Motion for Leave to File Brief Amici Curiae, Out of Time and Brief Amici Curiae

     [||040996b6-f3bc-414c-8497-348091e7b01c||] IN THE 

Supreme Court of the United States 
Ocroser Term, 1970 

No. 281 
James E. SWANN, ET AL, Petitioners 

V. 

CHARLOTTE-MECKLENBURG BoarD oF EDUCATION, ET AL, 
Respondents 

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

No. 436 
Birpie Mar Davis, Br AL., Petitioners 

Vv. 
Boarp or ScHOOL CoMMISSIONERS oF Mose CoUNTY, ET AL., 

Respondents 

On Petition for Writ of Certiorari to the United States Court 
of Appeals for the Fifth Circuit 

MOTION FOR LEAVE TO FILE BRIEF AMICI 
CURIAE, OUT OF TIME 

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 Cenier for Law and Education, 
Harvard University: and the Washington Research Project 
of the Southern Center for Studies in Public Policy. 

JosepH L. Raum, JR. MARIAN WRIGHT EDELMAN 
1001 Connecticut Ave., NW. RicaARD B. SoBOL 
Washington, D.C. 20036 MicHAEL B. TRISTER 

Dorin [ApsG 1823 Jefferson Place, N.W. 
2100 M Street, N.W. Washington, D.C. 20036 

‘Washington, D.C. 20036 WiLLiam L. TAYLOR 
1325 Iris Street, N.W. 

VERNON JORDAN Washington, D.C. 20012 
55 BE. 52d Street, oe 
New York, N. Y. 10022 Attorneys for Amici Curiae 

Of Counsel 

  

  

Press oF BYRON S. ApaMs PRINTING, INc., WASHINGTON, D. C.  



TABLE OF CONTENTS 

Page 

Moriox ror Leave To Fie Brier Amict Curiar, Our 
oF TIME 

Summary of Argument 

Argument 

I. Disestablishment of a dual school system requires 
that, unless demonstrably unfeasible, pupils be 
assigned so that mo school has a student body 
which is all-black or so disproportionately black 
as to make the school identifiable as a ‘‘black 
school ’’ 

A. 

B. The principles declared in Green 

C. Schools with black student bodies which could 
feasibly be desegregated are remnants of the 
system of discrimination condemned in 
Brown 1 

II. Elimination of ‘‘black schools’’, where feasible, is 
required as a remedy for the wrong of official seg- 
regation which produced those schools  



  

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ii Table of Contents Continued 

Page 

ITI. The courts of appeals in these two cases imper- 
missibly approved the continued existence of black 
school on grounds falling short of the unfeasibility 
of degegregatino them ...........c.covaveens.s 26 

A. The Mobile case and the ‘neighborhood school 
COROCDLT ens vir nnn anna sntswasnsion slides 27 

B. The Charlotte case and the ‘‘rule of reasonable- 
co rae rl EEE Ba EE i 31 

C, The question of busing .................... 34 

Conclusion... ir i cinerea tras 37 

TABLE OF AUTHORITIES 

CasEs: 

Adams v. Mathews, 403 F. 2d 181 (C.A. 5,1968) ...... 27 

Alexander v. Holmes County Board of Education, 396 
1.8. 19 (1969), ...0scenss vos dusiisborentde Sh ii 22, 30 

Allen v. Board of Public Instruction of Broward 
County, C.A. 5, No. 30032, August 18, 1970 ...... 17 

Andrews v. City of Monroe, C.A. 5, No. 29358, April 
nha v0 Re pe a ed EE pa ea pe 17 

Blocker v. Board of Education, 226 F. Supp. 208 (E.D. 
NY. T0084) iti ocises soins snior tn siavss olin isis sluci vice 22 

Brewer v. School Board of the City of Norfolk, 397 
F.2d 37 (0C:A. 24,1908) ..,...c00c0:0105s" satin 34 

Brown v. Board of Education of Topeka, 347 U.S. 483 
(1954) (Brown 1) ......... ..... 910,12 13,18, 20, 23 

Brown v. Board of Education of Topeka, 349 U.S. 294 
(1955) (Brownadl) . coo. 00th sibs svsmssnss os 14, 34 

Carter v. West Feliciana Parish School Board, 396 
15S. 290 A170) . .ciciiurilnvinisssiss + Sins: nuisisimesivs » 2. 27 

Cooper v. Aaron, 3583 U.S, 1 (1958) ......% .50oeil... 30 
Ellis v. Board of Public Instruction of Orange County, 

423 72d 203.0C. A: 5, 1970) ....l i Jou vaiionsin ii 30 
Felder v. Hornett County Board of Education, 409 

FP. 24 203 (C.A.4,,1909) ...c.uv.s dma dha unis 17 

hh a ia riagsecno.e. es ,., Lv ur él. lls» s lio, Le rei Me kh ka a at sa" 

 



Table of Contents Continued 11d 

Page 

Green v. Board of School Commissioners of New Kent 
County, 391 U.S: 430 (1968) ...... 9,10, 12, 14, 15, 19, 

20, 21, 23, 30, 31 

Griffin v. County School Board of Prince Edward 
County, S77: U.S. 28 (1964) i... vc. vin snins J vis 33 

Haney v. County Board of Education of Sevier County, 
C.A. 8, No..19,899, June 129, 1970; sv... satan cv 17 

Henry v. Clarksdale Municipal Separate School Dis- 
trict, 409 P, 24 632 (C.A. 5, 1969) .............. 27 

Henry v. Clarksdale Municipal Separate School Dis- 
{riet, C.A. 5, No. 29165, August 12, 1970.......... 28 

Hobson v. Hansen, 269 F. Supp. 401 (D.D.C. 1967) ..18, 22 
Louisiana v. United States, 380 U.S. 145 (1965) ...... 24 

Monroe v. Board of Commissioners of The City of 
Jaclkwon 8391 U.S. 450 (1968) ..... deus. du nh, 20 

Nesbit v. Statesville City Board of Education, 418 F. 2d 
J040 (CLA. 4, 1900) ...0oo00ts sc isvsiesnnsivnss, 25 

Singleton v. Jackson Municipal Separate School Dis- 
trict, 419 BF, 24 1211 (C.A.5,1969) ............., 25 

United States v. School District 151 of Cook County, 
404 F.2d 1125 (C.A. 7, 1968) ....... c.c....... 23 

United States v. Indianola Municipal Separate School 
District, 410 F. 24 626: (1969) .................. 28 

United States v. Montgomery County, 395 U.S. 225 
(O08) 10s 50 vid 9h Thunb amis vin von visivitinnd fetes 23, 24, 25 

Wright v. Board of Public Instruction of Alachua 
County, C.A. 5, No. 29999, August 4,1970 ........ 17 

OTHER AUTHORITIES : 

Black, The Lawfulness of the Segregation Decisions, 
69 Yale LT 421 (1960) ........ i... .c0oeieiversss 13 

Center for Urban Education, ‘On the Matter of Bus- 
ing’’ (Staff Memorandum, February 1970) ...... 35 

Coles, Northern Children Under Desegregation, 31 
Paychinlry 1 (1008)... cos visi rirenirrarnes 36 

Levine and Griffin, The Busing Myth, South Today, 
Vol. 1, Ne. 10, at 7 (May 1970) ............ %.. 36 

President’s Statement on School Desegregation, 
March 24, 1970 ..... ihc evar di canned 25  



  

1v Table of Contents Continued 

Page 

Brief for the United States, United States v. Montgom- 
ery County, No. 798 October Term 1968 ........ 23, 24 

United States Commission on Civil Rights, Racial Iso- 
lation in the Public Schools (1967) ............ 18, 22 

United States Commission on Civil Rights, Transeript 
of Hearing held in Montgomery, Alabama (1968) 19 

United States Office of Education, Equality of Educa- 
tional Opportunity (1966)... 0. vii via. Ju vnuns 19 

   



IN THE 

Supreme Court of the United States 
OctoBer Term, 1970 

  

No. 281 

James E. SwANN, BT AL., Petitioners 

V. 

CHARLOTTE-MECKLENBURG BoARD oF EDUCATION, ET AL, 
Respondents 

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

  

No. 436 

Birpie MAE Davis, ET AL., Petitioners 

V. 

Boarp or ScrooL ComMIssioNERS OF MoBILE COUNTY, ET ALL, 
Respondents 

On Petition for Writ of Certiorari to the United States Court 
of Appeals for the Fifth Circuit 

MOTION FOR LEAVE TO FILE BRIEF AMICI 
CURIAE, OUT OF TIME 

The following organizations—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 Recources Center; the Center  



  

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for Law and Education, Harvard University ; and the Wash- 

ington 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 amici curiae in the above-entitled cases. Petitioners 
in both cases, the United States as a party to No. 436, and 
the Charlotte-Mecklenburg Board of Education as a re- 
spondent in No. 281, have consented to the filing.? The other 

respondents have not yet replied to our request for consent 

to file. 

Under the briefing schedule established by this Court 
briefs amici curiae supporting the position of petitioners 

were due by September 16, 1970. Rule 42(2), Rules of Su- 

preme Court. Movant organizations respectfully request 

that leave be granted to file the attached brief out of time. 

As set out below, movant organizations represent a broad 

and diverse spectrum of citizens, united by a common 

concern for quality integrated education. They desire to 

present to the Court a unified treatment of these two 

critical cases. The accelerated briefing schedule established 
by this Court, under which amici briefs supporting peti- 
tioners were due seventeen days after the Court’s order, 
made it impossible for counsel to consult with all of them 

and agree on a common treatment of both cases, and to 

prepare a brief giving full and comparative attention to 
the Mobile as well as the Charlotte case, by September 16. 

The United Negro College Fund, Inc., is an organization 

consisting of 36 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 

  

! Movant organizations earlier filed a brief amici curiae urging 

the grant of certiorari in No. 281, by leave of this Court granted 
pursuant to motion. 

2 The written consent of these parties has been filed with the 

Clerk. 

   



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are well prepared for college and thus have a continuing 
concern about the persistence of segregated public schools. 

The National Urban Coalition is an organization whose 

purpose is to improve opportunities and conditions of 

life for citizens living in urban areas of the nation. 

Founded in 1967, it has 47 affiliated local coalitions and 

representation from corporations, unions, religious, and 

civil rights organizations. The improvement of educa- 

tional opportunity is among its prime purposes and to 

that end it has sponsored educational research and par- 

ticipated as amicus curiae in a case involving the equal 
distribution of educational resources. 

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-Mecklenburg, North 

Carolina, are three organizations with common aims and 
principles but with independent decision-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 Islands. As part of its overall 
program of encouraging informed and active participa- 

tion of citizens in government, the national League has 

placed major emphasis upon the quality of public edu- 

cation and in 1970 reaffirmed its pledge to support efforts 

to end racial discrimination in education. The North 

Carolina and Charlotte-Mecklenburg Leagues have con- 

ducted studies of the quality of educational opportunity 

in their respective areas. Like the national League, they 

are committed to work for equality of opportunity in 

education. 

The Mississippi Educational Resources Center is a 
private organization established in 1969 to represent pro- 

fessional, parent, and community groups throughout the 

State of Mississippi. Its membership is predominantly 

black. Its purpose is to assist communities and school 

districts in overcoming problems incident to the school 

desegregation process and to assure that desegregation 
takes place and in an orderly and positive manner.  



    

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

University and the United States Office of Economic Op- 
portunity to ‘‘promote reform in American education by 

working in the area of social policy and law.”” To carry 
out its aims, the Center has sponsored and conducted 

research on various aspects of the educational process. 

It has also served as amicus curiae in several cases in- 
volving 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 assist in the establish- 
ment of equality of opportunity for all citizens through 

negotiation and monitoring of administrative agency 
programs and litigation. It is deeply concerned with edu- 

cational issues, particularly with alleviating the continu- 

ing effects of racial discrimination 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 conducted without discrimination. 

Fach 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 commitment 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 these cases 

for the purpose of supporting fully the position of the 

petitioners. Movants believe, however, that—by virtue of 

   



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their breadth, their special interest in education and the 

scope of their activities in conducting and sponsoring re- 

search on issues of education and civil rights—they are 

well equipped to inform the Court with respect to the 

impact that the decisions of the courts below may have 

upon the process of school desegregation throughout the 

nation. Further, movants believe that a unified and com- 

parative treatment of these two cases might helpfully 
supplement the separate treatment provided in the briefs 
for the petitioners. 

Accordingly, movant organizations respectfully request 
that the Court grant leave to file the attached brief amici 
curiae. 

Respectfully submitted, 

Mariax WricHT EDELMAN 

RicaARD B. SosoL 

MicuArL B. TRISTER 

1823 Jefferson Place, N.W. 

Washington, D. C. 20036 

WirLiam L. Tavror 

1325 Iris Street, N.W. 

Washington, D. C. 20012 

Attorneys for Amici Curiae 
JosepH L. Raum, Jr. 

1001 Connecticut Ave., NW. 

‘Washington, D. C. 20036 

Peter LiBasst 

2100 M Street, N.W. 

Washington, D.C. 20036 

VERNON JORDAN 

55 KE. 52d Street 

New York, N.Y. 10022 

Of Counsel  



0 

IN THE 

Supreme mut of the United States 
OcroBer TERM, 1970 

  

No. 281 

JAMES KE. SWANN, ET AL., Petitioners 

V. 

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

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

  

No. 436 

Birnie MAE DAVIS, ET AL., Petitioners 

Vv. 
BoARD oF ScHOOL COMMISSIONERS OF MOBILE COUNTY, 

ET AL., Respondents 

On Petition for Writ of Certiorari to the United States Court 
of Appeals for the Fifth Circuit 

  

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 Center for Law and Education, 
Harvard University: and the Washington Research Project 
of the Southern Center for Studies in Public Policy. 

  

INTEREST OF AMICI 

Amici, as is more fully set forth in the Motion for 
Leave to File a Brief Amici Curiae, are all organiza- 

tions with a deep interest in maintaining and improv-  



  

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ing the quality of education available to children of all 
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. 

STATEMENT 

A. No. 281, Swann v. Charlotte-Mecklenburg Board 
of Education 

During the 1968-69 school year, the Charlotte-Meck- 
lenburg school system served more than 84,000 pupils 

in 107 schools (293a-294a).! Approximately 71 per 

cent of the pupils were white and 29 per cent were black. 
During that year, nearly 17,000 of the more than 24,000 

black pupils in the district attended predominantly 
black schools, under a geographic zoning plan allowing 

for free transfer (459a). 

To remedy this situation, which all parties now agree 

fell short of achieving a unitary school system, the dis- 

trict court held numerous hearings and received vo- 

luminous evidence. As a result of this extensive liti- 
  

1 Record references in this form are to the printed Appendix 

filed in No. 281. 

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gation, the details of which are set out in the Brief for 
Petitioners in No. 281, the district court was presented 
in February of 1970 with two alternative pupil assign- 
ment plans. 

The school board proposed a plan which was based 
exclusively upon the technique of ‘‘neighborhood’’ or 
contiguous attendance zoning (727a-728a). The board 
plan substantially integrated all the high schools, pro- 
ducing a white majority of at least 64 per cent in each 
school (829a). The plan desegregated most of the 
Junior high schools, but left one of them 90 per cent 
black and several virtually all white (830a). With re- 
spect to the elementary schools, the board plan left 
more than half the black elementary school pupils in 
nine schools which were between 83 per cent and 100 
per cent black and about half the white elementary 
pupils in schools 86 per cent to 100 per cent white 
(832a-834a). 

An educational expert appointed by the court, Dr. 

John Finger, presented an alternative plan which de- 

segregated every school in the Charlotte-Mecklenburg 

system. With one minor modification, not now in issue, 

his plan adopted the board’s proposed zoning of high 

school attendance areas. With respect to the junior 
high schools and the elementary schools, the plan 

started with the contiguous attendance zones proposed 

by the board, but where those zones left schools racially 

identifiable by the makeup of their student bodies, it 

paired all-black or predominantly black schools with 
non-contiguous all-white or predominantly white 

schools so that all the students in the zones feeding both 

schools would attend the formerly white school for 

grades 1-4 and the formerly black school for grades 
5-6 (1209a-1214a).  



  

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Before February 1970, the Charlotte-Mecklenburg 

school system had provided substantial bus service to 

its pupils. During the 1969-70 school year, the board 

operated 280 school buses transporting nearly 25,000 

of its 84,000 students (619a), at a cost of about 

$475,000, or about $20 per child (1259a). The plan 

devised by the court-appointed expert required the 

additional transportation of 13,300 pupils—1,500 high 

school, 2,500 junior high school, and 9,300 elementary 

school. The additional operating cost of transporting 

these pupils was to be about $266,000 (1269a). It was 

originally thought that the new busing requirements 

would entail a capital outlay of about $745,000, but it 

now appears from the hearing held after this Court 

granted certiorari that the outlay will be much lower 

because of surplus buses the school board has on hand 

(Br. A18-A23).> The school budget for the Charlotte- 

Mecklenburg system for 1970-71 is about $66 million 

(Br. A21). 

Under the court expert’s plan, approximately 47 

per cent of the pupils in the Charlotte-Mecklenburg 

system would be bused to school. In North Carolina 

as a whole, about 55 per cent of all pupils ride buses to 

school (1289a). The average one-way bus trip for 

pupils newly bused under the plan would be about 7 

miles, taking about 35 minutes (1215a). In North 

Carolina as a whole, the average one-way bus trip is 

about 12 miles (1199a), and in Charlotte-Mecklenburg 

the average trip during the 1969-70 school year was 

about 15 miles, taking about an hour and a quarter 

(1204a). 

  

2 Record references in this form are to the Appendix to the 

Brief for Petitioners in No. 281, wherein the distriet court pro- 
ceedings following this Court’s grant of certiorari are set out. 

   



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The district court ruled that the school board’s plan 

fell short of constitutional requirements, while the plan 

proposed by the court-appointed expert did achieve a 

unitary system and was feasible; accordingly, he 

ordered the expert’s plan into effect (819a). On ap- 
peal, the court of appeals agreed that the school board’s 

plan failed to achieve a sufficient degree of pupil inte- 
gration to qualify as a unitary plan, and accepted the 

district court assignment plans for junior and senior 

high schools, plans which involved some noncontiguous 

zoning and additional busing. However the court held 

that the assignment plan for elementary schools re- 

quired an excessive amount of additional transporta- 

tion, and set aside that part of the order. The court 

adopted what it called ‘‘the test of reasonableness’; it 
held ‘‘first, that not every school in a unitary system 

need be integrated ; second, nevertheless, school boards 

must use all reasonable means to integrate the schools in 

their jurisdiction. ...”” (1267a). Judges Sobeloff and 
Winter, dissenting, would have affirmed the district 

court order in its entirety (1279a; 1295a); Judge 
Bryan, concurring specially, indicated his belief that 

the plan proposed by the school board met constitu- 
tional standards (1295a). 

On remand, after this Court granted certiorari, the 
district court reaffirmed its original order. The school 

board failed to come forward with a new plan, and the 
district court found that no educationally sound plan 
falling short of the degree of desegregation achieved in 
its original order had been proposed (Br. A2, A27).  



  

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B. No. 436, Davis v. Board of School Commissioners of 
Mobile County? 

The Mobile County school system served about 73,500 

pupils during 1969-70 in 91 schools; about 58 per cent 

of the pupils were white and 42 per cent black. As in 
Charlotte, an extended course of litigation, summarized 

in the Brief for Petitioners in No. 436, led to a situa- 

tion in January of 1970 in which the district court was 

required to select from alternative plans the one which 
would best comport with constitutional requirements. 

The school board proposed a plan under which nearly 
19,000 black children, about 60 per cent of the black 

students in the system, would be assigned to 21 all- 

black or virtually all-black schools. Educational ex- 

perts from the Department of Health, Education and 
Welfare proposed two plans. The first was based en- 

tirely upon the technique of contiguous zoning, and re- 
quired no additional transportation of students, but 
left nine all-black schools serving nearly 8,000 pupils. 

The second HEW plan used the additional technique of 

satellite or noncontiguous zoning, and paired the re- 

maining all-black schools with predominantly white 
schools in the same way as did the plan ordered by the 

district court in Charlotte. It left no schools all-black. 

Like the Charlotte-Mecklenburg system, the Mobile 

County system has in the past provided substantial bus 

service for its pupils. During the 1967-68 school year, 

207 buses transported 22,094 pupils daily. Busing was 
not confined to the rural areas of the county ; during the 

1966-67 school year, 7,116 pupils were bused within 

metropolitan Mobile. Nor was busing confined to trans- 

  

3 Because the printed Appendix in No. 436 was not available 
when this brief was prepared, our statement of the case necessarily 

lacks record references. 

   



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porting pupils to the nearest school ; during the 1966- 

67 school year, 2,350 pupils were bused because of non- 

contiguous zone assignments. Much of the busing was 
provided in order to maintain segregation. 

Because the district court did not hold evidentiary 

hearings on the proposed plan, the record in this case 

does not reflect the extent or cost of the additional 

transportation which would be required to implement 
the HEW alternative plan which eliminated the all- 

black schools in the Mobile system. 

In the January 1970 district court proceedings, the 

petitioners urged the court to adopt the HEW plan 

which would eliminate the all-black schools; the United 

States, which is a party to the case, urged the adoption 

of the other HEW plan, which proposed no additional 

transportation but left several all-black schools; and 
the school board urged adoption of its own plan. The 

district court ordered the school board plan into effect. 

On appeal, the three parties maintained their respeec- 

tive positions. The court of appeals held that the 

school board plan did not provide a unitary system, but 

at the same time it rejected petitioner’s HEW plan 

which would have eliminated the all-black schools. It 

accepted a modification of the HEW contiguous zoning 

proposal, which, after further modification, left six all- 

black elementary schools serving about 5,300 children— 

about 17 per cent of the black pupils in the whole 
Mobile County system, and about 50 per cent of the 
black elementary school pupils in metropolitan Mobile. 

There have been further subsequent minor modifica- 

tions of the plan, but the record does not make clear 

how these modifications have affected the racial makeup 
of the schools.  



  

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The court of appeals proceeded under a legal stand- 

ard which it stated as follows: 

“We have examined each of the plans presented 
to the district court in an effort to determine which 
would go further toward eliminating all Negro or 
virtually all Negro student body schools while at 
the same time maintaining the neighborhood 
school concept of the school system.” 

C. A Comparison of the Two Cases 

Both the Mobile and the Charlotte school systems op- 

erated full dual school systems based on race well into 

the 1960’s. In both, little pupil desegregation had 

been achieved by the end of the 1968-69 school year. 

Both are large systems, serving a majority of urban 

and a minority of rural school children. Both systems 

have in the past transported substantial numbers of 

children to school by bus and in both busing has been 

used to perpetuate the system of segregation. 

In both systems, substantial residential segregation 

makes it impossible fully to desegregate each elemen- 

tary school if assignment is based solely on ‘‘neighbor- 

hood?’ or contiguous attendance zones. In both cases, 

plans have been proposed which would use only con- 

tiguous zones, and in both cases these plans would leave 

approximately half of the black elementary school chil- 

dren in all-black or virtually all-black schools. In both 

cases, alternative plans have been proposed which 

would desegregate every school’s student body by pair- 

ing schools in black areas with schools in noncontiguous 

white areas; in both of the cases, these plans would re- 

quire the school system to provide additional trans- 

portation to get children to school. 

In the Charlotte case, district court findings sup- 

ported by substantial evidence indicate that the addi- 

 



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tional transportation required by the complete desegre- 
gation plan would cost the school less than one percent 

of its operating budget. The percentage of children 
bused under the plan, and the average length of the 
bus trip, would be well within the statewide average 

for North Carolina. Similar evidence and findings are 

not available in the Mobile case, in which the district 
court has not held evidentiary hearings on the proposed 

plans. However the record in the case indicates that 
both noncontiguous zoning and busing of students are 

familiar assignment techniques in the Mobile school 
system. 

In both cases, the respective courts of appeals have 

rejected the proposed plan which would completely 

desegregate the school system. The rationales for the 

rejection differ somewhat: in the Mobile case the Fifth 

Circuit has refused to go beyond ‘‘neighborhood’’ or 

contiguous zoning to achieve desegregation; while in 

the Charlotte case, the Fourth Circuit has approved 
some noncontiguous zoning with accompanying addi- 

tional transportation, but has disapproved more exten- 

sive use of the same technique as ‘““unreasonable.”’ 

SUMMARY OF ARGUMENT 

I. In Brown v. Board of Education of Topeka, 347 

U.S. 483 (1954), this Court found that the system of 
official segregation of the schools, based as it was upon 

the assumption that black people were morally and in- 

tellectually inferior to whites, amounted to a massive 

government-sponsored racial insult to the black people 
subjected to it, and hence violated the equal protection 

clause. In Green v. Board of School Commissioners of 
New Kent County, 391 U.S. 430 (1968), the Court de- 
clared three basic principles to govern final implemen-  



    

10 

tation of Brown: 1) the system of segregation must be 

dismantled and its effects undone; 2) the goal of this 

process is the abolition of racially identifiable schools; 

and 3) officials must take all feasible steps to achieve 

this goal and bear a heavy burden of justification for 

any failure to do so. 

In the context of the present cases, Brown and Green 

mean that in school districts which have officially segre- 

gated the races, schools with all-black or very dispro- 

portionately black student bodies cannot be tolerated 

where feasible alternative plans of pupil assignment 

exist. Such schools are racially identifiable ‘‘black 

schools.” To both whites and blacks in the community 

they represent the perpetuation of the system of official 

segregation and the official assumption of black inferi- 

ority upon which that system rests. They inflict the 
same psychological harm on black children as was con- 

demned in Brown, and they perpetuate tangibly second- 

rate education for the pupils assigned to them. These 

schools must be abolished wherever this is possible 

through known techniques of pupil assignment; no ex- 

cuse short of complete technical unfeasibility can be 
allowed. 

II. The issue in these cases is not whether as an ab- 

stract matter the Constitution commands a particular 

racial balance in public schools, or even whether the 

Constitution condemns all-black schools as such. It is 

rather what remedy is required to undo the particular 

historical system of school segregation existing in this 

country, founded as it has been on assumptions of 
racial inferiority. The instructive analogy is to fac- 

ulty desegregation, where this Court has approved a re- 

quirement of full racial balance, not as a substantive 
constitutional requirement, but as a remedy to dis- 

-——f 

   



4 

11 

mantle a well-entrenched system and to undo, as far as 
possible, the effects of that system. 

III. In the two present cases, the courts of appeals 

have tolerated the perpetuation of black schools on 
grounds short of the unfeasibility of abolishing them. 

In Charlotte, the district court ordered a plan of com- 

plete desegregation which the record makes clear is 

technically feasible. In Mobile, the district court’s 

failure to hold hearings has prevented development of 
a similar record, but a plan of complete desegregation, 

never found unfeasible by any court, has been sub- 

mitted by government educational experts. 

The excuses put forward to justify continued segre- 
gated schools are constitutionally insufficient. The 
Fifth Circuit’s ‘‘neighborhood school concept’ repre- 

sents only one among several competing systems of 

pupil assignment used in this country, one without con- 

stitutional status, and one which has not been used in 

the South generally or in Mobile in particular. The 

Fourth Circuit’s vague ‘‘rule of reasonableness’ ap- 
pears to excuse continued segregation where integra- 
tion would require ‘‘too much’’ incidental transporta- 

tion with its accompanying cost. ‘Cost as such, particu- 
larly the very limited costs of achieving full desegrega- 
tion in these cases, is not a sufficient excuse for main- 

taining segregated schools. Busing is a familiar tech- 

nique of getting children to school, often used for pur- 

poses other than desegregation. It, like all other stand- 

ard educational techniques, must be used where needed 
to complete the process of disestablishing the dual 
school system.  



  

12 

ARGUMENT 

I. DISESTABLISHMENT OF A DUAL SCHOOL SYSTEM 
REQUIRES THAT, UNLESS DEMONSTRABLY UN- 
FEASIBLE, PUPILS BE ASSIGNED SO THAT NO 
SCHOOL. HAS A STUDENT BODY WHICH IS ALL- 

BLACK OR SO DISPROPORTIONATELY BLACK AS TO 

MAKE THE SCHOOL IDENTIFIABLE AS A “BLACK 

SCHOOL". 

These cases raise the question whether school officials 

who have been operating separate systems of schools 

based upon race can be said to have disestablished those 

systems when they continue to assign pupils so as to 

maintain schools with all-black or disproportionately 

black student bodies. We submit that the answer is 

“No’’—at least where there exist feasible alternative 

methods of assignment which would desegregate those 

schools. 

The issue is not whether as an abstract matter the 

Constitution requires any particular racial balance in 

public schools generally, or even whether the Constitu- 

tion generally forbids all-black or predominantly black 

schools whatever their historical background. Rather 

the issue is the narrower one of what remedy is re- 

quired to eliminate the last vestiges of a particular 

historical practice, long since judged to be unconstitu- 

tional, namely the official and mandatory assignment 

of black children to separate schools set aside for their 

race. 

The underlying rationale of Brown v. Board of Edu- 

cation of Topeka, 347 U.S. 483 (1954) (Brown I) and 

the specific principles pronounced in Green v. Board 

of School Commissioners of New Kent County, 391 

U.S. 430 (1968), require the abolition of schools iden- 

tifiable as black by the makeup of their student bodies, 

wherever this can be accomplished by feasible tech- 

niques of student assignment. The grounds stated by 

   



13 

the Fourth and Fifth Circuit Courts of Appeals for ap- 

proving plans which fall short of this requirement in 
the present cases are insufficient as a matter of estab- 
lished law. 

A. The Rationale of Brown i 

In the first Brown decision, this Court held that 

racial segregation of the public schools violated the 
equal protection rights of black children. In the Amer- 

ican historical context, the system of segregation was no 

less than a massive government-sponsored racial insult 
to the black people subjected to it, based on assumptions 

of their intellectual and moral inferiority to white 

people. The system of segregation, and the official 

insult it carried with it, was most damaging as applied 

in the schools, for there it was directed at children of 

unformed minds and developing personalities, in the 
public institutions most crucial to their growth. The 

system was unconstitutional because the history of the 

Fourteenth Amendment made clear that the framers 

meant to forbid all official action which injured or de- 

graded black people because they were black. 

Thus Brown I rested firmly on the finding of the 
Kansas district court: ‘“Segregation of white and 

colored children has a detrimental effect upon colored 

children. The impact is greater when it has the sanction 

of the law; for the policy of separating the races is 

usually interpreted as denoting the inferiority of the 

Negro groups.” 347 U.S. at 494. That was sufficient 

to establish the constitutional violation; official segrega- 

tion meant official imputation of racial inferiority, and 

hence official injury to black people because of their 

race. 
  

4 See generally Black, The Lawfulness of the Desegregation De- 
cistons, 69 Yale L.J. 421 (1960).  



    

14 

B. The Principles Declarea In Green. 

In Brown I the Court declared the basic principle; 

in Brown Vv. Board of Education of Topeka, 349 U.S. 

294 (1955) (Brown II), the job of implementing the 
principle was returned to the district courts. In Green, 
supra, the Court addressed itself in detail to the stand- 

ards governing that implementation, and laid down 

three essential guidelines which govern these cases. 

First, the Court stated that the constitutional goal 

was ‘‘the abolition of the system of segregation and its 

effects.” 391 U.S. at 440. The Court, in referring to 
the system of segregation and its effects, recognized 

that the dual school system constituted and supported 
a set of social practices, practices which by their exist- 

ence and maintenance conveyed and continued the 

racial insult condemned in Brown I. The job of the 

courts in remedying the wrong of segregation was not 

merely to undo the formal legal arrangements of the 

dual system, but also more broadly to dismantle the in- 
stitutions in which those arrangements found fruition.’ 

Second, the Court specified what a unitary system 
was : it was one ‘without a ‘white’ school and a ‘Negro’ 

school, but just schools.” 391 U.S. at 442. Here the 
Court dispelled any notion that a system might some- 
how be desegregated while its schools retained their 

former racial identification. 

Third, the Court placed upon officials who had op- 
erated dual school systems ‘‘the affirmative duty to 

  

5 The Court in Green traced the obligation to abolish and dis- 

mantle the entire system of segregation back to Brown II and its 
command, 349 U.S. at 301, ‘‘to effectuate a transition to a racially 

nondiseriminatory school system.’’ 391 U.S. at 435. 

6 See Green, 391 U.S. at 437: “Brown II was a call for the dis- 

mantling of well-entrenched dual systems ....”’ 

J
 

   



15 

take whatever steps might be necessary to convert to a 
unitary system in which racial discrimination would be 
eliminated root and branch.” 391 U.S. at 437-438 (em- 
phasis added). When school officials claimed to be op- 
erating unitary systems, the district courts were to 
‘““weigh that claim in light of the facts at hand and in 
light of any alternatives which may be shown as fea- 
sible and more promising in their effectiveness. . . .”’ 
391 U.S. 439 (emphasis added). Thus no excuse would 
be heard that the means required might be too onerous; 
the school officials were to take ‘‘whatever steps might 
be necessary,” to adopt ‘‘any alternatives which may 
be shown to be feasible.” Along with the ‘affirmative 
duty’’ to achieve complete desegregation went “a heavy 
burden upon the board to explain its preference’’ for 
anything less than the most effective feasible plan of 
desegregation. Ibid. (emphasis added). 

Thus Green held : 1) that the system of segregation 
must be dismantled and its effects undone; 2) that the 
goal of this process was the abolition of racially iden- 
tifiable schools; and 3) that boards must take all fea- 
sible steps to achieve this goal and bear a heavy burden 
of justification for any failure to do so. 

C. Schools With Black Student Bodies Which Could by Fea- 
sible Assignment Techniques Be Desegregated Are Rem- 
nanis of the System of Discrimination Condemned in 
Brown I. 

Where a school in a dual system is attended exclu- 
sively or very largely by black children, and where 
school officials maintain this attendance pattern in the 
face of feasible alternatives which would produce an 
integrated student body, that school is as a practical 
matter the equivalent to the ‘“colored school’ of the 
pre-Brown system of segregation. The very difficulty  



  

16 

of persuading southern school officials, southern judges, 

and even federal bureaucrats to do the job of integrat- 

ing these schools is the best evidence for this fact. 

White school officials and parents feel a peculiar horror 

at the idea of assigning white children to these schools, 

as the records in these cases attest. 

In Charlotte, when the school board was finally 

forced to the point of achieving some substantial de- 

segregation in the summer of 1969, it proposed to move 

substantial numbers of black children to white schools, 

and to use school buses to get them there (481a-482a). 

Several black schools were closed, and the children 

whom they had served were bussed into white neigh- 

borhoods. There were no accompanying transfers of 

white students into the black central city schools 

(5902). Judge McMillan pointed out that this one- 

way integration plan was ‘‘an affront to the dignity 

and pride of the black citizens’’ in his August 15, 1969, 
order, but felt compelled to accept the plan for the 

1969-70 school year by the exigencies of time (586a, 

589%a-590a). 

In Mobile, when educational experts from the De- 

partment of Health, Education and Welfare were asked 

to prepare a plan for desegregation in the summer of 

1969, their response also was to close black schools and 

bus the children who had attended them into white 

areas of town. But, where closing of a black school 

could not be justified, the student body of that school 

was left all-black ; no white-to-black transfers were pro- 

posed. When the experts were asked about this obvious 

discrepancy, their response—that ‘‘cross-busing” did 

not have ‘financial’ or ‘‘community’’ support— 

amounted to a concession that the notion of actually 

desegregating ‘‘black schools’ by assigning white stu- 

   



17 

dents to them was too radical to contemplate even in 

the year 1969. They purported to rely on alleged 
legal difficulties with ordering busing of students to 

achieve desegregation, but as the plan they submitted 

clearly shows their chief concern was with cross-bus- 

mg—the busing of white as well as black children. 

In general, school desegregation to date has been a 

one-way process. Black children have been allowed 

into the white schools, but there have been few corre- 

sponding transfers of white children to black schools. 

Instead, large numbers of those black schools have been 

closed or reassigned to subsidiary uses such as voca- 

tional or special education classes even where they were 

newer and better equipped than the white schools which 

remained open, and even at the cost of running the 

newly integrated white schools on double shifts. Where 

black schools could not be closed, they have largely 
remained all black.” 

Thus the black schools of today, identified by their 

all-black or predominantly black student bodies and by 

their location in black neighborhoods, retain for the 

white community which seeks so hard to avoid them 

the stigma originally conferred by the underlying seg- 

regationist assumption that they are for inferior chil- 

  

"On one-way integration and black school closings, see Judge 
MecMillan’s order in the Charlotte case, text, supra; see also Felder 
Vv. Harnett County Board of Education, 409 F.2d 1070, 1074 (C.A. 

4, 1969) ; Haney v. County Board of Education of Sevier County, 
C.A. 8, No. 19,899, June 29, 1970 (slip opinion at 11-13) ; Andrews 
v. City of Monroe, C.A. 5, No. 29358, April 23, 1970 (slip opinion 
at 8) ; Wright v. Board of Public Instruction of Alachua County, 

C.A. 5, No. 29999, August 4, 1970 (slip opinion at 5); Allen v. 
Board of Public Instruction of Broward County, C.A. 5, No. 
30032, August 18, 1970 (slip opinion at 7).  



  

18 

dren.’ But if they still bear that stigma for the white 

community, so do they for the black community and 

for the black children who attend them. This being so, 

assignment to these schools must have for these black 

children the same ineradicable effects upon their hearts 

and minds which this Court condemned as the central 

vice of state-imposed segregation in Brown 1.° 

Black schools are inferior not only because of the 

racist assumptions upon which they are founded and 

the consequent psychological harm they do, but also in 

a more tangible sense. These schools receive less of 

the resources available for education than do schools at- 

tended by the children of the dominant white com- 

munity, and provide correspondingly inferior facilities 

and services. For example, the Civil Rights Commis- 
sion found that, in a sixteen-county area of Alabama, 

  

8 One of the findings of the Civil Rights Commission, based 
upon its analysis of the extensive Coleman data on race and 

education was that: 

‘“‘Predominantly Negro schools generally are regarded by 
the community as inferior institutions. Negro students in 

such schools are sensitive to such views and often come to 
share them. Teachers and administrative staff frequently 
recognize or share the community’s view and communicate 
it to the students. This stigma affects the achievement and 

attitudes of Negro students.”” U.S. Commission on Civil 

Rights, Racial Isolation in the Public Schools 204 (1967). 

9 A district judge with long experience in the struggle to dis- 

establish the official dual school system put the point well: 

“‘The entire community, white and black, whose own atti- 
tude toward Negro schools is what stigmatizes those schools 

as inferior, must be disabused of any assumption that the 

schools are still officially segregated, an assumption it might 
cling to if after supposed ‘desegregation’ the schools re- 

mained segregated in fact.”” Hobson v. Hansen, 269 F. Supp. 

401, 495 (D.D.C. 1967). 

   



19 

white-attended school buildings and their contents were 
worth an average of $981 per pupil, compared with an 
average of $283 per pupil at black-attended schools. 
Test scores reveal the stark results of this kind of dis- 
parity—black twelfth grade pupils in the urban South 
score 3.5 grade levels behind their white counterparts 
on standard reading comprehension tests. 

It is a fact of political life in the South that the 
power and influence needed to improve the quality of 
schools resides in the white community. That com- 
munity would not long tolerate for its children the kind 
of education which has typically been supplied to black 
children in their separate schools. Only when there 
are no more black schools as such, when the children of 
the white community attend every school, will every 
school receive its fair share of available educational 
resources. 

In G'reen, this Court, recognizing both the continuing 
psychological harm and the continuing inferior educa- 
tion inherent in the black schools surviving from the 
pre-Brown system of segregation, named the racial 
identifiability of schools as the essential evil to be abol- 
ished by the desegregation process. 391 U.S. at 449. 
When school officials maintain schools with student 
bodies all-black or black in gross disproportion to the 
racial makeup of their districts as a whole, even in the 
face of feasible alternatives, they are maintaining 

  

19 Transeript of Hearing held before the U.S. Commission on 
Civil Rights, Montgomery, Alabama (1968), Exhibit No. 26 at 
863. 

1 United States Office of Education, Equality of Educational 
Opportunity (1966), at 274.  



    

20 

racially identifiable black schools.” Green thus re- 
quires these officials to take ‘whatever steps might be 

necessary’’ to abolish their black schools.” 

In the context of these cases, this means that school 

officials must adopt any feasible plan of pupil assign- 

ment which promises to leave no school’s student body 
identifiably black. As Judge Sobeloff has said, ‘‘school 

boards are not obligated to do the impossible. Federal 

courts do not joust at windmills. Thus it is proper to 

ask whether a plan is feasible, whether it can be ac- 

complished.” (1284a). For example, there are all- 

black or virtually all-black school districts, which ob- 

viously cannot within their own boundaries abolish 

black schools. Though we would not discount the pos- 

  

12Tn one of the companion cases to Green, Monroe v. Board 

of Commissioners of the City of Jackson, 391 U.S. 450 (1968), 

the Court held that a geographic zoning plan with a provision for 
free transfers was proved ineffective, and hence insufficient to 
meet constitutional requirements, by the survival of a junior high 
school and three elementary school attended only by black 
students. This rendered them ‘‘Negro’’ schools within the mean- 

ing of Green. 391 U.S. at 457. 

18 Of course in Green the Court condemned the maintenance 

of ‘‘white’’ as well as ‘“black’’ schools. We have focused in these 
cases on the requirement of eliminating the black schools, because 

it is through them that the insult of official discrimination econ- 

demned in Brown I is most concretely imposed upon black people. 

This is not to slight the importance of the goal of eliminating 

white schools as well. Where all-white schools are allowed to con- 

tinue, they provide a safe haven for whites attempting to avoid 

desegregation, and thus constitute a threat to the stability of a 

desegregated school system. As Judge MeMillan stated in the 

Charlotte case, elimination of all-white schools: 

‘would tend to eliminate shopping around for schools; all 

the schools, in the New Kent County language, would be 

‘just schools’; it would make all schools equally ‘desirable’ 

or ‘undesirable’ depending on the point of view; it would 

equalize the benefits and burdens of desegregation over the 

whole county . ...”” (310a-31la).



21 

sibility of restructuring school district lines to achieve 
some degree of practical desegregation in such cases, 

it may be that in some instances geographic factors 

make this a practical impossibility. In these few cases, 

the law obviously does not require abolition of the black 
schools, 

The limitation of feasibility is meant only to deal 
with these few isolated situations where existing tech- 
niques do not make full desegregation a practical possi- 

bility. It is meant to exclude all other excuses for the 

continued maintenance of black schools in dual systems. 

These other excuses are often put forward under the 

rubric that complete desegregation would be ‘“‘impraec- 

tical,” but they do not mean that it cannot be achieved 

by known techniques. Rather as in these cases, they 

mean that it is not a sufficiently important goal to 

justify the use of techniques already familiar to edu- 

cators—such as placing children on buses for a half- 

hour or an hour in order to get them to school. In this 

sense, the ‘“‘impracticality’’ of desegregation means 

added inconvenience for administrators, or resistance 

to the reallocation of resources from other programs, 
or other political opposition to desegregation from the 

white community. 

If excuses of this sort could justify failure to abolish 

all remnants of the dual system, this Court’s command 

in Green that school officials take ‘‘whatever steps 

might be necessary’’ would be rendered a nullity. Only 

last Term, this Court made it clear that no such nullify- 

ing interpretation was intended ; against all objections 

of cost, inconvenience, impracticality, even ‘‘chaos’— 

objections made not only by school officials but by the 

national administration—it unanimously ordered that 

plans promising an end to the dual system be put into 

effect now, in mid-school-year if that was necessary.  



  

22 

Alexander v. Holmes County Board of Education, 396 
U.S. 19 (1969). 

II. ELIMINATION OF “BLACK SCHOOLS,” WHERE FEA- 
SIBLE. IS REQUIRED AS A REMEDY FOR THE WRONG 

OF OFFICIAL SEGREGATION WHICH PRODUCED 

THOSE SCHOOLS. 

We have not argued that every school with an all- 

black or predominantly black student body represents 

a violation of the equal protection clause. Such an 
argument could be made; there is substantial evidence 

that isolation of black children in schools wherever 

and for whatever reason it occurs, correlates highly 

with inferior education. United States Commission on 

Civil Rights, Racial Isolation in the Public Schools 

202-204 (1967). However, no such substantive constitu- 

tional doctrine need be advanced in order to decide 

these cases according to the rule we have argued for.” 

We deal, in Charlotte and Mobile, not just with any 

concentrations of black children in separate schools, 

but with concentrations surviving from a system 

which segregated these children as part of an official 
policy based on their assumed inferiority. We ask the 

Court to declare, not that the Constitution condemns 
  

14 Compare Carter v. West Feliciana Parish School Board, 396 
U.S. 290, 296 (1970) (Harlan, J., concurring): ‘‘If Department 
recommendations are already available the school districts are to 

bear the burden of demonstrating beyond question, after a hear- 

ing, the unworkability of the proposals ....”’ 

15 “De facto’ racial segregation of the schools has been held 

unconstitutional in several federal cases, among them Hobson Vv. 

Hansen. supra Note 9, and Blocker v. Board of Education, 226 F. 

Supp. 208 (E.D.N.Y. 1964). 

We do not disclaim the arguments put forward in these cases 

and elsewhere that the Constitution condemns adventitious racial 

segregation; we merely point out that no such argument need be 

accepted in order to require the abolition of black schools as part 

of the process of dismantling official segregation. 

 



23 

black schools as such, but that federal courts of equity 

in abolishing the discriminatory dual school system 
must abolish the black schools which continue as a 

remnant of that system. 

Thus it is not necessary in these cases for the Court 

to confront the question of the legal status of black 

schools in states which did not maintain formal stat- 

utory systems of school segregation. It may be that 

some school districts which have not maintained full 

dual systems have nonetheless brought about the exist- 

ence of black schools through official action. In those 

cases, both the principle of Brown I and the remedial 
standards of Green would logically apply. Cf. United 
States v. School District 151 of Cook County, 404 F2d 
1125 (C.A.7, 1968) What we stress here is that the 

abolition of black schools is required as a remedy to 

undo the effects of past unconstitutional diserimina- 
tion. 

The concept of a remedial standard is well illustrated 
by the way in which this Court and the lower federal 

courts have handled the dismantling of another aspect 

of the dual school system, the institution of faculty 

segregation. In United States v. Montgomery County, 
395 U.S. 225 (1969), this Court granted certiorari to 

review a district court decree ordering a school board 

to assign faculty so that the ratio of black to white 

teachers in each school was substantially equal to the 

ratio in the system as a whole. In arguing for rein- 

statement of the district court decree, which had been 

set aside by the court of appeals, the United States 

relied on the same notion of a remedial standard, im- 

posed to measure the achievement of a constitutional 
goal, as we urge here. 

The government pointed out that general directions 

by the courts to ‘‘desegregate’ or ‘‘abolish the dual  



  

  
24 

system’’ had not proved effective ; more precise instrue- 

tions were needed to accomplish the constitutional end. 

““The standard approved . . . by the district court in 

this case is an appropriate and workable means of 

measuring faculty desegregation under judicial super- 

vision.” Brief for U.S., No. 798 October Term 1968, 

at 12. Similarly here, the requirement of no all-black 

student bodies where a workable alternative exists is a 

relatively precise standard by which to measure the 

elimination of the racial identifiability of the schools in 

a dual system, a standard which would be more effec- 

tive and less productive of delay and confusion than the 

vague tests now employed by the Fourth and Fifth 

Circuits. 

In the Montgomery County case, the government also 

argued that the numerical ratio required by the dis- 

trict court was ‘designed as a remedy for past racial 

assignment which, as a result of respondent’s deliberate 

actions, has produced racially identifiable faculties.” 

The government added: ‘There is no suggestion in the 

district court’s opinion, nor is there intended to be any 

in our submission here, that proportional allocation of 

faculty on the basis of race is a constitutional require- 

ment.’ Brief for United States, No. 798 October Term 

1968, at 13. Similarly here, we urge conscious racial 

assignment of students to eliminate the all-black schools 

which were produced by and survive from the system 

of conscious assignment on the basis of race formerly 
employed by the respondents here; we do not rely on 

any constitutional prohibition against all-black schools 
as such.’ 

  

16 Compare Louisiana v. United States, 380 U.S. 145, 154 (1965) : 

““We bear in mind that the court has not only the power 
but the duty to render a decree which will so far as possible 

eliminate the discriminatory effects of the past as well as 

bar like discrimination in the future.’’ 

   



25 

This Court unanimously sustained the government’s 
argument in Montgomery County. The aftermath of 

that decision is instructive. Within months after this 
Court had approved the proportional racial allocation 

rule as ordered by the district court, both the Fourth 

and Fifth Circuit had adopted the same strict rule to 
govern faculty assignment in all desegregating school 

districts under their jurisdictions. Nesbit v. States- 

ville City Board of Education, 418 F.2d 1040 (C.A. 4, 
1969) ; Singleton v. Jackson Municipal Separate School 
District, 419 F.2d 1211, (C.A. 5, 1969). The President 
in his March 24, 1970 statement, giving the Administra- 

tion’s view of existing school law, adopted the same 

rule for nationwide enforcement by the executive 

branch.” In short, as soon as this Court approved a 

simple and easily applied rule, even a very strict one, 

to measure the achievement of a unitary system in the 

area of faculty desegregation, the courts and the execu- 

tive branch united to apply it generally. The result 

has been that the issue of faculty desegregation, once 

as divisive in the schools and time-consuming in the 
courts as the issue of student desegregation is today, 

has virtually disappeared as a source of delay and con- 

fusion in the process of converting to unitary school 

systems throughout the South. 

In our view, adoption of the rule we propose here 

for student desegregation would have much the same 

result in the area of pupil assignment. Southern school 

officials would turn from struggling to maintain the 

greatest degree of pupil segregation which could be 

wrested from the courts to quick and final abolition of 

the dual system and then to their basic job of education. 
  

17 Statement of the President on School Desegregation, March 
24, 1970, at 13.  



  

26 

With the establishment of a relatively simple and easily 

administrable rule, the protests of unhappy white con- 

stituents, now spurred by hopes of success for such 

slogans as ‘‘neighborhood schools” and ‘‘no busing’’ 

could be turned aside by the unanswerable response 

that the courts have finally spoken, the law is now clear, 

the job now finally must be done. 

III. THE COURTS OF APPEALS IN THESE TWO CASES 
IMPERMISSIBLY APPROVED THE CONTINUED EX- 
ISTENCE OF BLACK SCHOOLS ON GROUNDS FALL- 
ING SHORT OF THE UNFEASIBILITY OF DESEGRE- 
GATING THEM. 

In each of these cases, a plan, drawn up by educa- 

tional experts, which would have achieved the desegre- 

gation of the student body of each and every school, 

was submitted to the district court. In each case a 

plan which fell short of achieving this goal was ap- 

proved by the court of appeals. In neither case was 
the plan which would have achieved complete desegre- 

gation shown to be unfeasible. Indeed in the Charlotte 

case, the record made in the district court and the 

court’s findings supported by that record incontra- 

vertibly establish that the complete desegregation plan 

was feasible within any definition of that term. In the 

Mobile case, the complete desegregation plan closely re- 

sembled the plan accepted by the district court in Char- 

lotte, based as it was upon the same technique of limited 
noncontiguous pairing of white and black schools. Only 
the failure of the district court in Mobile to hold a hear- 

ing on the proposed plans prevented the development 

of a record which could have conclusively established 

the feasibility of this plan. There is nothing in the 

record, however, to suggest that the plan is less than 

fully feasible; and in any event, the school board has 

in no way met its burden of proving it impossible to 

   



27 

implement. Cf. Carter v. West Feliciana Parish School 
Board, supra, 396 U.S. at 296 (Harlan, J., concurring). 

The courts of appeals did not purport to find either 
of the complete desegregation plans unfeasible. Rather 
the courts rejected them on other grounds: the Fifth 
Circuit in the Mobile case because the plan went beyond 
““neighborhood”” zoning, the Fourth Circuit in the 
Charlotte case because the plan required an ““unreason- 
able” amount of busing. Neither of these grounds pro- 
vides a constitutionally sufficient excuse for maintain- 
ing all-black schools as remnants of the system of seg- 
regation. 

A. The Mobile Case and the “Neighborhood School Concept”. 

In the Mobile case below, this Fifth Circuit panel 
announced its intention to accept that plan “which 
would go further toward eliminating all Negro or virtu- 
ally all Negro student body schools while at the same 
  

18 The ‘‘neighborhood school’’ rule followed in this case is by 
no means a uniform standard for defining achievement of a 
unitary school system within the Fifth Circuit. In Adams v. 
Mathews, 403 F.2d 181, 188 (1968), that court held: 

“If in a school district there are still all-Negro schools, 
or only a small fraction of Negroes enrolled in white schools, 
or no substantial integration of faculties and school activities 
then, as a matter of law, the existing plan fails to meet 
constitutional standards as established in Green.’’ 

In Henry v. Clarksdale Municipal Separate School District, 409 
F.2d 682 (1969), the Fifth Circuit rejected a geographic zoning 
or ‘‘neighborhood’’ attendance plan for Clarksdale, Miss., because 
it failed to achieve sufficient pupil integration. The court said: 

“A school board’s zoning policy may appear to be neutral 
but in fact tend to retard desegregation because it binds 
pupils to custom-segregated neighborhoods. In this situa- 
tion, the board’s failure to take corrective action amounts 
to the State’s giving official sanction to continue school  



    

28 

time maintaining the neighborhood school concept of 

the school system.’” In other words, it erected the 

maintenance of ‘neighborhood schools’ into an abso- 

lute which overrides the constitutional obligation to 

disestablish the dual school system. 

We submit that the ‘neighborhood school concept’ 

has no such constitutional status. It is rather one 

among several concepts used in this country as a basis 

for assigning students to schools. Whether or not it 

should be adopted by a particular school district is a 

matter of educational policy, to be decided by school 

officials within the constraint of the constitutional re- 

quirement of complete disestablishment of the dual 

school system. That is the proper order of priorities— 

not, as the court below would have it, that courts are 

to meet constitutional requirements within the con- 

straint of a particular educational theory of pupil 

assignment. 

One need look no further than Mobile, Alabama, to 

see that the ‘neighborhood’ system of pupil assign- 

ment is not uniformly in use throughout this country. 

Mobile has never had a neighborhood school system. 

Until very recently, it has had a racial system of assign- 

ment, under which black and white children both rode 

on buses past nearby schools designated for the other 

race on the way to their own ‘black’ or ‘‘white”’ 

school. More recently, under pressure from the courts 
  

segregation . . . .”” 409 F.2d at 689. And see United States 

v. Indianola Municipal Separate School District, 410 F.2d 
626 (1969). 

Only recently, the Fifth Circuit’s second decision in the Clarks- 

dale case reiterated the holding that geographic zoning which 

left all-black schools did not meet constitutional standards. Henry 

v. Clarksdale Municipal Separate School District, No. 29165, 

August 12, 1970 (slip opinion at 3). 

   



29 

to desegregate, Mobile school officials have adopted a 
crazy-quilt of assignment policies, detailed in the Ap- 
pendix to the Brief for Petitioner in No. 436, all de- 
signed to achieve maximum segregation rather than 
contiguity of child’s home to child’s school. 

Alternatives to neighborhood school assignment have 

been adopted for many reasons other than to avoid de- 

segregation. The largest part of the history of rural 
schools in America during this century has been the 
movement from the one-room ‘‘neighborhood’’ school 
to which each child could walk, to the larger consoli- 
dated school which requires a system of bus transpor- 
tation—a movement promoted by the search for better 
education through the economies of scale possible in 
larger schools. Similarly in many of our larger cities, 
the “‘neighborhood concept’ is violated every day as 
thousands of children with special abilities or special 
problems attend far-away schools with specialized pro- 
grams designed to meet their needs. 

This is not to say there are no values in having 
schools close to home. There are of course the values 
of convenience and of minimizing time and money 
spent in transportation. There are the values of link- 
ing the school to a community, and of giving parents 
ready geographical access to their children’s school, 
though these are often exaggerated in present day con- 
ditions.” (In urban areas today, few ‘neighborhood’ 
  

19 To the extent that there are values in having children attend 
school close to home, one of the issues in both the Charlotte and 
the Mobile cases is whether black children have a right to share 
in these values equally with white children. Acceptance of a 
half-way approach to pupil integration has usually meant that 
black children are ‘‘integrated’’ into white schools in white 
neighborhoods, while there is no corresponding transportation of 
white children to black schools in black neighborhoods. See Note 
7, supra, and accompanying text.  



    

30 

schools really serve anything remotely like a real com- 

munity ; and once the school is removed beyond walking 

distance from the home, as it often is even in our cities, 

the distance a parent must drive or take public trans- 

portation to reach his child’s school becomes only a 

matter of degree.) 

The rule which the Fifth Circuit has built upon the 

concept of the neighborhood school does not even have 

the exactness and precision which appears at first 

glance to be its chief virtue. Once this Fifth Circuit 

panel departs from the strict mathematical model of 

the “neighborhood school’”” which it constructed in 

Ellis v. Board of Public Instruction of Orange County, 

423 F.2d 203 (1970)—and as far as we know, that model 

has been applied only in that single case—it becomes 

most unclear exactly what the ‘‘neighborhood school 

concept’’ is. It does not bar the pairing of schools, for 

instance ; the court of appeals ordered schools paired in 

this very case, observing only that the pairings were 

‘well within any reasonable definition of a neighbor- 

hood school system.” 

Ultimately, the ‘neighborhood school’’ rule must be 

rejected because it excuses the continuation of black 

schools in districts with dual systems for reasons short 

of the complete unfeasibility of total desegregation, 

reasons which are too easily and too often used to mask 

opposition to desegregation itself. This Court has in 

the past dealt unequivocally with apparently neutral 

slogans which effectively produce continued segrega- 

tion—with “political impossibility,” Cooper v. Aaron, 

358 U.S. 1 (1968), with “freedom of choice,”’ Green, 

supra, with “administrative chaos,” Alexander, supra. 

«Neighborhood schools” is, in the context of this case, 

merely another of these slogans behind which continued 

   



31 

segregation can take shelter, and should be dealt with 
the same way.* 

B. The Charlotte Case and the “Rule of Reasonableness”. 

The rule laid down by the Fourth Circuit in the 
Charlotte case—that school boards operating dual Sys- 
tems must make ‘‘all reasonable efforts to integrate 
every school” (1277a)—has the single advantage over 
the Fifth Circuit’s “neighborhood school’ rule that 
it does not bar the use of the legitimate and accepted 
technique of noncontiguous or satellite zoning as a tool 
for eliminating the effects of official segregation. In 
every other respect, however, the Fourth Circuit’s ‘“rea- 
sonableness’’ doctrine as applied in this case is a wholly 
unacceptable standard by which to measure compliance 
with the constitutional mandate. 

  

20 In this case, the court of appeals held that the wrong inherent 
in the maintenance of black schools ‘“‘can be further alleviated 
through a majority to minority transfer policy and through the 
functioning of a bi-racial committee.’’ Similarly in the Charlotte 
case, the Fourth Circuit noted factors which would ameliorate the 
existence of black schools: majority to minority transfers, inte- 
grated special classes and out of school activities, and the require- 
ment that each student must at some point in his career attend 
an integrated school. 

These devices, taken by themselves, are all half-way measures, 
so long as black children continue to attend black schools in the 
face of feasible alternatives. In particular, the majority to 
minority transfer device puts upon black children the burden of 
desegregating the schools, whereas the Green case firmly declares 
accomplishment of that task to be the affirmative duty of the 
school board. And the notion that an integrated education for 
part of a child’s career excuses assigning him to an all-black 
school for the remainder is reminiscent of the ‘‘grade a year’ 
and other gradualist approaches to desegregation common during 
the era of ‘‘all deliberate speed.’’  



    

32 

First, the “reasonableness” test is scarcely a stand- 

ard at all, in the sense of a meaningful guide for the 

school officials and distriet courts who must administer 

the process of desegregation. The test allows as an 

excuse for failing to achieve the goal of complete inte- 

gration the ‘‘unreasonableness’’ of the steps needed to 

accomplish the task. ‘Unreasonableness’, as the 

Fourth Circuit sees it, is a conclusory term through 

which judges can express a subjective judgment that 

the difficulties of achieving complete desegregation are 

simply too much for school officials to have to put up 

with. Promulgation of a ‘standard’ like this is a 

guarantee of years of continued litigation and strife, 

with inconsistency even in the end as the promised re- 

sult.” 

Second, the ‘reasonableness’ test impermissibly 

tolerates the perpetuation of remnants of the system of 

segregation which could feasibly be eradicated. This 

case makes clear that for the Fourth Circuit, ‘‘unrea- 

sonable” does not mean unfeasible or unworkable in 

practice. It has never been seriously argued that the 

plan ordered by Judge McMillan could not be put into 

effect consistently with the continued effective opera- 

tion of the Charlotte-Mecklenburg school system—in- 

deed, that system is today operating under that plan. 

  

21 Ag Judge Sobeloff has said, dissenting below : 

“Handed a new litigable issue—the so-called reasonable- 

ness 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 school 

board’s claim that its segregated system is not ‘reasonably’ 

eradicable.”” (1290a). 

   



33 

There is no plausible argument that harm or injury 
to the children invalidates the district court plan, for 

the record contains no evidence of such harm. Under 

the district court’s plan a lower proportion of children 
will be bused to school in Charlotte than are bused in 

the state as a whole. The average length of the bus 
trip for those newly bused under the district court 

plan is less than the average length both for the state 

as a whole, and for the children previously bused within 

the Charlotte-Mecklenburg system. 

The court of appeals’ objections to the district court 

plan seem to be based on its monetary cost alone. That 

objection is insufficient on its face. The operating cost 

of the elementary school busing ordered by the district 
court was found by the court to be about $186,000, this 
in a school system with a projected operating budget 

of about $66 million. The capital cost of the new buses 

1s not precisely known, but all of the evidence indicates 

that it will surely be far below the original estimate of 

$745,000 for the district court’s entire busing plan. As 

the district court found in its hearings after this Court 
granted certiorari, surplus buses owned by the Char- 
lotte-Mecklenburg system, and extra buses available 

through loan from the state, have brought about a situa- 

tion where ‘‘[n]o capital outlay will be needed to sup- 

ply buses for the 1970-71 school year.” Appendix to 
Brief for Petitioner, Br. A23. 

As a general matter, the fact that it costs money to 

desegregate the schools is no excuse for failure to do 
the job. Griffin v. County School Board of Prince Ed- 
ward County, 377 U.S. 218 (1964). Whatever may be 
the outer limits of that principle—whether, in some 

hypothetical case, the monetary cost of desegregating  



    

34 

each school in a system might be so great as to disable 

the operation of that system and hence render achieve- 

ment of the goal ‘‘unfeasible’’—those outer limits are 

not even approached in this case. 

In this case, Judge McMillan has shown that the 

process of desegregation can be completed, and a wholly 

unitary system can be achieved in an urban southern 

school district with substantial residential segregation. 
He has in fact done the job which this Court entrusted 

to the federal district judges of the South in Brown 11, 
and he has done it with patience, sensitivity and skill. 

That good work should not be undone by the court of 

appeals’ vague and constitutionally insufficient ‘‘rule 

of reasonableness.” # 

C. The Question of Busing. 

In the popular press and in the political arena, these 

cases are generally thought to be primarily concerned 

with the question whether the busing of children to 
school is required as part of the process of desegrega- 

tion. As we see the cases, this 1s at most a peripheral 

issue. The process of disestablishing dual school sys- 
tems requires a result—the abolition of the black 

  

22 Judge McMillan made extensive findings to the effect that 
residential segregation in Charlotte was in large part the result 

of state action (297a-298a, 455a-456a, 1229a). These findings 

were summarized and affirmed by the court of appeals (1264a). 
While these findings compound the constitutional wrong of using 
geographic zoning to impose segregated housing patterns on the 

schools, we do not rely upon them here. Our view is rather that 
school officials are required to take all feasible steps, including 

transportation of pupils, to eliminate racially identifiable schools, 

whatever the cause of residential segregation may be. Cf. Brewer 

v. School Board of the City of Norfolk, 397 F.2d 37, 41-42 (C.A. 

41968). 

   



39 

schools which were part of that system. The means to 
be used to accomplish this end are limited solely by 
technical feasibility. Busing of children to schools is 
merely one among many tools which can be used to 
bring about the required result. 

As the Fourth Circuit itself noted in the Charlotte 
case, ‘‘[b]ussing is neither new nor unusual. It has 
been used for years to transport pupils to consolidated 
schools in both racially dual and unitary school sys- 
tems. Figures compiled by the National Education 
Association show that nationally the number of pupils 
bussed increased from 12 million in the 1958-59 school 
year to 17 million a decade later.”” Today about 40 per- 
cent of the nation’s school children ride a bus to school. 
As the Center for Urban Education has put it, “Riding 
the yellow school bus is as much a symbol of American 
education in 1970 as the little red schoolhouse was in 
1900.”” Center for Urban Education, ‘On the Matter 
of Busing” at 1 (Staff Memorandum, February 1970). 

Busing has in the past been used for numerous pur- 

poses, some worthy, though none perhaps so important 

as helping to overcome decades of unconstitutional dis- 
crimination. It has been used to get rural children to 
the larger and more efficient consolidated schools which 
replaced their one-room schoolhouse. In the suburbs, it 
has been used to transport children over large areas to 
the excellent schools which those communities often 
provide. In cities, it has been used to overcome the 
safety and health hazards of children walking to school 
through city streets or taking public transportation. 
In each of these instances busing has cost money and 
has coincided with children attending school far from 
their homes, but not until it was used to achieve de- 
segregation did it become an issue of public controversy.  



    

36 

The school officials and parents who so vigorously 

object to busing for purposes of desegregation raised 

no similar outery in past years against the extensive 

busing required to maintain the system of racially seg- 

regated schools. Today, white parents who remove 

their children from public schools to avoid integration 

typically put the same children on buses for long rides 

to segregated private schools, and pay heavily for the 

privilege. A recent survey conducted by the Southern 

Regional Council indicated that a random sample of 

recently established white private schools bused an 

average of 62 percent of their pupils (as opposed to 49 

percent of public school pupils in eight southern states) 

an average distance of 17.7 miles (as opposed to 10.1 

miles for public school pupils in these states) each day 

to school. Levine and Griffith, The Busing Myth, 

South Today, Vol. 1, No. 10, at 7 (May 1970). 

There is no evidence that busing is in any way harm- 

ful to children. As the district court found in the 

Charlotte case, ““[s]chool bus transportation is safer 

than any other form of transportation for school chil- 

dren.” Appendix to Brief for Petitioners, No. 281, at 

Br. A16. The only study we have found of the psycho- 

logical effects of busing for purposes of desegregation, 

made by a distinguished child psychiatrist, found that 

children being bused in the Boston public school sys- 

tem experienced ‘no significant medical or psychiatric 

‘harm’ or ‘injury’ as a result of the travel or change.’ 

Coles, Northern Children Under Desegregation, 31 

Psychiatry 1, 14 (1968). 

In short, busing of children to school is simply a 

technique which ean be used for good or for ill in the 

administration of a school system. The facts about 

   



37 

busing, its extent and its past acceptance, suggest that 

the recent outery against it is merely the 1970 version 

of the sixteen year old campaign to undermine the 
Brown decision. 

CONCLUSION 

The importance of these cases to the vindication of 

the constitutional rights of black children—rights which 

have been long denied—cannot be overestimated. If 

the decisions of the courts of appeals below are allowed 
to stand, the answer to the question ‘ What has Brown 

accomplished ?”’ will be forever an equivocal one. Much 

of the formal structure and some of the concrete mani- 

festations of the system of segregation will be gone. 

But thousands of black children will spend years of 

their educational careers—most often the earliest, for- 

mative, years—in schools indistinguishable as a prae- 

tical matter from the black schools established by the 

system of segregation. After all the years of turmoil 

and tragedy around the lives of these black children, 
it simply cannot be that they will be forced to settle 
for formal or half-way equality. The system of segre- 

gation and its effects must be abolished—all of it. 

Accordingly, we ask that the judgments of the courts 

of appeals be reversed, and the cases remanded for 

 



38 

further proceedings consistent with principles urged 

in this brief. 

Respectfully submitted, 

MARIAN WRIGHT EDELMAN 

RicEARD B. S0BOL 

MicHAEL B. TRISTER 

1823 Jefferson Place, N.W. 

Washington, D.C. 20036 

WirriaMm L. TAYLOR 
1325 Iris Street, N.W. 

Washington, D.C. 20012 

Attorneys for Amici Curiae 

JoserH L. RAUH, JR. 
1001 Connecticut Ave., N.W. 

Washington, D.C. 20036 

PETER LiIBASSI 

2100 M Street, N.W. 

Washington, D.C. 20036 

VERNON JORDAN 

55 KE. 52nd Street 

New York, N.Y. 10022 

Of Counsel [||040996b6-f3bc-414c-8497-348091e7b01c||]