor of the State, the Controller for the State Board, 

¢ the state judge who l1lssued the February 12, 1970, restraining 

order, and several private citizens ‘who initiated the state 

court proceedings (IIA Item 31). By order dated March 6, 1970, 

‘the district court suspended the third state court order of 

Pebruary 22, 1970, and referred the matter to the three-judge 

court (IIA Item 35). 

After defendants secured a continuance of the three-judge 

court hearing and after repeated ef Torts by the State Attorney 

General and counsel for the additional parties-defendant to 

aisquality tha district judge had falled, the three-judge court 

| 
1 | 
| heard arguments on March 24, 1970.  



STATEMENT OF THE FACTS 

Over the course of the litigation below, the District 

6/ 
Court made extensive findings of fact. Each succeeding order 

‘ | | 

reflects a comprehensive analysis of new submissions of evi- 

dence by the parties and the cumulative evidence already before 

the court. 

The Charlotte—-Mecklenburg School & 
    

= 

The first opinion gave a detailed description of the 

school system, the community wh Lt serves and the extent 

of racial segregation within the schools. (IA 1, 8-11, 14-21.) 

We only summarize here some of the salient facts contained 

in the April opinion. 

The Charlotte-Mecklenburg School System serves more than 

82,000 pupils residing in the city of Charlotte and Mecklenburg 

County. In April, 1969, there were 107 PH including 76 

elementary schools (grades 1-6), 20 junior high schools (grades 

7-9) and ll senior high schools (grades 10-12). The system 

employed approximately 4,000 teachers and nearly 2,000 other 

  

6/ Significant findings are contained in eight of the orders 
leading to this appeal: Opinion and Order, April 23, 1969, 

{TA 1): Opinion and Order, June 20, 1969 ia 36); Order, June 

24, 1969 (IA 443A); Order, August 15, 196% (IA 45); Memorandum 

Opinion, November 7, 1969 (IA 73); Opinion and Order, 

December 1, 1962 (IA 105); Order, February. 5, 1870 (1A. 143): 

and Supplemental Findings of Fact, March 21, 1970 (11a, 1ltem 

42) . 

~19.5  



employees. The racial composition of the students in the 
‘ 

system was approximately 71% white and. 29% ‘black. The 

L] 

esidential patterns of the.county were sufficiently integrated 

In}
 

so that most of the county school zones included both black 

and white students. No all-black schools remained in the County. 

In the city, however, the residential areas were and are gen- 

1/ 
erally segregated by race, and most schools were racially 

identifiable. 

® The court .found that 14,000 of the 24,000 black students 

in the system were attending schools which were at least 99% 

black. {IA 15.) ' The courl further found that most of the 

desegregated city schools .were in transition from a previously 

/ 

all-white enrollenent to all-black. 

The school system had been growing at approximately 3,000 
Y | g PE Y 

students per year, requiring an on-going school construction 

program. With few exceptions, the size and placement Of ‘the 

7/ Most of the evidence cancerning residential segregation 

was produced at the March 1969 hearings. The April order 

describes the housing patterns and some of the forces which 

created them. ‘The matter is examined agein in subsequent 

: orders, particularly the Order of November 7, 1969. (IA 13.) 

The court's conclusion was that housing segregation in Charlotte 

has been substantially determined by governmental action. We 

describe the underlying facts in a subsequent section. 

« 

  

—_—, 

8/ In June, after further analysis of the data, the court con- 

cluded .that approximately 21,000 of the 24,000 black students 

in the system lived within the city of Charlotte and that nearly 

17,000 of them were attending black or nearly all-black schools. 

The figure is even greater if the black students attending 

schools which are rapidly becoming all-black are included. 

Lo (Supplemental Findings of Fact, June 24, 1969; IA 44-3) (See 

J also Chart at IA 104 (Footnote continued on next page.) 

- 20 

 



ss
 

£
 

¢ 

| 

recently constructed new schools p 

all-black new schools. {IA 17.) 

roduced eithgr all-white or 

10
 

The court found faculties segregated. The great adorivy 

of the 900 black teachers were teaching in black schools. 

There was less than one white teacher per ‘black elementary 

school. The two black high schools had teaching staffs more 

than 80% black. 

The court concluded that the board's policies of zoning, 

free transfer and its school. placement had contributed to and 

continued an unlawfully segregated public school system. It 

also concluded that the faculties had not been desegregated as 

required by the 1965 order. The board was directed to produce 

plans for.the active desegregation of the pupils and faculties 

by May 15, 1969. 

Gerrymandering   

In the April opinion the court passed over plaintiffs’ 

assertions that school zone lines had been drawn and maintained 

  

8/. (Continued) which lists 11 schools which served 5,502 

white pupils and no black pupils in 1954, which served 5,010 

pupils of which 35% were black in 1965 and which in 1968 

served 5,757 students, 81% of whom were black.) The court also 

found that nearly 19,000 of the more than 31,000 white elemnen- 

tary students attended schools which were nearly all-white. 

There are only 150 black students attending these schools.) 

More than one half of the 14,741 white junior high school stu- 

dents attended schools with a total black population of 193. 

'9/ The new black schools were generally "walk-in" schools 

while the white schools were placed some distance from the 

areas which they serve. (IIA; ten 42.) 

=2%~ 

 



Din 

to fo 

After 

fOr. Y 

| 
| } 

ster segregation because the court had assumed that the 

| 

board would develop a comprehensive desegregation program. 

the board filed its May Plan which included no proposals 
| { 

ezoning or for altering basic assignment patterns, the 
: | : 

court specifically found a pattern of gerrymandering. 

"[I]t 'may be timely to observe and the court finds as 
a fact that no zones have apparently been created or 
maintained for the purpose of promoting desegregation; 
that the whole plan of 'building schools where the 
pupils are' without further control promotes segregation; 
and that certain schools, for example Billingsville, 
Second Ward, Bruns Avenue and Amay James, obviously 
serve school zones which were either created or which 
have been controlled so as to surround pockets of 
black students and that the result of these actions is 
discriminatory. These are not named as an exclusive 
list of such situations, but as illustrations of a 
long-standing policy of control over the make-up of 
schocl population which scarcely fits any true 'neigh- 
borhood school’ philosophy. (Opinion and Order, 
June 206, 1969, IA 36, 42.) 

The Impact of Segregation on Black: Students 
  

The court found that the impact of segregation on black 

students in the system had resulted in the denial of equal 

educational opportunities. Comparative test results showed a |S 

wide disparity in achievement between students attending all- 

black schools and students attendiag white and integrated 
-t wt 

schools. (Order, August 15, 1969, 1A 45, 52; Opinion and 

Order, December 1, 1969, IA 105, "109; Supslemental Findings 

of Pact, March 21, 1970,. 115, Item 42, p.9'). 

27.  



The Schools Today 

In the Novembe) Memorandum Opinion the court set out in 

detail the racial characteristics of the {school system during 
-~ 

the 1268-70 school year. {In-73,..75-77.)1 Iniits rec ent Supple- 

1 Memorandum, the court quoted these November findings. 

(IIA Item 43, pp. 7-9.) The oourt concluded that there had. been 

no real improvement from the segregated situation found during the 

previous school year. 

"Of the 24,714 Negroes in the schools, thing above 

8,500 are .ttending ‘'white' schools o: 1s not 

readily id ntifiable by race, Mor ), how- 

ever, are trwiocusly still in a ll-Hlne r predominantly 

Black schon. a. «The 9,216. "in. 100% plait situations 

are consic Hhly more than the number of black students 

in Charlot: = in 1954 at the. time of the first Brown 

decision. ~2 black school problem has not been solved. 

The scho:ls are still in major part se prognted or 

Jual' rathor than desegregated or 'unitary'.” 

(15.73, .76) 

Analyzing the same figures in a later order, the court 

pointed out that "Nine-tenths of the faculties are still obvious ly 

black’ or.'white'!. Over 45,000 of the 59,000 white students 

still attend schools which are obviously white." (Opinion and 

Order, December 1, 1969, IA 105, 108.) 

The court also determined that the free transfer provision 

in the board's plan negated any progress which the July plan  



: 10/ 
might have produced. It. also found that attemplls jesegre- 

gate the schools by altering attendance lines would continue to 

1s long as students could exercise a freedom of choice. 
= 

724) 

  

In the Findings of Fac April 23,1969, Charlotte and 
IS 

Mecklenburg County were described as follows: 

4 "The central city may be likened to an automobile 

hub cap, the perimeter area to a wheel, and the 

county area to the rubber tire. Tryon Street and 

the Southern Railroad run generally through the 

county and the city from northeast to southwest. 

Trade Street runs generally northwest to southeast 

and crosses Tryon Street at the center of town 

at Independence Square. Charlotte originally grew 

along the Southern railroad fracks., Textile mills 

with mill villages, once almost entirely white, 

were built. Business and other industry followed 

the highways and the railroad. The railroad and 

parallel highways and business and industrial 

development formed something of a barrier between 

east and west. 

By the end of World War II many Negro families 
~~ 3 ~ 3» ig Fo i -~ nd fg Pp Ju dl - 73% cw a 

lived Xl} the concey On Charlotte SHEE ease OF 

  

The court had made similar findings in June: 

"Freedom of transfer increases rather than decreases 

segregation. The School Superintendent testified that 

there would be, net, more than 1,200 additional white 

students going to predominantly black schools if free- 

‘dom Of transfer were abolished." . (IA 36, 40.) 

Moreover, during the choice period prior to the 1969-70 ‘school 

year, two .vhite students out of 59,000 elected to transfer 

to black schools and only 330 black students out of 24,000 

chose to transfer to white schools... (1d.) | 

Wang 8, E00  



| 
} bh / 

‘Independence Square in what is known as the First 

Ward-Second Ward-Cherry-Brooklyn area. However, 

the bulk of Charlotte's black population lived 

west of the railroad and Tryon Street, and north 

of Trade Street, in the northwest part of town. 

The high priced, almost exclusively white, country 

was east of Tryon Street and south of Trade in the 

Myers Park-Providence-Sharon-Eastover areas. 

Charlotte thus had a very high degree of segrega- 

tion of housing before the first Brown decision." Y/ 

Today the degree of segregation in housing is even more 

pronounced. 

There are approximately 365,000 citizens in the County; 

approximately 270,000 reside within the central city. 

Approximately 90,000 of the inhabitants in the city are 

black and % of the black inhabitants reside west of the 

Tryon Street-Southern Railroad dividing line. (Ira, Item 4 ry 

PP 41-76, 77-83; See also Plaintiffs! FPxnhibits 4 and 

& 
Box 1 of Original Record on Appeal.) As found by the 

Court, several factors have-contributed to the city's 

gated housing patterns. 

l. City Zoning. City zoning practices have played a 
  

pervasive role in creating and perpetuating the separation of 

{£ 
the races. PRBeglmning in 1957, with the first zoning ordinance, 

the city clearly delineated the black and white residential 

   



areas. All white residential areas were zonegd residential 

with restricted land usage. ‘All black residential areas 

were zoned industrial with multi-land usage, including heavy 

7 / multi-family homes and nigh density areas. (ITA 

Item 4, pp. 578-581, 657-678; Plaintiffs’ Exhibi in Box 

1 of Original Record on Appeal.) This difference in the 

zoning practices. for black and white veri dantind areas has 

- 

been carried forward to the present day in 12 major revisions 

r- of the zoning ordinance in 1962. Industrial zones have 

continued to be restricted to black residential a; 

Additionally, what 

ized for the black ity 

zones, R-6 and R-S NO black residential area in the city 

today has a higher density zone than R- while principally 

all white residential areas have restricted zoning of R-12, 

R-15 or above. (IIa, Ttem 4, pp. 582-586; Plaintiffs’ 

Exhibit 10 in Box 1 of Original Record on Appeal.) 

2. '€ity Planning. City planning has further enforced   

segregation in housing. In a comprehensive proposal in 1260 

entitled "The Wexi Twenty Years,"  (Plaintiffs’' Pxhibit 12 

in Box l of the Original Record on Appeal) the City Planning  



LJ 

Commission proposed he continuation of kasically the same 

discriminatory zoning practices with high density zoning and 

multi-~-land nsage in black residential areas and restricted 

zoning in the white residential areas. This proposal was 

largely enacted by the City Council in the revised zoning 

code OF 19862, (IIA, item 4,.Dp. 562-572 ; Plaintiffs’ axhibit 

10 in Box 1 of the Original Record on Appeal.) 

  3. Urban Renewali. Urban renewal has contributed to the 

residential s egation by relocating black families from 

urban renewal areas to black residential areas. Principally, 

Cot Jara 
all of the black citizens who are relocated by the city urban 

renewal program have been relocated in black residentizl areas 

and the few white families who have been relocated, have been 
= J 

relocated in white residential area: A similar practice has 

prevailed in the relocation of families uprooted by new streets 

and highways. The District Court characterizes this practice po J -r 

as follows: 

"Under the urban renewal program thousands of 

Negroes were moved out of their shotgun houses 
in the center of town and have relocated in the 

low rent areas to the west. This relocation of 

course involved many ad hoc decisions by individuals 

and by city, county, state and federal governments. 

Federal agencies (which hold the strings to large 
federal purses) reportedly disclaim any responsi- 

bility for the direction of the migration; they 

> 

27-7  



reportedly say that the selection of urban rencwal 

‘sites and the relocation of displaced persons are 

matliers of decision ("freedom of choice"?) by local 

individuals and governments. This may be correct; 

the clear fact however is that the displacement 

occurred with heavy federal financing and with active 

participation by local governments, and it has fur- 

ther concentrated Negroes until 95% or so of the 

city's Negroes live west of the Tryon-railroad area, 

or on its immediate eastern fringes. (IA, p. 11; 

IIA, Item 4, Dp. 587-598: Plaintiffs’ Exhibits 13, 

14, 195 and 42 in. Box 1 of Original Record on Appeal.) 

4..Public Housing. Consistent with the city's zoning   

practice of providing for low-income housing in black 

residential areas, all public housing, now principally 

in black residential 

areas. (IIa, Item 4, pp. 588, : Plaintiffs Exhibits 

39 and 42 in Box 1 of Original Record on Appeal.) 

5. Streets and Public Highways. Streets and public 
    

highways have further perpetuated the barriers between the 9 : 

races. Streets have been designed to provide ease of communi- 

cation only within the white or black residential areas with 

little measure of communication between them. Additionally, 

one of the major interstate routes now being constructed 

through the city, the North-South Expressway, further marks, 

along with Tryon Street-Southern Railroad, the division be- 

tween the racially separate residential areas. {(TIA, Item 4, 

5 8—-  



~ PRLS = YY an ray 3 fF Fer Ea DUE Sg. i 3 ry 595-508: "Plaintiffs sxXnabai 13: in ‘Box 

Original Record on Appeal.) 

6. Private Discrimination. Private discrimination has 
~~. 

a pervasive role in establishing the racially seqgre- ped 

housing pattern in the city. Blatks simply have been 

. EK) 

or the right to purchase or rent in white resi- 

Fe dential areas. Construction firms and real estate 

racially segregated as, 

1 west OF 

- 

Southern Railroad dividing line and white 

east side of the dividing line. Prior 
J 

Rights Act, 42 U.S.C. 433501; et.seq,., Fi estate agents were ~ 

= TRE : 

bound by their code of ethics to perpetuate the policy of 8 

discrimination. (11a, Item 4, pp. 41-717, : Plaintiffs! 

Exhibits 33, 34 in Box 1 of the Original Record on 

Appeal.) 

* In the November decision the District Court put together 

its previous findings on forces contributing to residential 

segregation in the City of Charlotte and the suizsayguent 

findings of gerrymandering by ») Poard. The court 

concluded: "There 1s sO much State action imbedded in and 

shaping these events that the resulting szgregation is not  



innocent or 'de facto', and the resulting schools are not 

- 
'unitary' or desegregated." (IA 73, 76-77.) 

Tra msportation 

The court First considered the matter oF Fe the transportation 

system operated by the defendants in ihe April 1969 order. 
EL) 

"Charlotte-Mecklenburg School Board today for example g 

orting 22,000 students on school buses. First wo | I 

the largest group 80 transported.” (IA.1,::17.) ..7The court 

considered the cost of transportation. 

"The present cost of ‘school busing is about $19 

for bus operation plus the cost of the bus which 

at $4,500 per bus should not exceed $20 per pupil 

a year. In other words, it costs aboul $40 a year 

per pupil to provide school bus transportation, 

out of total per pupil operating costs of about 

540." {IA 1, 17-18.) 

This figure first determined in April of 1969 and repeated in 

several subsequent orders was not challenged by the defendants 

until March 25, 1970. (ITA, Item 44.) The defendant then 

claimed that the figure was too high. Apparently, the Court's 

calculations overestimated the replacement cost of a bus per 

pupil and overlooked the fact that new buses are inititally 

purchased by the local board but replaced by 

The court also observed that buses had been used for many 

schools and that there is "no reason except 

=30)-  



emotion (and I confess to having felt my own share of emotion 

on this subject in all the years before 1 studied the facts) 

why school busses can not be used by the board to provice the 

: 4 2/ 
flexibility and economy necess: desegregate the schools.™ 

Busses are cheaper than new buildings; sing them might even 

keep property taxes down." (TA), 18.) 

Facts relating to bussing were next considered by the 

court in the August 15, 1969 order approving what appeared tobe 

the transportation of 4,200 black inner-city children to out- 

lying white suburban schools. The board report file 

port of its July plan (IIA Item 18.) included a statement by 

the board explaining the transportation requirements for the 

~~ 

3,000 black children from the seven schools which would be closed. 

  

12/ The school board took full advantage of the emotional possi- 

bilities of the "bussing"issue and fed and encouraged community 

hostility to thig and all aspects Of the court's April order. 

In reviewing the Board's first plan the court observed: 

"In a county and city criss-crossed by school bus 

routes for 23,000 pupils, more than 20,000 citizens, 

most from affluent suburbia, many of whose children 

undoubtedly go to school on school busses, signed 

petitions against 'involuntary' bussing of students. 

The frenzy of parents received a ready forum in 

televised meetings of the Board." (Opinion and 

Order, ‘June 20,1969, 11x 36, 37.) 

31  



"But what are the implications of the plan from the 

standpoint of the cost? . The Board intends to offer 

the transferred students transportation. This will 

cosl money- both to buy the equipment and to operate 

this equipment. The Business Service Department 

estimictes that we would need to spend an additional 

$98,000 for the extra vehicles needed and that the 

operating cost would be about $30 per pupil or 

about. .$90,000... By comparison, commercial transpor-- 

tation costs are estimated at $45 per pupil or 

$135,000 per year. A maximum estimate of transpor- 

tation costs for the 3,000 pupils from the seven 

closed schools using our own department would be 

about $188,000. "137 

The report went on to explain that $330,000 worth of 

mobile units and eguipment would be necessary at the schools 

receiving the black students. The board thei: indicated that 

money was available. 

"There are, however, some figures which might be 

examined on the other side of the ledger. The 

$383,000 slated for purchase of a few additional 

acres for the Metropolitan High School site could 

be used for other purposes. The $100,000 used to 

add to the Zeb Vance property could be reclaimed 

through sale. 3ond monies tentatively allocated 

to some of these schools could be restudied. Much 

of the property could be declared surplus and sold." 

  

13/ 
These "maximum" figures of transportation costs for a plan 

which the board wanted to defend becawre relevant for the court 

when it considered transportation needs and costs for the 

February 5 plan. $98,000 produces 18 busses at $5,400 a bus. 

18 busses transporting 3,000 students is an average of 1lll stu- 

dents per bus. The supplemental findings of costs made by the 

Court on March 31, 1970 were entirely consistent with the 

estimates made by the board in June of 1869. 

-32-  



board indicated in June of 1969 where money cculd be 

- 

bf desegregation, including transportation. 

1 In this connection, it should be remembered that less than 

one-quarter of the children scheduled to be assigned to white 

schools were in fact ever so assigned and therefore most of 

4 

. . - J 

the money available in July of 1969 has not been spent. In 

addition, the board owns quite a few abandoned gchools, in- 

cluding the seven closed in the summer of 1969 as part of its 

desegregation plan having a value in excess of $3,000,000; 

= 

which "could be declared surplus and sold." 

When the court entered its order on February 5, 

2 requiring mid-year desegregation, the matter of transportation 

was again reviewed: 
SN 

\ 

"IT IS ORDERED: 

7. That transportation be offered on a uniform 

non-racial basis to all children whose [reassignment 

to any school] is necessary to bring about the reduc- 

tion of segregation and who live farther from the 

school to which they are assigned than the oard 

determines to be walking distance. Estimates of the 

number of children who may have to be transported. 

have run as high as 10,000 or.more. Since the cost 

to the local system is about $18 or $20 a year per 

pupil, and the cost to the State in those areas where 

the State provides transportation funds is about 

another $18 or $20 a year per pupil, the average cost 

than $40 per 
et is about 

for transportation is apparently less 

‘pupil per ycarx. The local school budg 

-33~  



a year. It would appear that transpor- 

additional childre: 1f that 1s necess- 

to pay At all, would 

add less than 1% to the loo: cost of operating the 

schools. The significant point; however, is that 

the cost is not alid legal reason for continue 

denial of constit ional rights {ITA 143, 145-1446 

additional 

findings with respect to transportation reguired by the 

February 5 plan, the court held hearings on March 16 and 17, 

1970 and received into evidence 31 exhibits offered by the 

* 8 Ip : : 14/ 

plaintiffs and 15 exhibits offered by the defendants.” 

—~° 

The supplemental findings were entered on March 21, 1970. 

The findings were addressed to several issues. The court 

determined how many children would require transportation 
IN 

RN 
= 

under the several aspects of the plan; how far the bus trips 

would be and how long they would take; the number of busses 

required to transport the children involved; the cost of 

purchasing the busses; the availability of busses and funds 

for their purchase; and the annual cost for the operation of 

the additional transportation. 

  

—' Box 5 in Original Record on Apneal; see lists on last three 

pages Of Index of Record on Appeal; and Vol. XIII, Deposition 

of J.D, Morgan. :  



These findings axe fully supported by the record. The 

Court had before it the detailed Principals’ Transportation 

Reports required by. the zal - the transportation already 

SER Tn within the system, ei dents showing the extent and 

ost of transportation within the State; the maps from which 

could be determined the distance of any bussing which might 

be required, the board's statement from the summer of 1969 

trans sportation requirements for 3,000 black inner-¢ity: -< 

children to outlying white schools (IIA Item 18); 

davits and testimony of State and local officials; 

variety of other information concerning bussing,— 

¢ourt found that the plan would require substant 

\ | : 

transportation than the board had claimed. However, the court 

would have been remiss had it accepted at face value, without 

[3 can examination of the underlying facts, the assertions of these 

defendants who have sought at evexy turn, for over a year, to 

avoid the desegr ~egation of the Charlotte schools. The court 

did not do this. After receiving the voluminous evidence, it 

undertook the laborious task of making an independent and 

  

15/ =2/ The relevant evidence supporting the Soi Findings are 

found in Plaintiffs Txhibits 1,2.,3,4,5,6,7,8, Soh Yb), }2; 

13,15,17;18,20,21,22,24,25,26,27,28,29,31 and Do eat hE 

pyxhiibits 1-156 in Box 5; and Volume XIII and Folder in Box 1 

of Original Record on Appeal.  



{IIA Item 42, p. 18.) The cvourt 4id, how 

ever, accept the basic facts offered by the board: 

"The > accept it-Face value, For the most. 

part, the delendants' evidence of matters of 

independent fact, but is unable to agree with 

the opinions or factual conclusions urged by 

counsel as to the numbers of additional children 

to be transported, and as to the cost and diffi- 

culty of school bus transportation,” (113, Item 

42, Pp. 17.) 

The court found the additional transportation required 

plan to be as follows: 

Net Additional,g, Number of B 

_Transportees Needed   

Senior High : 20 

Junior High 28 24 100,000 
= 

= 

Zoned Elementary ’ 10 +52 ,000 

Paired and Grouped 

Elementary : 320,000 
; $532,000 

  

freee: As to the number of >nts for whom busses will be needed 

see "Discount Factors." Wi om. 42, p.-17.) See, also, the 

ies between the number of stu- 

dents and those who choose to ride the 

bus. Estimates run as high a: LATIN, Item 42, 0p. 5, 6). 

It is unlikely that the numbe f students will be as high as the 

court found. 

¥7/ RE Sy SEE : . hp En hl 
The number of busses required is arrived at by determining 

distances and probable routes. The totals thus achieved are con- 

sistent with the average within the system (IIA, Ttem 42, vp. 2,3 

and 7) and the projections of the board for .the 3,000 black stu- 

dents under the July, 195% plarn. (ITA, Item: 18; see also 111A, 

Item 42, ‘p. 8.) Most of. the bussing is "short range” with 

"capacity loads." {IIh, Item 42, p.:21.) 

Sl  



The board's plan of February 19" would have required 

transportation for at least 5,000 students in addition to those 

now being transported IA; Item 42, 1 2 The ntial 

difference between the two plans in terms of the amount otf 

transportation required is the transporta ition needed for the 

20/ 

paired or grouped schools which the court found to be 8,00. 

[ og : 1 

The bus ing for the paired elementary schoo 

efficiently accomplished by running an express bus between the 

¥ 

3 The cost figures represe 1 annual cost of $4 

We would submit that the boa projection of $3 

for the 3,000 black students last summer would be 2 

needed. (ITA, Item 18.) .1 e3 ver event, the total is 

tion of 1% of the local bud Lf some $57,000, . {TIA, 

42, p..20) | 

19/: a naw i E- os 
ZZ! vhese figures are the result of detailed examination and 

measurem2nt of each SR zone and the figures i dh by the 

school board. Most of the reassigned children who live more 

than a mile and a half from school live less than two miles from 

school and many are likely not to ride the school bus even though 

eligible. 

20/ The transportation required for high school students under 

the Finger plan is approximately 300 more than under the board 

plan, the 300 being the black students the 
assigned to Independence High School. 5 the 

and the testimony of the Superintendent shows num 

Junior high school students to be transported er or Finger 

plan is about the samé as under the board Tah He the trans- 

portation under the board plan would be considerably more diffi- 

cult and expensive. (IIA; Item 42, pp... 7.) Theyre ig less bussing 

in the zoned elementary schools under the Finger plan than under 

the board plan because the "Finger" zones are more compact. 

    

-37-  



21/ 
least wo runs per bus. 3 paired schools which would allow for 

The court also examined the Cc present try anspor rtation system 

operated by the defendants and tha extent of transportation within 

The State.  In'this context, additional: transportation resulting 

from the February 5 order is put in perspective. Examples of 

the conclusions which can thus. be drawn are: 

lJ. There is nothing novel about trans; porting city children. 

Ohded Hovkh Carolina law, children living within the 1957 city 

limits are not provided trans portation at State expense How-- 

ever, children living within present city limits but outside 

— 

Ox the 1957 city limits and residing more than a mile and a half 

~ from school are eligible Fox 1sportatic Also, children 

living within the city but assigned to schools outside of the 

1957 city limits are provided transportation. (IIA, Item 42, 

Pp. X72.) An examination of the Principals’ Trans portation Reports 

reveals that a great many city children are in fact riding school 

bussesg.evexry day. (Plaintiffs! Exhibil{ 27 in Box 5 of Original 

Record on Appeal.) It should also be remembered that the board 

itself proposed to transport 2.200 hinck children from the 

city to suburban schools for the present school ye 

Item 42, p. 8.) And the board's February 2 plan requis 

tional tra ansportation for approximately 5,000 children. A large 

portion of this transportation would take place within the 

City, (TIA, Itent 42, DP. 17.) 

  

21/ See Finger deposition, Plaintiffs' Exhibit in Box 5 
Original Record on Appeal. The busses in the system today 
average 1.8 one-way trips. (IIa, Item 42, p. 

EL  



Moreover, the present State Superintendent of Public 

Instructioc is predecessor and the prestlgious 1965 Report 

of the Governor Study Commission on the Public School System 
  

of North Carolina have A recommen aed at transportaticn be 

provided for all childreh, city as well as rural, on an equal 

(Supplemental Findings, IIA Item! 42, 

children in the State ride school busses 

to and from school daily. (1JA, Item 

aboul 30% of the children in the Charlotte~Meckle cg system 

ride school busses. When the February 5 oxder-is tnnlorented, 

legs than 45% of ithe children will xi busses. 

3. The bus trips between the paired schools are shorter 

and will take less time than the average bus trips of the stu- 

now being transported in the 

(IIA Tem 42, v0v 2: 74.8 Plaintiffs?! Exhibit 31 in Box: 5 

of Original Recoxd on 

A. The additional transportation costs yeguired by the 

court order are a tiny fraction of the total school bu 

{13iA, trem 42, Dp. 14,207) 

5. Resources to purchase and operate the buss 

hand. (IIA, Item 42, p. 8; and see, IIA, Item 18.) Except 

for the busses required for a few hundred students, State lav 

-“ 

provides that the State rather than the local system pay almost 

all of the operational costs and all of the replacement costs 

-30--  



  

22/ 
for the busses. —— The court also found that t 

equipment was at all times available from the S 

the manufacturers. (Zn, tem 42, pp.+.1 21-22.) 

have been placed. 5 

6. Extensive bussing has been a method fo 

and racial discrimination for years. fuel 

Plans 

The board has submitted four plans to the 

which has been unsatisfaclto] The court ~\J : 

oh 

the plans submitted by Dr. Finger, The plans 

cribed fully in the Supplemental Findings (IIA, 

  

our Statement of the Case and are analyzed in 6 

x 23/7 7 iP : Tx sn 

Argument. == We would consider it unduly xepe 

the plans another time here. &. 

22/7 y J4- - . — 1 oF - 

i (IIA, Tten 42, p..19.) State officials ax 

funds for transportation under th 

Carolina Anti-Bussing law, G.S. :115-176.1, 

ne: Nnecess 

ana 

No orders 

r segrega 

court, 

ave been des- 

Item 42), 

stail An-our 

Ltitive to describe 

Ti ow 

ary 

from 

+10n 

each of 

also had before=it 

"in 

withholding 

c because of the Noxth 

The constitutionality 

and applicability ‘of that law to the situation in Charlotte 

is under cons ideration by a three-~judge court. 

23 
— 

1 

Argument IIA treats the plan which has been 

ment IIT discusses each of the plans offered by 

~40- 

. 

ordered; 

the board. 

Arcau-— 
pe 

 



\ ATS RID 
i 4 ARGUE iialv ly 

atl Lon of the 
Nock lend burs Ra g 

Constitutio: 

Under Brown Vv, ard ol "Toucatlon. 

The Schools Are Still) Unconstitution Ty 

by’ Ra CE, 
  

The Charlotte-Neeklenburg school system 

court below to be unconstitutionally racially 

record amply supports that finding and conclusion. The descgre-- 

gation plan now in effect provides. for assignment of pupils by 

geographic attendance zones.with pupils allowed 

to Stvend schools outside thelr zones of 

bgtantially the same XK of plan: 
2 i 

Court and found wanting in Monroz v, 

391 U.S. 450 (1968); and Northecross v. Board of Education of 

38 U.8.5L. Week 4219 (March 9, 1978). In April 

the court below concludzd that: YThe neighborhood 

cept and fredoin of choice as administered zre 

degegregation? (300 .F, Supp. at-1372; 14 £5 The judge 

made detail indings about the state of desegregation in ( 
(Sn) 

  

24/ The court found that: 

"Freedom of transfer incr 

decreases segregation. 
tendent testified thet 

more than 1,200 aaditic 
going t -cdominatel 

recon 2 : Vi 

Supp. at  



, AT a : -; 3 bt Anil ~ Loo age 

1968-69 300 PV, Supp .-at 1367-5685; 14 42-215) scp eone luding 

4 that the Yrural hools are largely desegregated” but that 

the "City schools a sti argely segregated” (1d.). Among 

24,000 black students, over 14,000 attended virtually all- 

black ) JS > was Tound that "most i 8 fully desegre- 

gated ciiy schools ave >t stable in that situation, but are 

rapidly moving (through a temporary desegregation) from an 

all-white to an all-black condit 

There has been virtually no progress 

tion during the past year. The current 

in the November 7, 1969 order (IA! 762) 

Supplemental Memorandum of March 21, 1970 {IIA Item 43): 

Of the 24,714 Negroes in the schools, some- 
thing above 8,500 are EE RE white! Echools 
Oy .8¢cho0ols not readily joontlifgenia by. race, 
More than 16,000, hey 
Th ail-Giack cr php EE 14.€ 

The 9, a tk situations 

ably more than the number of di ¥ 
Charlotte in 1954 at the time 
Brown decision. The black 

10t been solved. 

The schools are still in 

gated or “dual” rather than 
4. 

"unitary 

A measure of progress was 

1969, plan which was approved for one year only. but even- 

tually the court concluded that there had been 

between the board's promise and performance with the result 

  

Sec also 

Order of August  



stead of the promised 4, 

were transferred to white schools (November 

.JA 74a). Even worse, the manner 

~ 

plan was administered threatened to transform some integrated 

schools into all-black schools threatening 2 Yrapid shift 

from white to black, [so that] the net result of the 1969 

pupil plan would be nearly zero"  (id.). 

The ‘cour ialso found, based on expe rt testimony, that 

there were available educational techni Llgques such 

pairing, clustering and providing transportation 

it feasible to desegregate the system (30 

JA 165), 

These. findings, in the context of 

viously segregated by law, are sufficient to support the 

Gistyrict court's decision that there is onstitutional viola- 

tion and that the board had a a ffirma to dismantle 
+ 

the segregated system. Green v. County School Board of New 

Kent County, 391 U.S. 430 (1968); Monroe v. Board of Commis-   

    391 U.S. 450 (1968); Rane Board of Education, 391 

(1968). Only a few weeks ago the Supreme Court unani- 

mously reversed an opinion of the Sixth Circuit which erred by 

substituting 1ts own finding that there was no longer a dual 

school system in Memphis where the trial court's findings that 

- 

the dual system had not been dismantled were "supported by sub- 

stantial evidence." HRorthecross v, Board of Education, 38 
" era a ————— i a cai ——————— ———  



2, Jor the Sixi] ircult acceptec but the reversa 

repudiates, the argument that lemphis converted to a 

unitary system with. only so-called facto or law rut segre-- 
a. 

gation. Monroe, supra, and Hort theross grea sufficient answey 

£2 

to the Charlotte board's claim that the system already 1s a 

unitary system in compliance with Broun. 

Notwithstanding that the plan in effect In Charlotte- 

Mecklenburg was (and basically still is) the plan approved by 

Judge Craven as District Judze i 243 F. Supp. 667), 

and affirmed by this Court in 1966 

Mchillan correctly held that it DES t meet current stand- 

ards. Noting the impact of Green v, County School Board, 391 

), the court concluded that the board has "a duty 

ositively to fashion affirmatively a school system 

free as possible from Lhe lasting effects of 

: 27f 
apartheid. {IA Ta.) 

  

27/ Judge McMillan Sern rnd Green to repug ¢ prior holdings 

by the former district judge that the boa: nd court have no 
duty to deliberately change zone lines "in order to increase 

mixing of the races.,? 243 PRP. Supp. hi 670. This Court had 

affirmed, the majority opinion stating that "there ls no con- 
stitutional requirement that ... [the board] act with the 

conscious purpose of achleving the maximum mixture of races Lin 
the school population. Ve understand that the school board 

8311 relies on this yeasoning, We believe it t6 bez incon- 

sistent with the affirmative duty announced in Green,  



hori LL cs Crieatz2d Black SC ho nl i | 
re . = 50 LT ¥ 

1 ~N Fy Cr \ \7 i ys . op ta . © je 
orhioods - baa OI lS va nf 4 2a {1} oi Of greg 

court below about the manner 

vas Cre Arto in the Charlouvte 

emedies necessary 

system. Judge McMillan found 

schools in black neighborhocod 1arlotte were baslcally the 

result of governmental action, and hence constituted "state 

getion! subject to the Fourteenth Amendment. Judge 

found: 

court fin 

have app ncly hear 
the purpose of poe: noting 
the whole plan of "bu 

pupils arc’ arc 
of TYP NT 4-3 A 7D Segregation 

serve school 

2b Or which have 

rround pockets of 
result of these 

- < 

 ]
 

(J
 

© 

2 

\ 

led 
- 

\ 

iy 

< 

=
O
 

cf
 
ot
 

Me
r 

LO
 

l
e
 —
 

rT 

TD but as illustrat 

of control over ihe 
tion wnich scarcely fi 

school" philosophy. 
IA 42a.) 

PR
 

ee
 

Sl
 
r
a
a
t
 =

 

The court made findings that the board 

attendance arcas {to promote 

schools toc promote segrega nd used the school 

transportatio ystem to promote segregetio The court 

held that residential segregation was promoted by public authori- 
EH - L! 4 

ncludinz the s lL practices which encourayed such 

other public agencies,  



Judge FMceiillan summarize 

Vorags: 

b lac) prints 

i aenclis 

thelr 

The 

b Ia ek res 

nake 

the 

SOO 
2 Cp 

In pre vi 

Tocations 
tion he 

summa ri zed, 

prose locatio: 

and of black 

vesult of a 
anda private 
strength ori 

or: local govern: 
include among 

the ra 
a.cconmm 

yar 

al 

and 

that 

Nay 

school 

ich sf 

events 

innocent 

are. not 

can be little 

for crec 

racial restri 

commonplace (as they 

the state's judiclary 

Carolina courts 

unconstitutional state 

( 194 §). HNozth 

Buff 1 cl loc 30 Vv, 

= 30 

Ua ng 

Letive govens 

ent 

action 

nN of 

schools 

ied 

actior 

gi nal 

group of 
on 3 2 

Ly" Trom public 

nental action. 
4.1 nC others 

CON 
oo 

black-neishb: 
es, | 

ieddeq in 
< 1 4. 3 I org oe 

facto anac 

OL 

S \.-: 

EF La 

de legitimate 

residential 

8g) Le 3 

Charlotte- in 

orced such 

did), until the Supreme Court 

in 

ghes?t 

152-3.F. 

all deriving 

u 

the 

desegregatl 

tir segreg 

on 

Shelley 

mo 

are 

basic 

state 

their 

aw or 
m hese 56 ellen 

of 

Lic 

St 

o
 

or
 

1a Sg arhoons ‘ 

and 
Carr ot 

J. 

WE 
EE 

Yr Sch 

ed. io 

the governmental 

YT ation 

covenants 

held 

« Rrpepner, 

court uphe 

~ Cr 
CLA) 

clements of public 

ents 

iction 

001s 

16a-T7a.) 

in a commun- 

gal property are 

North 

that 

Iernon vv,  



  

TY or Fo” yy Lt E51 1 hh, I A = yon 7 = 4 iff 2 Realty Co, 226 H.C. 58,36 S.E.2ad 710 (1946); 

Phillips, supra, the North Carolina court in 1946 upheld a 

racial condition prohibiting Negro occupancy in property in 

The significance of the state's enforcement of racial 

restri ctlve covenants is that this device was the functi onal 

and practical equivalent of residential segregation laws and 

ordinances, Shelley vas argued to the Supreme Court on this 

basis (by the Solicitor General, among others) as Mr, Justice 

Blacl has described: 

} 3 ibd [a “1 rag l d 4- ) or 4 4- 4 3 ry Ny . 4 2 0) 4. This type of agreemont constituted a restraint 

O 1 erpe- ont alienation of property, sometimes in 

LG, was in“ realist 3 t 

of and had. the effect of stat 
4- ~~ 

| 9) 

u
t
 

e
t
 

a
e
 

MD
 

racts. . {Bell v, Faryland, 378 vate c¢ 

32 0g (196 ~
~
 

municipal zoning laws accomplishing the 

kind of racial discrimination as if tho State 

had passed a statute instead of leaving this 

objective to be accomplished by a system of pri- 
ont 

96 1Y,. ¥r, ‘Justice Diack, dissenti 

The United States Commission on Civil Rights observes 

that after the Supreme Court outlawed residential segregation 

  by law in 1917 (Buchanan v. Harley, 245 U.S, 60), a number of 

cities continued to enforce such ordinances for many years, but 

that "as the prohibition in Buchanan, supra, gradually took 

effect, the raclal restrictive covenant gained widespread use." 

    Racisnl Ysolation ln the Public Schools, A Report of the U,. 8S. 

Commission on Civil Rights (1867), Lezal Appendix 4 

Indeed the Conmission!'s formal Findings aboutl the causes of 
> 

hy 

 



residential segregation in the United States are e itive 

corroborative of Judge hciillan's findings of governmental 

involvenent: 

He Hlth ities, as within metropolitan 

areas, ere 18. ¢ .£h degree of residential 

segragatlol reflected in the schools-—--for 

which responsibility is shared py both the 

privat using industry and government. 
{ 

(a) The discriminatory practices by 
landlords, lending institutions, and ree 
estate brokers have contributed to the 

dential confinement of Megroes. 

(hb) 8tate andilocal povaInaSLe 
Lydimtes to the Joni OF 

ation through such past 
racial poning ordinances and 

1ts5 capable of judi- 

practices in such 

perans publi GC 

NA 3 z - i- 2 

concent Yao 

Cyerping 

a on 

of be Se pactal Se oRanLYE ation. ei 

yanonns policy is insullficlentlyconcerne 4 

the impact of relocation on raclal concentra- 

Yions within cities. 

6. Individual choice contributes to the 

vintenance of residential segregation, although 
mpact of suchscholice iis Gifficult. to assess 

She housing ma rket has been restricted. 
Ll: Tsolation in the Public Sehools, supra, 

[ 

: 
e 

2 > “3 

LG CA,   

The Commission also reported that the policy of the Fedesral 

1s: and 1940's 

impetus Co housing crimination (id. at 254). - The Federal  



k} RI ET \ 1% \ y 4- v NYT ¥ h “wy ~ v1 " i 4 -3 “ N -—~ re 3 
Housing Authorid RY not Mm Ly Soong 1e { A318 1 racial 

y 

covenants, but even afl 

mission reports, 

3 +I er v (Fe 3 CY YR PE Im vn Is > Yio I et in housing as a reason { denying benefits 

| 

(1d. at 254: ing Abrams, Forbidden Nelghbors, 

and Weaver, The Negro Ghetto, 11-73 

Findings. about the Chylotte experience, based on the cvidence 

weed at tric}; are ently corroborated by the national 

experience as repor 

fhe Court of “Appeal 

that a school board could 

black school zone vhere a 

had confined Negroes to that ares of the 

3oard of Public Instruction of Pelm Beach Couniy, 

132: {56h Clr. 1958)... The court 

CORD  By residential segregation | he rv 5 lity ordinance, 

wholly unrealistic to assume that the complete 

existing in the publlc schools is either voluntary or the imne- 

rules not based on race,” Accord, seco 

Dowell v. Board of ¥ducation, 244 F. Supp >~17 (M.D. 

Okla. 1965), aff'qd 5-B,.28°355 {10th Cir. 1967), 

387: 1.8. 631 (1967). 

state other than the mpe lle he residential 

segregation, For, as th ri. made plein in. Cooper v. 

Aaron, 358 U.s. 1, 

off the  



that private 

ing contribute 
<> 

has found, the 

slzes 

tion results 

those choices 

of pearance 

~ 

of Norfolk, 

boards 

district court was 

Ve believe 

39 

cannot 

hat 

the Y“vindi- 

sslible by 

y the fac 

iclillan 

nade choices in loc ating schools, 

structures 

Hous ing secgrega- 

context of 

} school board. 

segregation in the 

f governmental de 

er V. Board 

( 

build 10 segregation on a founda 

designe gd. Lo invole the principle amounced 

disor: 

results I*'O! 

bulld jts exclu 
as rate i 1] 

ils to nel 

it cannot bo or 

hborhood 1s denied 

ground color, OL 

omitted.) 

B 

F 

fd
 

c£hbor 

footnotes 

the Bre: er doctrine  



a.% ra 

Cl1Iac Circuit 
3 -t 

oy 

, I] 

they tend "to gin 

“ » ZY OP 
Seor 22 

yal. Municip Separate 

1969); 

[} S 

Ll 

hoo F.2d 682 (5th 

. Q - 
FN OED arate 

v. h=Sc 

by or 
20 

Tisdale lunicipal 

geographic 

cstablish 

nited ST ates 

40 

schools lt 

Dist., 5.7.24 >chool 

fe Cc 

4A 

; «Dy 
TOoOd   

3 IA SY athe 
lepldes I IES 

1970. Sec Dowel } Vv. Boa Tr da of I Edu call ON   

UNV, Supp. 

Cir. 1967), cert 

Educa Lion 
SI 

of Board 
ts 

Colo 

i. - 

vacauve 

Ci Faculty De 2 pg BCEICE 

schools (300 

proposed a ffeasib 

gation in Sepieember 

school board. 

- 

board did 

  

Vio 

tea 

4 a, 

So) 

*&, go, 

ocion: 

has “gls pade findjl L.Ngs 

to eliminate faculty 

Tr. Supyaiet 1370: 12 

by ithe yocord, 

complete plan for tot 

butt was rejected 

Supp. at 

POL this r SF 
.. 

i 
3 3 that 

Apr 

the 

33] . 

court 
ry re 

f~ Cz 960 

in ning 

in 1 a 

SIE TrS the ao 

- 

& che 

C3 

oo 
Oot 10 GO 3 

S 

% 3 

Ql 

“A 

pLtable 

y Sp) 

inl 
£14 
LC 

. Org LW Ents 258 

al 

only 

po Ea Cir. 

Dist, School 

Indiano la 

1369); Ll 

riarch 

Vv. Sehoo). 

(1869), 

Ve Ea 
ao i 

~ Yr * 

> 

. 4 - 

S u cl y 
t 

Valley 

O 

 



cont 

United Staves ery County Beard 

Education, 395 B.S, 224 90 Bradlc Sehool Board, 382 

U.S. 103 

D. Negro Children in Charlotte 
Equal 

IA 

ience about the educati 

Regro c¢hlldre ‘he finding--base 

ment 

formablce (c pe) he government's natlonal study called 

the yleman Repor quality of Educatlicenal Opportunity 

foung 1 n the evidenc that: 

xeregatlon 
makes little ifference 

hot an iecreplli or modern 

ioned. 

pparent 

cduce an Nn lye in 

ei 

barr je ze 

August 

In his December 1 pinion (IA 1085 
5 

asscmbled cvidence standard achievement tests showing tnat 

4 on JLTRE ICR via Ten wy : o or) SE Se : a cd ry Ady 
sixth graders A Ll-bluck 5 ols sCore yL abhout a 

i [er J 

i  



achievement tests 3 measuring instruments, the res 8 do con- 

vey an unmistakeable message, tha SE CIS fo.have profoundly 

impressed the trial judge 

tem inflicts on Negro children. 

any such loca 

conutitutional rig! and inherently 

precious the right of a student not © eg segregated on 
~ 

racial grounds i oe) 5 nainta’ } is indeed so funda-- 

mental and pervasive 

process of law." 

ing Bolling 

50 long 

stem remains set. “1ts elimination ig anh urgent 

Alexander v. Holmes County Joard-of E 

 



OP er 

er a mah en 2 % 
oN eork or y 0S (¢ a 

~ rre fey d 

Peaslible! Court Lrdered a Feasible! Pl: 

MelMillan was cognizant of the 

that no Yuniversal answer" "one plan 

every case Gx reen, 

scicntious and deta 

an expert consultant, 

proposals 

IenesSs 

The plain truth. lis 

i aS ible 

off some pupils 

the esscntlizl 

wold ‘bus abouts 5 J0 more 

be Lhd 
of about 28,000 but 

The board's plan 

The board's plar. vould 

  

29/ See 

standard for sa 
plan. The 

and practica 
oul rational 

Pann 

on cllat 

"CL es 5 

aE 

Pra, with 

oi The 

judgments 

be upheld unless 

30, 

ride Charlotie 

31/ 
a 

children 

600 

very 

pupil 

 



chborig od 

anges would 

The court pla 

tion to rezoning, and ner 

than the board's proposal r-tbotal of 30, 000 

every all-black and majorit; ck. school produce 

go 3 tia RE eal i 
SY ster Hoe . hh o.0 Np UN SPR FS 2s QO Nov 

y ears 

served thelr prade levels, 

The children bused under : he yder "will not as =a 

group Lravel a 0, nor will 

~~ vrs vey 4a . ’ : in : able Te 5 Nye - " ywesent the averape one--vay 230 1 he systen 

fourteen minutes and 

than an hour Tor a one-way 

under the court plan Tor 

h) 

32/ The board plan would PIC pduce 9 elementary gch 
to 100% black serving over hall of the Maan ¢lementary 

pupils. February 5. 0rder Iye¥e vd would leegave 

mont Junior Hich 905 blac 3 Ci 
(X2:1528), Pebruary 5 hb 
Supp... Findings, 1: epreogation © Sof Laren 1g yonne 
Irom 89% .to 90% black A a ja 

S3/: Bang ve 21% of the student pop 
blacks Ader § ) ; % 

(IIA Item  



12 
Brens— 

portation required 3 “mp lem: 

arrange sive and 

ac 

board budget. The board!’ cost, 

“ ~ ’ ol ee Z 2 4 3 
ypumenes  weye rejecied hati 

effort to interpret the cours 

and burdensome. Under 

smaller perc Of pupils Mecklenburg 

state-wide average. 

«The court-orde 

5 Judge regarded as. S 

separately 17 necessary: 

i Senior High PJ 

Zones board. 

  

average aa: ly attenden 

in 19 166-59. "40.9 perc 

LL 

2 
[8  



SE ~ o anh 
yacht on the other scho 

inh £ School 

The 

other choices 

1S: Provide 

Junior 

ard 100% black under 

ay busing 

> 

practice engrafted 

gates every 

student ratio varying from 97 at 

The court found the approx 

board 

| educational cholee in choosing 

other three methods" for changing 

gate Piedmont. (Supp. Findings 

would be less pensive and easier to 

proposals erLalin sc 

cnvisions use 

Re 
T0008 LO 

be 2 Te BATT » yey 
ooeo. several. 

5 . o> 
the board 

4. 

to dese: 

to the: boarGgls 

(except that 

Yi: he ‘plan 

the boa en to. Gesogro  



    

v:.School Plan, 

5 
1713 NYY YI Serle "» — r eS. rf TY Ty 4. ~ ct yi oy be hg ”) i 1 Nad | 4 

The court ordercd plan desegregates 27 schools by rozon- 

2 : - ~ don im ~~ o Ng, } a a 

ing. The other 3h elementary schools (10 black and 24 white) 
} 

4 

SON rely 3 xr . “Terr Ver ons RY TI A x Laie TE dia yn ; x Yoyiey de ; 

are desegregated by changing the grade structures S50 that the 

present black schoolw will teach grades 5 and 5 and the present 

ah 4 «nY wi paren ry pen ! m ~'vY v wr yo tam i 3 An nS ae 3 

white schools grades 1-4. The schools arc grouped znd paired 

a A aad vn Yd i ey RL Re) OS Sg Ta eg , Ya ers ing : Yovirey ioe B03 < 

p and pupils are transporved between black arcas in noruvavesy, 

3 TPT +37 Tv vils oy sh 4 Tr Dr Sir - 
Charlotte and suburban white school srcas. 

a. i'The Rezonad Group of 27 Schools, The rezoned schogls 
POPC Vo man so ——— da on en 

  

have compact attendance areas with most pupils within 1-1/2 

miles of thelr schools. Only a few unes wlll be requlreq-- 

the sgourt thourht 10 or less vould be adeguate, ‘ne schncol 

board has no valid basis for objection to this pari of the 

4 

plan which is consistent with the board's clementary plat 

w although of course the zcnes differ in detall. 

- . . Kh, KJ “3 . ~ ! wc es oh phn . 

b. Pairing and Crouplng 34 LBlementary Schools. 

+ > va 4 3 ~ } -} Se Tr Nl N + d= a » vi Cr - - Yip YS ry 4 « ~~ Y 

As mentioned, the grade structures of these scheols are 

changed so that the forinerly black schools will serve grages h 

and 6 and the white schools will teach grades 1 to 4. The plan 

involves 10 pairs or groups of schools listed in Exhiblt K to 
t 

the Pebruary 5, 1970, order. (IIA 1612). The court found that 

the transportation required by this segment of the plan would 

ol ~ VY x77 « TE 1vAa - 1%; \ ( “TIT: | . +3 . ny = #15 4 mel rity) Yel bs "ey Tams 

Anvolve ag maximum Ol 6,000 D pills who mignt requlre a maximu 

£ 
§ % 

 



court's requircme 

Thls phase 

puplls (15,30) white and 7,077 Hegro) Ye 1X4 161%). 

given year, 10,303 whites would re 

schools in grades 

blacks from northwest Charlotte (id.). 

sbout 2,261 blacks would remain in their 

where they would 

YI Oy - T}- yy ¥) y a 2 ' 1 To alle: Rt } NWI CYL van 
reas Ll : Fed 113.4 aco in 102% 1 RL vhiich -prescry 

the neighborhood principle, 

ee 

ca 

i S ny ible, 

Charlotte-liac cklenburg 1s needles 
03 

The Cour{ Plan Promises to Eliminate 

1. Lo a rE 
trict court has 

4 

present unconstitu- 

d- 

Tha. court plan meets. L seincipal teat of 

Green v rd of Meu 

2). he plan does 

and provide a unitary system of 

Sup. 

Cnly 237 hundred studeni: 
Fd 

arc not entitled to transportat:  



irean Sup? Green 

an will 

-~ 
bh would 

ordered plan 

pon ~ 

Ve Fpprovea 

he trial judrels agments 

about matters relating to the leasibllity 

plan must 

onal basi 

ncellior's 

necessarily 

ge Of Qlaugration must b nec in order 

Gr Sen,  



6bu8, 677 (09; 

ol 2B x Eo 
LEE 

the publi 

broader discretion in 

system Federation, 300 U.S. 

2.0.00, 318 man, 
ala 4-15 ~ E118 
ase ne Sup 2%; called 

framing rell 

on the courts 

teble 

3p il 

forms gas 

to the emaqgles 

gicly 

enforce to 

Llexander ¥. Hillman 18h. 

Where g 

in secor 

stitution 

appellzai 

"reasonable! 

  

1 5 

300 (1955) 

equi 

| 3 3:0 4 

IPPs H 

£4D 
a > cond 

in 

4 
vO 

Qvle 

 



Uni J. ted 

4d. 

amount 

cope 

. re i Ei a 1 y avmAlc Necessary 7 the board's 

4-1 ~ 2 Es 
IV) DeYiod 

ovo 5 
LE 

political unpcepulerity 

Arnos SHOE 

Court On numerous occasions LC hie urt uscd 

«hoe 
Nr a) IRL A 

gto CoS ry 

workable i ) such a produc "rom the elected 

; ] 

_Hedghbor] Hi Senool” 3 tosophy 
nin tho Gh 

board secking 

4. 3 “= 
2L1LON5S 54 

school theory,  



 
 
 
 

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