Motion for Leave to File and Petitioners' Reply to Brief of the United States

     [||58692fed-c4aa-4d58-a100-02969dc21b93||] Nos. 281, 349, 436 
  
  

IN THE 

Supreme mut of the United States 
OctoBER TERM, 1970 

  

JAMES BE. SwaANN, ef al, 

Petitvoners, Cross-Respondents, 

y, 

CHARLOTTE-MECKLENBURG BOARD oF EDUCATION, et al., 

Respondents, Cross-Petitioners. 
  

BIRDIE MAE Davis, ef al., 

Petitioners, 
y, 

BoaArD oF ScHooL CoMMISSIONERS OF MoBIiLE County, et al., 
  

ON PETITIONS FOR WRITS OF CERTIORARI TO THE UNITED STATES 

COURTS OF APPEALS FOR THE FOURTH AND FIFTH CIRCUITS 

  

  

MOTION FOR LEAVE TO FILE AND PETITIONERS’ 

REPLY TO BRIEF OF THE UNITED STATES 
  

  

JACK (GREENBERG 
James M. Nasrit, III 
MicHAEL DAVIDSON 

NorMAN J. CHACHKIN 
10 Columbus Circle 
New York, New York 10019 

J. LEVoNNE CHAMBERS 
ApAM STEIN 
CHAMBERS, STEIN, FERGUSON & LANNING 

216 West Tenth Street 
Charlotte, North Carolina 28202 

C. O. PEARSON 
203145 East Chapel Hill Street 
Durham, North Carolina 27702 

ANTHONY G. AMSTERDAM 
Stanford University Law School 
Stanford, California 94305 

VERNON Z. CRAWFORD 
ALGERNON J. COOPER 

1407 Davis Avenue 
Mobile, Alabama 36603 

Attorneys for Petitioners and 
Cross-Respondents 

  

   



IN THE 

Supreme Court of the united States 
OcroBeEr TERM, 1970 

  

James EH. Swann, et al, 

Petitioners, Cross-Respondents, 

V. 

CeARLOTTE-MECKLENBURG BoarD or EbpucatioN, ef al. 

Respondents, Cross-Petitioners. 
  

Birpie Mak Davis, ef al., 

Petitioners, 

Vv. 

Boarp or Scroon Commissioners oF Mose County, ef al. 
  

ON PETITIONS FOR WRITS OF CERTIORARI TO THE UNITED STATES 

COURTS OF APPEALS FOR THE FOURTH AND FIFTH CIRCUITS 

  

MOTION FOR LEAVE TO FILE REPLY BRIEF 

Petitioners respectfully request leave to file the attached 

reply to the brief of the United States. This reply is being 
filed less than three days before the time the case will be 

called for hearing. See Rule 41, Rules of the Supreme 

Court. 

The brief of the United States was filed on October 6 
and received by petitioners’ counsel on October 7 and 8.  



    

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Accordingly, it was not possible to complete this reply and 

have it printed for filing until October 10. Special arrange- 

ments are being made to serve counsel who will be arguing 

the case, prior to the arguments. 

Respectfully submitted, 

JACK (GREENBERG 
James M. Nasri, III 
MiceEAEL DAviDson 
NorMmaN J. CHACHKIN 

10 Columbus Circle 
New York, New York 10019 

J. LEVonNE CHAMBERS 
ApaM STEIN 
CEAMBERS, STEIN, FERGUSON & LANNING 

216 West Tenth Street 
Charlotte, North Carolina 28202 

C. O. PearsoxN 
20314 Fast Chapel Hill Street 
Durham, North Carolina 27702 

ANTHONY G. AMSTERDAM 
Stanford University Law School 
Stanford, California 94305 

VERNON Z. CRAWFORD 

ArcerNoN J. CooPER 

1407 Davis Avenue 
Mobile, Alabama 36603 

Attorneys for Petitioners and 
Cross-Respondents 

 



Ix THE 

Supreme Comet of the United States 
OctoBeEr TERM, 1970 

  

James EB. Swann, ef al., 

Petitioners, Cross-Respondents, 

V. 

CHARLOTTE-MECKLENBURG Boarp or EpucaTioN, ef al. 

Respondents, Cross-Petitioners. 
  

Birpie MAE Davis, et al., 

Petitioners, 

V. 

Boarp or Scmoon Commissioners oF MosiLe County, et al. 
  

ON PETITIONS FOR WRITS OF CERTIORARI TO THE UNITED STATES 

COURTS OF APPEALS FOR THE FOURTH AND FIFTH CIRCUITS 

  

PETITIONERS’ REPLY TO 

BRIEF OF THE UNITED STATES 

Several arguments advanced by the United States in its 

brief amicus curiae occasioned this reply. 

(1) At p. 17, the Government attributes to petitioners 

the position that the Constitution requires “the ratio of 

white to black students in each school [to be] ... as near 

as possible to the ratio of white to black students in the 

system as a whole.” This is not petitioners’ position. 

Nothing in petitioners’ briefs suggests this position, which  



  

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the Government elsewhere characterizes as “racial balance” 

(pp. 16, 18-21, 23). 

Petitioners’ plan for the desegregation of the Mobile 

public school system in No. 436 does not depend upon a 

theory of “racial balance.” ' Nor does Judge MecMillan’s 
plan for the desegregation of the Charlotte-Mecklenburg 

public school system in Nos. 281 and 349 depend upon a 

theory of “racial balance.” ? “Racial balance” is a whipping- 

boy that respondents and the Government find it convenient 

to belabor. But it has nothing to do with petitioners’ con- 

tentions respecting the requirements of the Constitution. 

(2) Petitioners’ contentions do not depend upon “ratios.” 
They would permit 50-50 schools to exist, for example, in a 

70-30 school district where residential stability and other 

characteristics of the school population did not threaten 

resegregation, and the history of the school board per- 

1 See Brief for Petitioners in No. 436, pp. 63-79. 

2 See the Government’s quotation from Judge McMillan’s opinion 
at p. 21. After the Charlotte-Mecklenburg school board had con- 
sistently failed to produce an acceptable desegregation plan, Judge 
McMillan was compelled to appoint an expert to devise a plan. 
He was thereby obviously required to instruct the expert concern- 
ing the ideal objectives of the plan—something that would not 
have been necessary if the board had developed anything approxi- 
mating a satisfactory plan of its own. In this context only, Judge 
McMillan resorted to ideals defined by ratios—but with the clear 
recognition that substantial deviations from the ratios would be 
permitted where other practical and educational considerations 
called for them. And the ultimate plan approved by Judge Mec- 
Millan does not in fact involve racial ratios in each school that 
reflect those of the district as a whole. 

Judge McMillan expressly noted that his decision does not rest 
on a conclusion that “racial balances” are constitutionally required. 
He said: 

“This court has not ruled, and does not rule, that ‘racial bal- 
ance’ is required under the Constitution; nor that all black 
schools in all cities are unlawful; nor that all school boards 
must bus children or violate the Constitution; nor that the 
particular order entered in this case would be correct in other 
circumstances mot before the court” (emphasis in original) 
(Brief Appendix, p. 12). 

   



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formance did not require more exacting demands to guard 

against evasions. What petitioners do urge is simply that 

this Court should announce principles for the ultimate 

form of school desegregation plans which meet two re- 

quirements: 

Furst, they fulfill the promise and the constitutional hold- 

ing of Brown v. Board of Education, 347 U.S. 483 (1954), 

that no black child is to be assigned to a racially identi- 

fiable “black” school such as the all-black and virtually all- 

black schools which the Fifth Circuit has permitted to exist 

in Mobile and which the HEW plan would permit to exist 

in Charlotte-Mecklenburg. 

Second, they announce this first requirement in terms 

that are sufficiently clear, unmistakable, and decisive so 

that the Court’s opinion in these cases will not spawn 16 

more years of litigation like the 16 years of litigation that 

followed Brown. 

(3) The Government’s position fails to meet either re- 

quirement. The Government urges that: 

An appropriate standard should give proper attention 

to a number of circumstances, such as the size of the 

school district, the number of schools, the relative 

distances between schools, the ease or hardships for 

the school children involved, the educational sound- 

ness of the assignment plan, and the resources of the 

school district. (P. 8) 

If 16 years of litigation under Brown have demonstrated 

anything, it is that the enunciation of this “standard” by 

this Court in this year 1970 would be an unmitigated 

disaster. Under this standard, southern desegregation will 

remain an unresolved issue, and litigation of how many 

black children can be penned in all-black schools will still 

be going on, in 1986.  



  

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(4) The only justification that the Government offers 

for this unserviceable standard is the notion of deference 

to “the traditional neighborhood method of school assign- 

ment” (p. 9; see p. 24). But we are talking about desegre- 

gating schools that have never had a “traditional neigh- 

borhood method of school assignment.” Time out of mind 

prior to Brown, both Mobile and Charlotte-Mecklenburg 

had school assignment systems that took black children 

out of their “neighborhoods” to black schools and white 

children out of their “neighborhoods” to white schools. 

After Brown, both used plans that were not “neighborhood” 

plans.? Recently, both developed “neighborhood school” 

schemes whose design and effect were to perpetuate segre- 

gation. If the neighborhood school system had any other 

“benefits” (p. 9), they had escaped local notice altogether 

during many years, and now continued to be subordinated 

to the interests of segregation for schools were located, 

their capacities designed, their grades structured, their 

zone lines drawn, and their “neighborhoods” thus shaped 

to achieve continued segregation of the races. 

The Government admits that all of this is so as to Mobile 

and Charlotte-Mecklenburg (pp. 12-16), but seem to suggest 

that Mobile and Charlotte-Mecklenburg are aberrations. 

They are not aberrations. If one is to go outside these 

records, one will find that no school district which practiced 

the sort of racial discrimination condemned in Brown had 

a “traditional neighborhood” school system. They all sent 

blacks to black schools and whites to white schools without 

regard to “neighborhoods” or geographic proximity. These 

are the school systems that are at issue here. 

But we do not think that the Court should go outside 

the record. If there are school districts which have truly 

3 Indeed, in No. 436, the Mobile School Board adamantly re- 
sisted the principle of neighborhood schools. See petitioners’ brief 
in No. 436, p. 29, n. 26. 

   



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had “traditional neighborhood” school systems, they lie 

beyond the scope of this Court’s post-Brown experience 

and doubtless differ in so many ways from Mobile and 

Charlotte-Mecklenburg that nothing the Court decides 

herein could affect them. To reason from the supposed 

nature and “benefits” of those systems without a record 

adequately describing them would be perilous enough even 

if such systems were in question. But the only systems 

in question here are those that have traditionally subordi- 

nated or shaped neighborhoods to race; and, as to them, 

the Government’s “traditional neighborhood” school prin- 

ciple is manifestly hollow. 

(5) The Government’s reasoning from the “neighbor- 

hood” school premise is as faulty as the premise. We 

understand it to say that because various devices have been 

used by southern school boards to make the “neighborhood” 

school principle a serviceable tool of segregation—i.e., 

school location, school size manipulations, grade structure 

manipulation, zone line manipulation (pp. 12-16)—these 

same devices, but only these, may be used as “the focal 

point of a proper remedy . . . to disestablish the dual 

system and eliminate its vestiges (p. 16; see p. 25). Two 

things are wrong with this argument as a basis for con- 

cluding that “a system of pupil assignment on the basis 

of contiguous geographic (residence) zones . . . is consti- 

tutionally acceptable in desegregating urban school sys- 

tems” (p. 24). 

First, southern school boards—and these school boards— 

have used not merely manipulative practices within con- 

tiguous zones but also non-contiguous zones and busing 

to achieve segregation. If the measure of desegregation 

devices is to be determined by those devices previously 

used to segregate, then non-contiguous zones and busing 

are included. 

 



  

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Second, there is no doctrinal, logical or practical reason 

why the roster of desegregation devices should be mea- 

sured by that of segregation devices. So far as we are 

aware, it has never been supposed that the remedial means 

of a court of equity were those used by a malefactor in 

creating the situation that requires remedying. 

(6) It is not only, however, the Government’s reasoning 

that troubles us, but the consequences to which it inevitably 

leads: 

First, as we have said in paragraph (3), supra, the 

Government’s vague and elastic “standards to be applied 

in fashioning remedies for state-imposed segregation” 

(p. 8) will unquestionably produce another desolating, 

wasteful and protracted era of school desegregation 

litigation. We had hoped that this Court’s decision in 

Alexander v. Holmes County Board of Education, 396 U.S. 

19 (1969); and Carter v. West Feliciana Parish School 

Board, 396 U.S. 290 (1970), were meant to end that sort of 

thing. 

Second, standards of this sort cannot be fairly and uni- 

formly administered. In practice, they boil down to the 

disposition of the school board, or local district judge, or 

the sitting panel of the court of appeals. Experience in 

the Fifth Circuit in the past year demonstrates the effect 

of standards such as the Government proposes. The Gov- 

ernment’s description of the Fifth Circuit jurisprudence 

at pp. 19-20, 25-26, suggests a sort of consistency that the 

cases entirely lack. In the Fifth Circuit, as we have shown 

in petitioners’ brief in No. 436, the degree of desegregation 

ordered varies from panel to panel. 

Third, in the last analysis, as the Government admits on 

p- 26, its “standards” amount to nothing more than a 

promise of judicial review of the “good faith” of school 

officials. Sixteen years of school desegregation litigation 

   



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since Brown teach the delusiveness, the utter futility of 

any such approach to desegregation. 

(7) This Court should order that the schools be desegre- 

gated by declaring that each black child in Mobile and 

Charlotte-Mecklenburg must be assigned to a school which 

is not a racially identified “black” school. See para. (2), 

supra. Judge McMillan’s order on Nos. 281 and 349 should 

be approved as a practicable plan found effective to achieve 

this result in Charlotte-Mecklenburg; and the judgment of 

the Court of Appeals for the Fifth Circuit in No. 436 

should be reversed. 

Respectfully submitted, 

JACK GREENBERG 
James M. Nasri, III 
MicuEAEL DAvipsoxN 

Norman J. CHACHKIN 
10 Columbus Circle 
New York, New York 10019 

J. LEVonNE CHAMBERS 
Apam STEIN 

CrAMBERS, STEIN, FERGUSON & LANNING 
216 West Tenth Street 
Charlotte, North Carolina 28202 

C. O. Pearson 
203%, East Chapel Hill Street 
Durham, North Carolina 27702 

ANTHONY G. AMSTERDAM 
Stanford University Law School 
Stanford, California 94305 

VERNON Z. CRAWFORD 
Avrcer~NoN J. Cooper 

1407 Davis Avenue 

Mobile, Alabama 36603 

Attorneys for Petitioners and 
Cross-Respondents [||58692fed-c4aa-4d58-a100-02969dc21b93||]