Motion for Leave to File and Brief Amici Curae for the United Negro College Fund, Inc. et al.

     [||31f0f371-1364-465e-b9be-8b3d307ac747||] IN THE 

Supreme Court of the United States 
OcToBER TERM, 1969 

No. 1713 

JAMES K. SWANN, et al., Petitioners 

V. 

CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, ET ALL, 

Respondents 

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE 

in Support of the Motion to Advance and the Petition for Writ 

of Certiorari to the United States Court of Appeals for the 
Fourth Circuit 

and 
BRIEF AMICI CURIAE 

for the United Negro College Fund, Inc.. the National Urban 

Coalition, the League of Women Voters of the United States, 

the League of Women Voters of the State of North Carolina, 
the League of Women Voters of Charlotte-Mecklenburg, North 
Carolina, the Mississippi Educational Resources Center, the 
Harvard Center for Law and Education and the Washington 

Research Project of the Southern Center for Studies in 
Public Policy. 

WiLLiAM L. TAYLOR 
1325 Iris Street, N.W. 
Washington, D. C. 20012 

JosepH L. RAUH, JR. MARIAN WRIGHT EDELMAN 
1001 Connecticut Ave., N.-W. RuBY G. MARTIN 
Washington, D. C. 20036 RicaARD T. SEYMOUR 

RicHARD B. SoBOL 
PETER LIBASSI i MicHAEL B. TRISTER 

National Urban Coalition Washington Research Project 
2100 M Street, N.W. 1823 Jefferson Place, N.W. 
Washington, D. C. Washington, D. C. 20036 

Of Counsel Attorneys for Amici Curiae 

  

  

PRESS OF BYRON S. ApAMS PRINTING, INC., WASHINGTON, D. C.  



TABLE OF CONTENTS 

Page 

Motiox For Leave To Fire Brier Amici Curiae iN Sup- 
PORT OF THE MoTioN To ADVANCE AND THE PETITION 
FOR WRIT OF CERTIORARI TO THE UNITED STATES 
Court or APPEALS FOR THE FourTH CIRCUIT 

11. Summary of Argument 

IIT. Argument 

A. This case must be expedited to prevent ir- 
reparable harm to petitioners and to thou- 
sands of black children in other school dis- 

. The refusal of the court below to sustain a 
district court decision eliminating segregated 
schools denied petitioners their constitutional 

. The harm suffered by black children in segre- 
gated schools cannot be vitiated by steps short 
of integration 

IV. Conclusion 

TABLE OF AUTHORITIES 

CasEs: 

Aaron v. Cooper, 358 U.S. 27 (1958) 
Alexander v. Holmes County Board of Education, 396 

U.8, 19 (1969) 3,915, 20 
Beckett v. School Board of Norfolk, 308 F. Supp. 1274 

(IE.D. Va. 1969) 
Brown v. Board of Education, 347 U.S. 483 (1954) 

2,3,812,16  



  

11 Contents Continued 

Page 

Brown v. Board of Education, 349 U.S. 294 (1955) .... 15 
Carter v. West Feliciana Parish School Board, 396 

LS. 200 (1070)... ...... cor csinnnsssnints 3, 414,15 
Coopery. Aaron, 33.8. 1 (1958) ......0.00unvien ens 10 
Green v. County School Board of New Kent County, 

Va. 391 10.8. 430 (1968) ............ 9, 10,11 12, 14 
Griffin v. County School Board of Prince Edward 

County, 377 0.8, 218 (1964)... ...........:..... 11 
Hannah v, Larche, 361 U.S. 910 (1959), 363 U.S. 

490 (1960) ... i... cents anr nts n rns 4 
Katzenbach v. McClung, 379 U.S. 294 (1964) ........ 4 
Lurk v. United States, 365 U.S. 832 (1961), 366 U.S. 

Z12 (1961) iru iris vais viiions vaio su NH 4 4 
Northeross v. Board of Education of Memphis, Tenn., 

337. US 222 9 1. Bd. 24 246 (1970) .......... 15 
Power Authority v. Tuscarora Indian Nation, 360 U.S. 

915 (1959), 361 U.S. 892 (1959), 362 U.S. 99 (1960) 4 
Shelley v, Kraemer, 334 US. 1, (1948) ....0.0u.iuuss 8 
United States v. Montgomery County Board of Educa- 

tion, 390 US. 925 (1969) ..........c...c00: 9, 14, 15 
United Steel Workers v. United States, 361 U.S. 878 

(1089) 0 ut ain dl si Te tare ss 4 
Williamg v. Rhodes, 333 U.S. 23 ............ ........ 4 

OTHER AUTHORITIES : 

New York State Department of Education, Racial and 
Social Class Isolation in the Schools, a Report to 
the Board of Regents of the University of the 
Siate of New York (1969) ................v... 18 

Office of Education, United States Department of 
Health, Education and Welfare, Equality of Kdu- 
cational! Opportunity (1966) .......0ov0e.v..-- 19 

United States Commission on (Civil Rights, Racial 
Isolation in the Public Schools (1967) ....... 17,18,19 

Austin, Texas School District, H.E.W. Docket No. CR 
LTE BUR en ean es I GR ant JR 7 

Newport News, Virginia School District, H.E..W. Docket 
No. CR 080: 20: sii isnesterinss isd 6 

Raleigh, North Carolina School District, H.F..W. Docket 
de ae SO 6 

Richland School District, Columbia, South Carolina, 
HEW. Docket No. CR 589 .........c........... 5 

   



IN THE 

Supreme Court of the United States 
OctoBER TERM, 1969 

No. 1713 

JAMES BE. SWANN, et al., Petitioners 

V. 

CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, ET AL., 

Respondents 

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE IN 
SUPPORT OF THE MOTION TO ADVANCE AND THE 
PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR 

THE FOURTH CIRCUIT 

The following organizations—the United Negro Col- 

lege Fund, Inc., the National Urban Coalition, the 

League of Women Voters of the United States, the 

League of Women Voters of the State of North 

 



  

2 

Carolina, and the League of Women Voters of Char- 
lotte-Mecklenburg, North Carolina, the Mississippi Ed- 

ucational Resources Center, the Harvard Center for 

Law and Kduecation, and the Washington Research 

Project of the Southern Center for Studies in Public 

Policy—hereby move pursuant to Rule 42(3) of the 

Rules of this Court, for leave to file the attached brief 

amict curvae in the above-entitled cause. Petitioners 

have consented to the filing.! Consent has not been 
granted by the respondents. 

The United Negro College Fund, Inec., is an organi- 

zation consisting of 34 member colleges, all but one of 

them in the South, which was established in 1943 to 
raise funds and provide other assistance to member 

colleges. The Fund and its members have an important 

and direct interest in assuring that elementary and 

secondary school students are well prepared for college 

and thus have a continuing concern about the persist- 

ence of segregated public schools. 

The National Urban Coalition is an organization 

whose purpose is to improve opportunities and con- 

ditions of life for citizens living in urban areas of the 

nation. Founded in 1967, it has 47 affiliated local coali- 

tions and representation from corporations, unions, 

religious, and civil rights organizations. The improve- 

ment of educational opportunity is among its prime 

purposes and to that end it has sponsored educational 

research and participated as amicus curiae in a case 

involving the equal distribution of educational re- 

sources. 

  

1 The written consent of the petitioners has been filed with the 

Clerk. 

   



3 

The League of Women Voters of the United States, 

the League of Women Voters of North Carolina, and 

the League of Women Voters of Charlotte-Mecklen- 

burg, North Carolina, are three organizations with com- 

mon aims and principles but with independent de- 

cision-making powers. Founded in 1920, the national 

League now has 156,000 members in all 50 states, the 

District of Columbia, Puerto Rico, and the Virgin Is- 

lands. As part of its overall program of encouraging 

informed and active participation of citizens in govern- 

ment, the national League has placed major emphasis 

upon the quality of public education and in 1970 re- 

affirmed its pledge to support efforts to end racial dis- 

crimination in education. The North Carolina and 

Charlotte-Mecklenburg Leagues have conducted studies 

of the quality of educational opportunity in their re- 

spective areas. Like the national League, they are 

committed to work for equality of opportunity in edu- 

cation. 

The Mississippi Educational Resources Center is a 
private organization established in 1969 to represent 
professional, parent, and community groups throughout 

the State of Mississippi. Its membership is predomi- 

nantly black. Its purpose is to assist communities and 

school districts in overcoming problems incident to the 

school desegregation process and to assure that desegre- 

gation takes place and in an orderly and positive man- 

ner. 

The Harvard Center for Law and Education is an 
educational institution established in 1969 by Harvard 

University and the United States Office of Kconomie 

Opportunity to ‘promote reform in American educa- 

tion by working in the area of social policy and law.” 

To carry out its aims, the Center has sponsored and 

 



  

4 

conducted research on various aspects of the educa- 

tional process. It has also served as amicus curiae in 

several cases involving issues within the area of its 

expertise. 

The Washington Research Project, established in 

1968, is a research organization located in Washington, 

D. C., and affiliated with the Southern Center for 

Studies in Public Policy of Clark College in Atlanta, 

Georgia. The principal aim of the project is to as- 

sist in the establishment of equality of opportunity for 
all citizens through negotiation and monitoring of ad- 

ministrative agency programs and litigation. It is 

deeply concerned with educational issues, particularly 

with alleviating the continuing effects of racial dis- 

crimination in public schools. It has conducted a study 

of the impact of Federal aid to education programs on 

minority children and maintains a continuing effort to 
monitor such programs to ensure that they are con- 

ducted without diserimination. 

Each of the movant organizations consists of black 

and white citizens. While their activities vary, all are 

bound together by a common commitment to strengthen 

public education in this country and to work for an 

end to racial segregation in the schools. All of the 

movant organizations, moreover, share a common com- 

mitment to the maintenance of the Rule of Law in this 

nation. They believe that the Rule of Law is threatened 

by continuing violations of the rights of Negro school 

children declared by this Court in 1954. 

Movant organizations seek leave to enter this case 
for the purpose of supporting fully the position of the 

petitioners. Movants believe, however, that—by virtue 

of their breadth, their special interest in education and 

   



9) 

the scope of their activities in conducting and sponsor- 

ing research on issues of education and civil rights and 

in evaluating the progress of school desegregation un- 

der Federal civil rights laws—they are well equipped 

to inform the Court with respect to issues which may 

not otherwise be fully explored by the parties. Speci- 

fically, movant organizations believe that they can pro- 

vide information as to the impact that the decision 

of the court below may have upon the process of school 

desegregation throughout the nation and as to the edu- 

cational impact upon children of the various forms of 
relief that are in issue in this case. 

Accordingly, movant organizations respectfully re- 

quest that the Court grant leave to file the attached 

brief amici curiae and that the Court consider their 

brief together with the petition for writ of certiorari, 
the petitioners’ motion to advance, and with other 

papers in the case. 

Respectfully submitted, 

WiLriaM L. TAYLOR 
1325 Iris Street, N.W. 
Washington, D. C. 20012 

JosepH L. RAuH, JR. MariIAN WRIGHT EDELMAN 
1001 Connecticut Ave., N.W. RUBY G. MARTIN 
Washington, D. C. 20036 RicEARD T. SEYMOUR 

RiceEARD B. SoBOL 
PETER LIBASSI : MicHAEL B. TRISTER 

National Urban Coalition Washington Research Project 
2100 M Street, N.W. 1823 Jefferson Place, N.W. 
Washington, D. C. Washington, D. C. 20036 

Of Counsel Attorneys for Amici Curiae 

Dated: June 23, 1970  



IN THE 

Supreme Court of the United States 
OcroBER TERM, 1969 

No. 1713 

JAMES HE. SWANN, et al., Petitioners 

V. 

CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, ET AL., 
Respondents 

BRIEF AMICI CURIAE 

for the United Negro College Fund, Inc., the National Urban 

Coalition, the League of Women Voters of the United States, 
the League of Women Voters of the Siate of North Carolina, 
the League of Women Voters of Charlotte-Mecklenburg, North 

Carolina, the Mississippi Educational Resources Center, the 
Harvard Center for Law and Education and the Washington 

Research Project of the Southern Center for Studies in 

Public Policy. 

I. 

INTEREST OF AMICI 

Amici, as is more fully set forth in the Motion for 

Leave to File a Brief Amici, are all organizations with 

a deep interest in maintaining and improving the 

quality of education available to children of all  



  

2 

races. As a part of this interest, they have all com- 
mitted themselves to work for the elimination of racial 

segregation and other forms of discrimination in educa- 
tion. 

Several amici have conducted or sponsored research 

on problems of establishing equal educational oppor- 

tunity. Others have supported and appeared in liti- 

gation involving the public schools and discrimination. 

Still others have undertaken to work for the full and 
fair enforcement of civil rights laws by Executive de- 

partments and agencies of the Federal Government. 

All have a commitment to the maintenance of the 

Rule of Law and a deep concern about the continuing 
denial of constitutional rights of black school children. 

IL. 

SUMMARY OF ARGUMENT 

This is a case of crucial importance. Only a prompt 

hearing and disposition of the case can prevent harm 

from being done to thousands of black students in many 
areas of the nation. Unless such action is taken, when 

schools open in the fall these students will be assigned 

to segregated schools pursuant to the erroneous decision 

of the court below. 

The refusal of the court below to sustain a workable 

plan for desegregating the schools of Charlotte-Meck- 

lenburg denied the constitutional rights of petitioners. 

The ruling conflicts with the decision of this Court in 

Brown v. Board of Education and other cases. In hold- 

ing that a school board must do only what is ‘‘reason- 

able’’ rather than what is necessary to desegregate the 

schools, the court below created a new loophole, one 

which would allow the rights of many black children 

   



3 

to be indefinitely deferred or denied completely. Even 
if a ‘‘reasonableness’ test were permissible, the dis- 

trict court plan was by any standard ‘‘reasonable.”’ 

It promised to remedy the harm now being inflicted 

on black children in segregated schools without causing 

harm to any child in the Charlotte-Mecklenburg school 

system. The alternatives to desegregation suggested by 

the court below would allow harm to continue to be 
inflicted on petitioners. 

III. 

ARGUMENT 

A. This case must be expedited to prevent irreparable harm to 
petitioners and to thousands of black children in other 
school districts. 

The holding of the court below violates the rights of 

petitioners and requires the earliest reversal in order 

to prevent the assignment of thousands of black chil- 

dren this fall to segregated schools in violation of the 
Fourteenth Amendment. Expedited action by this 

Court is essential to avoid massive confusion and incon- 

sistency among desegregating districts and among 

various agencies enforcing school desegregation as to 

standards permissible under the Fourteenth Amend- 

ment. 

Three times since Brown v. Board of Education, 347 

U.S. 483, this Court advanced hearings or otherwise 
accelerated disposition of school desegregation cases 

to prevent circumvention or delay in vindicating the 
constitutional rights of black school children. Aaron 

v. Cooper, 358 U.S. 27; Alexander v. Holmes County 
Board of Education, 396 U.S. 19; Carter v. W. Felici-  



  

4 

ana Parish Scnool Board, 396 U.S. 290." Amici sub- 

mit that the instant case is of equal importance and 

warrants the earliest possible decision to avoid still 

further delay of a desegregated education to black 
school children denied rights over sixteen years. 

The ‘‘reasonable means’’ test promulgated by the 

court below permits school boards to continue to assign 

black children to all-black, or virtually all-black, schools 

even where it is undisputed that such segregation re- 

sulted from official public action. Such a test portends 

grave consequences for school desegregation this fall 

and hereafter. We agree with Judge Sobeloff that: 

“Handed a new litigable issue—the so-called rea- 
sonableness of a proposed plan—school boards can 
be expected to exploit it to the hilt. The concept 
is highly susceptible to delaying tactics in the 
courts. Everyone can advance a different opinion 
of what is reasonable. Thus, rarely would it be 
possible to make expeditious disposition of a 
board’s claim that its segregated system is not 
‘reasonably’ eradicable.”’” (Plaintiffs’ App., at p. 
2121) 

That this new rule of reasonableness is nothing more 
than a ‘‘new loophole” and ‘‘catapults us back’ to a 

time when ‘good-faith’ rather than concrete desegre- 

gation was considered the appropriate test of compli- 

  

1 In Aaron v. Cooper, supra, it was necessary for the Court to 
convene a Special Term during the summer recess to hear and de- 

cide the case. Other cases in which hearings have been advanced 
under Rule 43 (4) include United Steel Workers v. United States, 
361 U.S. 878; Hannah v. Larche, 361 U.S. 910, 363 U.S. 420; 
Power Authority v. Tuscarora Indian Nation, 360 U.S. 915, 361 
U.S. 892, 362 U.S. 99; Lurk v. United States, 365 U.S. 832, 366 
U.S. 712; Katzenbach v. McClung, 379 U.S. 294; Williams Vv. 

Rhodes, 393 U.S. 23. 

   



5) 

ance seems clear (p. 213a). And to permit this de- 
cision to stand will undercut the slow progress al- 

ready made, will result in further litigation and con- 
fusion, and will delay still more the endlessly delayed 

rights of thousands of black children to a desegregated 
education now. We can think of little that is ‘‘rea- 

sonable’ in denying or delaying complete desegrega- 

tion after sixteen years. 

Hundreds of school desegregation cases are now 

pending in various stages of negotiation and enforce- 
ment proceedings at the Department of Health, Educa- 

tion and Welfare (hereinafter HEW) and in the 
courts”? The United States, which urged a position 

similar to that adopted by the court below, can be ex- 

pected to urge similar positions in its administrative 
proceedings and has already begun to do so. 

Several of these pending administrative cases illus- 

trate the importance of early consideration and reversal 

by this Court. In Richland School District, Columbia, 
South Carolina,” HEW considered desegregation plans 

  

2 As of May 28, 1970, 205 school districts were involved in HEW 

compliance proceedings, 61 of which had undergone fund cutoffs 
for noncompliance. [These were all cases exclusive of those pending 
in the courts.] Forty-two involved districts which had received 
a notice of intention to initiate formal enforcement procedures; 
hearings had been conducted in 37 cases; in 12 a decision of non- 
compliance had been rendered following a hearing or default pro- 
ceeding; 32 districts had an appeal pending before a reviewing 

authority; 19 districts had been found not to be in compliance by 
the reviewing authority ; one had a report of the final decision filed 

with Congressional committees (61 had completed Title VI appeal 
procedures and had had their funds terminated in previous years). 

In addition to these 205 cases, at least 80 others were in pre-enforce- 

ment negotiations. 

3 HEW Docket No. CR 589. 

 



  

6 

for a district of 40,122 pupils, 53.3 percent of them 

white and 46.7 percent black. The Reviewing Authority 

decision of February 25, 1970, reversed a determination 

of the hearing examiner approving the plan filed by 

the school board, pointing out that there were avail- 
able alternatives that were more effective. On June 

9, 1970, after the decision by the court below, the Di- 

rector of HEW’s Office for Civil Rights reversed the 

Reviewing Authority and reinstated the school board’s 

plan, which permitted 15 of the 43 elementary schools 

to remain more than 80 percent black and 11 schools 

to remain more than 80 percent white. While these 

segregated schools could have been eliminated by some 
busing, the approved school board plan excluded busing 

except in a few cases to relieve overcrowding. 

There is grave danger of similar results being 
reached in other cases. A Title IV plan was submitted 
March 24, 1969, in Newport News, Virginia,* for a 
district of 31,138 students, 64 percent white and 36 

percent black. The plan, involving pairing of schools, 

would have reduced the proportion of black students 

at two virtually all-black high schools and two virtually 
all-black junior high schools to 50 percent at each high 

school and 48 percent and 55 percent at the two junior 

high schools. The school board objected that the plan 

required ‘involuntary’ busing and was therefore ‘‘un- 

reasonable.”” The case is now pending before the 
HEW Reviewing Authority where, as matters now 

stand, it is likely to be decided under the broad ‘‘rea- 

sonableness’’ standard in the instant case. 

In Raleigh, North Carolina,’ a recent decision of the 

  

+ HEW Docket No. CR 669. 

5 HEW Docket No. CR 612. 

   



7 

Reviewing Authority refused to accept a plan which 
provided no busing and under which only 22 percent of 
the black students attended integrated schools. This 
decision is now subject to challenge on grounds that 
alternative plans involving busing would be ‘‘unrea- 
sonable.” The Austin, Texas ® school district serves 
52,724 students, 65 percent white, 19 percent Mexican- 
American, and 16 percent black. Of the 70 schools in 
operation, 9 are more than 94 percent black. HEW’s 
Title IV plan permits four elementary schools to con- 
tinue a combined black and Mexican-American popula- 
tion of more than 94 percent. The government’s brief 
in the HEW proceeding, at p. 8, stated that “the 
[Title IV] team operated under guidelines which pre- 
vented them from making any recommendations which 
would require busing across town in order to desegre- 
gate the Negro schools.”” This case is now pending be- 
fore a hearing examiner and in present circumstances 
may well be influenced by the decision in Charlotte- 
Mecklenburg. 

The decision of the court below is also likely to in- 

fluence pending judicial proceedings. In Beckett v. 
School Board of Norfolk, 308 F. Supp. 1274 (E.D. Va. 
1969) an appeal has been taken from a decision per- 
mitting the continuation of a substantial number of 

all-black schools. In oral argument before the Fourth 

Circuit sitting en banc on June 5, 1970, attorneys for 

the United States stated that in light of the ‘“‘reason- 

able means’ test in Charlotte-Mecklenburg, the govern- 

ment would no longer insist on the plan for desegre- 

gation it had previously urged. 

While amici do not wish to prejudge the outcome 
of these cases, we cannot ignore the already clear im- 
  

¢ HEW Docket No. CR 902.  



  

8 

pact of Charlotte-Mecklenburg on these other pending 
cases, and on the rights of black children in those dis- 

tricts. 

If, as we believe, the ‘‘reasonable means’ standard is 

unconstitutional, this will mean that as long as the de- 

cision stands unreversed, plans will be approved that 

unconstitutionally assign many thousands of black chil- 

dren to segregated schools. And if such plans are put 

into effect in the fall it will undoubtedly require all 

or the greater part of the school year 1970-1971 or 

longer to undo the harm done. 

B. The refusal of the court below to sustain a district court 

decision eliminating segregated schools denied petitioners 

their constitutional righis. 

1. The decision of the court below that school boards 

may lawfully continue to operate de jure segregated 

schools indefinitely conflicts with previous decisions of 

this Court. 

This is not a case of de facto segregation. This 1s a 

case of segregated public schools continuing sixteen 

years after Brown, supra, directly as a result of dis- 

criminatory governmental action.” This is a case where 

it is possible to completely disestablish segregated 

  

7 The district court found that segregation in the public schools 

resulted from policies of the respondent school board and other 

governmental officials who helped establish patterns of residential 

segregation. The policies of school officials included the selection 

of school sites in a manner which perpetuated racial segregation. 

Actions of other government officials included judicial enforcement 

of racially restrictive covenants until ruled unconstitutional in 

Shelley v. Kraemer, 334 U.S. 1, discriminatory implementation of 

zoning ordinances in white and black residential areas, and dis- 

criminatory relocation of citizens through urban renewal programs. 

(pp. 13a-14a, 86a-87a) 

   



9 

schools and provide every school child a desegregated 

education.” 

Despite these clear facts and the circuit court’s ex- 

plicit adoption of the findings of the district court of 

these facts, it nevertheless concludes ‘‘that not every 

school in a unitary system need be integrated’ (p. 

189a). This is in patent error and violates standards 
for school desegregation established by this Court in 

Green v. County School Board of New Kent County, 
Va., 391 U.S. 430, 437-38 (1968), where this Court un- 
animously declared that school boards were ‘‘clearly 

charged with the affirmative duty to take whatever 

steps may be necessary to convert to a unitary system 

in which racial discrimination would be eliminated root 

and branch’ (emphasis added). See also United 
States v. Montgomery County Board of Education, 395 

U.S. 225, 230 (1969). Both cases expressed a concern 
that no schools be racially identifiable.’ 

The holding of the court below cannot be squared 

with these decisions. 
  

8 The opinion of the court below indicates that the plan prepared 

by Dr. Finger, an expert appointed by the district court, and which 

was adopted by the district court would eliminate all segregated 

schools. Judge Sobeloff found that: 

““The plan ordered by the district court works. It does the 
job of desegregating the schools completely . . . The point has 
been perceived by the counsel for the Board, who have can- 
didly informed us that if the job must be done then the Finger 
plan is the way to do it.”’ (p. 204a) 

9 And in Alexander v. Holmes County Board of Education, 396 

U.S. 19 (1969), this Court stated bluntly: 

“Under explicit holdings of this Court the obligation of every 
school district is to terminate dual school systems at once and 
to operate now and hereafter only unitary schools’’ (emphasis 
added).  



  

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10 

2. The constitutional rights of petitioners cannot 

be conditioned upon a ‘‘reasonable means test.” 

We can conceive of little, if anything, that is ‘‘rea- 

sonable,” which after sixteen years denies or further 

delays the Fourteenth Amendment rights of black 

school children. Nor can we square the rights of each 
individual black child to a desegregated education with 

a result that leaves some of them—be it 100 or 10,000— 

in segregated black schools under a guise of reason- 

ableness. As to them, is the Constitution not to apply? 

This ‘rule of reason’ contravenes the mandate in 

Green, supra, that imposes upon school boards the duty 

to take whatever steps are necessary to establish a uni- 

tary system eliminating racial discrimination “roof 

and branch,” 391 U.S. 430, 438 (emphasis added). 

There were no qualifications placed on this mandate. 

It is no excuse that ‘vindication of these rights was 
rendered difficult or impossible by actions of other 
state officials,”’ Cooper v. Aaron, 358 U.S. 1, 16. And, 
indeed, the discriminatory action of other government 

officials does not prevent the school board from ful- 

filling its duties under Green. 

We have had ¢‘all deliberate speed’’ and ‘‘good faith” 

for sixteen years. These doctrines have been used 

by school boards to evade, delay and deny black child- 

ren constitutional rights.’ To be faced in 1970 with a 
  

10 Indeed, this Court formally disapproved the standard of ‘‘all 

deliberate speed’’ in Alexander for precisely this reason. Cf. the 
opinion of Mr. Justice Black on application to vacate the 5th Cir- 

cuit’s order in Alexander, 90 S.Ct. 14 (1969) : 

“<All deliberate speed’ has turned out to be only a soft eu- 
phemism for delay.’’ 

Rarlier in his opinion, he stressed the danger of the vagueness in 

such a standard: 

   



1 

new and undefined doctrine of ‘‘reasonableness’ can 

only portend another decade of litigation, evasion, de- 

lay and denial of vital rights protected by the Consti- 

tution. This is impermissible where such important 
rights are at stake. 

The court below mistakes the duty of the school 

board and offers the board such broad discretion as to 

violate Fourteenth Amendment rights. In its only 

effort to supply a standard for the doctrine of reason- 

ableness, the court said: 

“The board should view busing for integration in 
the light that it views busing for other legitimate 
improvements, such as school consolidation and the 
location of new schools’ (p. 194a). 

This is clearly erroneous. The demands of the Con- 

stitution cannot be relegated to the same level as other 

educational improvements which, while desirable, are 

not constitutionally required. 

  

‘“Federal courts have ever since [Brown II] struggled with 
the phrase ‘all deliberate speed.” Unfortunately this struggle 
has not eliminated dual school systems, and I am of the opin- 
ion that so long as that phrase is a relevant factor they will 
never be eliminated.’’ 

Id. 

It is instructive that these opinions were written in 1969. As 
early as 1964, this Court had disapproved the phrase: 

“The time for mere ‘deliberate speed’ has run out, and that 
phrase can no longer justify denying these Prince Edward 
school children their constitutional rights to an education 
equal to that afforded by the public schools in the other parts 
of Virginia.’ 

Griffin v. County School Board of Prince Edward County, 377 U.S. 
218, 234 (1964). In 1968, this Court stated again, in Green, 391 
U. S. at 438, that ‘‘[t]he time for mere ‘deliberate speed’ has run 
out.”  



  

12 

3. Even if the Constitution permits a ‘‘reasonable 

means’’ test, the court below erred in rejecting as un- 

reasonable a sound desegregation plan approved by the 

district court and adopting a plan perpetuating seg- 

regated schools. 

This is not a case involving arbitrary and unreason- 

able action by a district court. This is not a case in- 

volving a hastily drafted or ineffective desegregation 

plan but one developed by the district court after much 
deliberation with the help of an expert in consultation 

with the school board. This is not a case of a school 

district unable to comply with the district court’s plan. 

Nowhere is this contended. This is a case where the 

school district has had every possible opportunity toe 

comply with Brown, supra, and Green, supra. This is 

a case where the school district took no action to deseg- 

regate between 1954 and 1965, took in adequate action 

in 1965 and then in 1969 and 1970 failed to submit an 

acceptable plan after ten months and four opportuni- 

ties to do so (fin. 9, p. 213a). This is a case of a 

school board seeking to do the minimum to comply 

when alternative and more effective means exist to 

fully and constitutionally comply with this Court’s 

mandates. 

We believe that the constitutional duty of a school 

board is not simply to use ‘reasonable means’ but to 

do whatever is necessary to convert a dual school sys- 

tem into a unitary one. But, assuming arguendo, that 

it was not inappropriate for the court below to employ 

such a standard, the judgment requires reversal be- 

cause (a) the plan approved by the district court did 

not exceed the bounds of ‘‘reasonableness” and (b) 

respondents did not meet the burden of proof required 

   



13 

of a school board that seeks to overturn an effective 

school desegregation plan. 

a. Under the school board’s plan, more than half of 
the black elementary school students in Charlotte- 

Mecklenburg would be assigned to schools 86 per cent 

to 100 per cent black and about half of the white 

elementary school students would be assigned to schools 

86 per cent to 100 per cent white. Under the district 

court’s plan, the racial composition of all elementary 

schools would range from 9 per cent to 38 per cent 

black (p. 191a). The court-approved plan required 

busing of 13,300 additional students, 8,000 more than 

under the school board’s plan (p. 191a). 

To conclude properly that the court-approved plan 

was ‘‘unreasonable’’ the court below would have to 

show more harm to black and white children as a 

result of busing than that suffered by black children 

who would otherwise remain in segregated schools. In 

fact, the court was not able to find that children would 

suffer any harm as a result of busing. 

Instead, the court below attempted to judge the ap- 

proved plan in light of factors which it did not relate to 

impact upon school children, e.g., the amount of bus- 

ing, its cost in relation to the board’s resources, the age 
of the pupils involved and distance and time (p. 194a). 

But here, ‘‘unreasonableness’ is not shown with re- 

spect to any of these factors. Judge Sobeloff concluded 
that ‘“‘distance and time will be comparatively short, 

the effect on traffic is undemonstrated, the incremental 

cost is marginal’’ (p. 210a)." 
  

11 The 13,300 additional children to be bused when added to the 

23,600 already bused would mean total busing of 47 per cent of the 
school population, far less than the 55 per cent average proportion  



  

14 

In sum, the record makes no showing that the busing 

under the district court’s plan is unreasonable in light 

of national, state, or local practices of busing or will 
harm pupils in any way. Nor does the record show 

undue burden to the school board in implementing the 

district court’s plan. 

b. In Green, this Court held that the availability of 

a plan that promises to be more effective than another 

plan ‘“places a heavy burden upon the board to explain 
its preference for an apparently less effective method.” 
391 U.S. at 439. And in Montgomery County, 395 U.S. 
225 (1969), and Carter v. W. Felictana Parish School 
Board, 396 U.S. 290 (1970), this Court reversed deci- 

sions by courts of appeals which had imposed desegre- 

gation requirements which were less stringent than 

  

of pupils now being bused to schools in North Carolina (p. 211a). 

The court below accepted the findings of the district court as to 
transportation costs which, as Judge Winter pointed out in his dis- 

sent, would amount to less than 1.2 per cent of the respondent 
board’s total budget when operating and capital costs are combined 
(p. 221a). In fact, the district court’s estimate of 138 buses re- 

quired under its plan was also adopted by the court below (pp. 
191a, 194a) and exceeded the school board’s estimate of 104. The 
average one-way trip for elementary students bused under the 

court-approved plan would be less than seven miles and 35 minutes 
(p. 207a), compared with an average one-way trip of 15 miles and 
one hour and fourteen minutes for students now being bused in 
Charlotte-Mecklenburg (p. 207a) and an average roundtrip of 24 

miles for all students now bused in North Carolina (p. 194a). 
The court below made no findings as to the age of children to be 

bused or as to the impact upon traffic but it appears from the ree- 
ord that substantial numbers of elementary school students are 

already being bused in Charlotte-Mecklenburg (pp. 210a-211a) and 
that the possibility that the court-approved plan would cause a 
problem of traffic congestion is negligible (pp. 206a-207a). 

   



15 

those in plans available.” And in Carter, Mr. Justice 
Harlan, in a concurring opinion joined by Mr. Justice 

White, stated that school districts must demonstrate 

“beyond question” the unworkability of an effect pro- 

posal, 396 U.S. 290, 292. In addition, while the court 

below properly limited its power of review to factual 

questions it found ‘‘clearly erroneous’ (p. 194a), it 

improperly rejected the district court’s determination 

as to the burden of compliance. In Brown 11,349 U.S. 

at 299, primary responsibility for implementing school 

desegregation decrees is placed in the district courts. 

And recently in Northeross v. Board of Education of 

Memphis, Tennessee, 397 U.S. 232, the court of appeals 

was held in error for substituting its findings for that 

of the distriet court as to whether a dual school sys- 

tem had been effectively dismantled when the district 

court’s findings were ‘‘supported by substantial evi- 

dence.’ 

Under the facts of this case and in light of the Dis- 

trict Judge’s careful findings supported by the record, 

and this Court’s previous decisions, the court below 

must be reversed. 

C. The harm suffered by black children in segregated schools 
cannot be vitiated by steps short of integration. 

The arguments preceding are sufficient to warrant 

the granting of the relief sought by petitioners. It is 

not necessary to argue the harm that will be suffered by 

the black children in the Charlotte-Mecklenburg school 

district who under the decision of the court below will 

  

12In Montgomery County, the more effective plan had, as here, 
been adopted by the district court. In Alexander and Carter, the 
U.S. Department of Health, Education and Welfare had prepared 
the plans.  



  

16 

continue to attend segregated schools. That issue was 

settled in Brown Vv. Board of Education, 347 U.S. 483, 
494 where this Court concluded: 

“To separate them [Negro children in grade and 
high school] from others of similar age and quali- 
fications solely because of their race generates a 
feeling of inferiority as to their status in the com- 
munity that may affect their hearts and minds in 
a way unlikely ever to be undone.’’ 

The court below did not dispute the applicability of 

this conclusion in Brown to the instant case, and in- 

deed in upholding the determination of the district 

court that the segregation was of a de jure character 

it implicitly acknowledged that the findings of Brown 

applied here. Nevertheless, the court strongly implied 

that the harm suffered by the black children in segre- 
gated schools could be vitiated by remedies other than 

total desegregation. Specifically, the court recom- 

mended that the defendants (1) employ ‘‘special 

classes, functions and programs on an integrated’ 

basis, and (2) ensure ‘‘that pupils who are assigned to 

black schools for a portion of their school careers’ are 

assigned to integrated schools as they progress to higher 

grades." 

There was, however, no evidence to support a con- 

clusion that either of these steps, whether taken singly 

or together, will prevent or undo the harm that black 

children suffer in segregated schools. In fact, avail- 
  

13 The only other alternative suggested by the court was a ma- 

jority to minority transfer plan which allowed free voluntary 

transfer of blacks ‘‘to any school in which their race is a minority 

if space is available.”” An identical provision had not worked be- 

fore in Charlotte-Mecklenburg, and there is no reason to believe it 

can now have any meaningful impact. 

   



17 

able research on this issue leads to a contrary conclu- 

sion—that black children will continue to suffer harm 

so long as they are assigned to segregated schools, even 

if they are permitted to participate in special inter- 

racial programs and even if part of their educational 
experience is in integrated schools. 

The fashioning of special programs, functions and 

classes conducted on an integrated basis for children 

who attend segregated schools is not a new technique. 
1t has been tried before, usually as an aspect of com- 

pensatory programs designed to improve the quality 

of education for disadvantaged children. Generally, 

the effort is made to broaden the horizons of poor 
children by giving them access to activities not 

ordinarily within their reach—activities such as short- 

term exchanges of teachers and students between 

schools and visits and field trips to concerts and 

museums. In its Report on Racial Isolation in the 

Public Schools in 1967, the United States Commission 

on Civil Rights examined the results of compensatory 

programs and concluded that: 

“Evaluations of programs of compensatory educa- 
tion conducted in schools that are isolated by race 
and social class suggest that these programs have 
not had lasting effects in improving the achieve- 
ment of the students. The evidence indicates that 
Negro children attending desegregated schools that 
do not have compensatory education programs per- 
form better than Negro children in racially iso- 
lated schools with such programs.’ * 

A more recent comprehensive report summarizing 

evaluations of compensatory programs, prepared by 

the New York State Kducation Department, reached 
  

14 Racial Isolation in the Public Schools (1967) at 205.  



  

18 

similar conclusions. It found that the programs 

“failed to show any real promise in reducing the in- 

tellectual and achievement deficits of disadvantaged 

children’’ and that in contrast comparative studies 

“showed integration to be superior.” ** Indeed, tem- 

porary or ad hoc arrangements to provide some inter- 
racial contact between students attending segregated 

schools may even have a counterproductive effect. The 

U.S. Civil Rights Commission Report noted: 

“Indeed, in one community the Commission was 
told that the contrasts afforded by inter-school 
trips between white and Negro students under 
compensatory programs heightened the sense of 
inferiority felt by the Negro students.” * 

The second alternative step put forward by the court 

below is the assurance that children who are assigned 

to segregated schools will attend integrated schools at 

some point in their career. In practice this means that 

the substantial number of black children who would 

attend segregated elementary schools (more than half 

of all black children under the respondents’ plan) 
would then go on to integrated junior and senior high 

schools. Black students who attend the segregated 

junior high schools presumably would be assured an 

integrated high school experience. 

It is clear, however, that the harm inflicted upon 

Negro children in segregated elementary schools is not 

undone by providing integrated schooling later on. In 

its Racial Isolation Report, the U.S. Commission on 
  

15 Racial and Social Class Isolation in the Schools, A Report to 

the Board of Regents of the University of the State of New York 

(1969) at 374. 

16 Racial Isolation in the Public Schools (1967) at 138. 

   



19 

Civil Rights examined the cumulative effects of segre- 
gation and desegregation upon student attitudes and 

achievement. Employing data compiled by a major 

survey conducted by the United States Office of Educa- 

tion, the report noted that the average grade-level per- 

formance for 9th grade Negro students was consistently 

higher when their earliest grade of attendance in de- 

segregated schools was the 1st, 2nd or 3rd grade than 

when it was later.” The Commission concluded: 

‘“ Both the academic performance and attitudes of 
Negro students, then, are affected by the duration 
of their school contact with whites. Students 
whose first contact with whites was late in elemen- 
tary or early in secondary schools are at a distinct 
disadvantage when compared with Negroes who 
have had school contact with whites since the 
early grades.”’ '® 

The fact that all of the available research demon- 

strates that the alternative steps proposed by the court 

will not undo the harm caused by segregation under- 

scores the Incorrectness of its decision and the danger 

to black children in the adoption of loose standards of 

‘reasonableness’ that permit something less than 

prompt and complete compliance. 

  

17 Racial Isolation in the Public Schools (1967) at 106-108. The 

Office of Education survey itself made a similar finding—that pu- 
pils who first entered integrated schools in the early grades re- 

corded consistently higher scores than other groups. Office of 
Education, U. S. Department of Health, Education and Welfare, 
Equality of Educational Opportunity (1966) at 20, 32. 

18 Racial Isolation in the Public Schools at 108.  



20 

IV. 

CONCLUSION 

Prompt action is needed in this case if irreparable 
harm is not to be inflicted on petitioners and thousands 

of other black children. The decision below cannot 

stand because it allows school boards to continue to 

segregate schools merely because an effective remedy 

might cause some burden or inconvenience. 

It would be tragic irony, if, after years of massive 

resistance, evasion, and delay the rights of black child- 

ren were now denied or further delayed on grounds 

that ending segregation is ‘‘unreasonable.”’ 

Amici believe that under the authority of Alexander 

v. Holmes County Board of Education, 396 U.S. 19, a 
stay of the order of the Court below would be appro- 
priate relief. But neither a stay nor the injunction 
pendente lite sought by petitioners would be an ade- 

quate substitute for an expedited hearing and disposi- 
tion of the case. Only a prompt decision of this case 
on the merits can avert harm to thousands of black 

children in other districts. 

Accordingly, amici urge that the Court grant the 

petition for writ of certiorari, and petitioners’ motion 

to advance during the current term or if need be dur- 

ing such special or extended terms as may be con- 

venient. 
Respectfully submitted, 

WiLLiaAM L. TAYLOR 
1325 Iris Street, N.W. 
Washington, D. C. 20012 

JoserpH L. RAUH, JR. MARIAN WRIGHT EDELMAN 

1001 Connecticut Ave., N.W. RuBY G. MARTIN 
Washington, D. C. 20036 RicaArD T. SEYMOUR 

RicaHARD B. S0BOL 
PETER LIBASSI 2 MicHAEL B. TRISTER 

National Urban Coalition Washington Research Project 
2100 M Street, N.W. 1823 Jefferson Place, N.W. 
Washington, D. C. Washington, D. C. 20036 

Of Counsel Attorneys for Amici Curiae [||31f0f371-1364-465e-b9be-8b3d307ac747||]