Memorandum for the United States as Amicus Curiae

     [||9eff5894-9568-4ab2-9a4d-3ad9f1d0fedb||] No.1713 
    

In fhe Supreme Gourt of the Tnited States 

Odiohe rR TERM, 1969 

Ey » 

JAMES HF. SWANN, ET AL., PETITIONERS 
\ v. 

CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, 

ET AL. 

ON PETITION FOR A WRIT OF. CERTIORARI 70 THE UNITED 

STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT 

MEMORANDUM FOR THE UNITED STATES AS AMICUS CURIAE 

ERWIN N. GRISWOLD 

Solicitor General, 

JERRIS LEONARD, 

Assistant Attorney General, 

Department of Justice, 

Washington, D.C. 20530. 

  
  

 



Ju the Supreme Gow of the Tnited States 

OcroBeEr TERM, 1969 

No. 1713 

JAMES E. SWANN, ET AL., PETITIONERS 

v. 

CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, ET AL. 

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED 

STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT 

MEMORANDUM FOR THE UNITED STATES AS AMICUS CURIAE 

INTEREST OF THE UNITED STATES 

The United States has substantial responsibility 

under 42 U.S.C. 2000¢-6, 2000d in the area of school 

desegregation. The outcome of this case will affect 

that enforcement responsibility. The government par- 

ticipated below as amicus curiae at the invitation of 

the court of appeals, and the United States Depart- 

ment of Health, Education and Welfare 1s now pre- 

paring desegregation plans for Charlotte-Mecklenburg 

as recommended by the court of appeals. 

(1) 

389-264—T70  



  

2 

STATEMENT 

The school system here involved comprises the 

urban area of Charlotte, North Carolina, as well as 

the more rural Mecklenburg County. The system 

serves approximately 82,500 students, of whom about 

23,200 are black and 59,300 are white (123a-128a), at- 

tending 106 schools. This school district has been in de- 

segregation litigation since 1965. 

The issue raised by the plaintiffs’ petition relates 

primarily to nine elementary schools attended by 

about one-half of the black elementary students, who 

reside in the urban area in the northwest quadrant of 

Charlotte. The plan proposed in the district court by 

the school board, while fully desegregating some other 

all-Negro schools, would have resulted in virtually 

all-Negro student bodies in these nine schools. That 

plan, relying solely on geographic zoning and based 

on the premise that no Negro school should be deseg- 

regated unless it could be at least 60 percent white, 

was rejected by the district court—a decision approved 

by the Fourth Circuit. The district court approved 

a plan, drawn by an educational expert recommended 

by the plaintiffs, based on the premise that there 

should be no Negro-majority schools in the entire 

system. The plan used the technique of noncontiguous 

pairing or “satellite” zoning so that black schools 

in northwest Charlotte would be paired with predom- 

inately white schools in suburban areas. 

   



3 

The court of appeals affirmed as to the high schools 

and junior high schools and disapproved the elemen- 

tary school plan. It held: 

first, that not every school in a unitary school 

system need be integrated ; second, nevertheless, 

school boards must use all reasonable means to 

integrate the schools in their jurisdiction; and 

third, if black residential areas are so large that 

not all schools can be integrated by using 

reasonable means, school boards must take fur- 

ther steps to assure that pupils are not ex- 

cluded from integrated schools on the basis of 

race. * * % 11805] 

The court approved such techniques for achieving 

desegregation as rezoning, “pairing, grouping, clus- 

tering, and satellite zoning” (198a) but held that 

the elementary school plan required by the district court 

was beyond constitution requirements and inappropri- 

ate in the circumstances of this case. 

Accordingly, inasmuch as implementation of all 

parts of the district court-approved plan had been 

stayed (135a, 177a) and the 1969-1970 school year was 

at an end, the court of appeals remanded the case with 

instructions to require, on an expedited schedule, the 

formulation of additional alternative plans for ele- 

mentary schools. On remand, the Fourth Circuit sug- 

gested, “the district court should direct the school 

board to consult experts from the Office of Education 

of the Department of Health, Education, and Welfare  



  

4 

and to explore every method of desegregation, including 

rezoning with or without satellites, pairing, group- 

ing, and school consolidation” (199a). The board is to 

submit a new plan by June 30, 1970 (200a). 

DISCUSSION 

While we believe that the court of appeals was 

correct in its formulation of the school board’s obli- 

gation, we agree with the petitioners that this case pre- 

sents issues of national importance requiring resolu- 

tion by this Court. But we think that, in the posture 

of this case, determination of the merits by this Court 

is not appropriate at this time. 

As the court of appeals noted, ‘‘Similar segrega- 

tion occurs in many other cities throughout the na- 

tion, and constitutional principles dealing with it 

should be applied nationally’ (188a). The question 

of the appropriate remedial standard for school dis- 

tricts covering large urban areas is now being pre- 

sented to a number of appellate courts. Cases have 

recently been decided or are now pending involving 

Orlando and Tampa, Florida; Mobile, Alabama; 

Houston, Texas; Jackson, Mississippi; Little Rock, 

Arkansas; Oklahoma City and Tulsa, Oklahoma ; Nor- 

folk, Virginia; Alexandria, Louisiana; Memphis, 

Tennessee; and Cincinnati, Ohio, among others. Ap- 

pellate ‘decisions to date have not uniformly adopted 

a single remedial standard; and the issues as framed 

by the petitioners would ask this Court to address 

some of the questions posed by Mr. Chief Justice Burger 

   



5 

concurring in Northcross Vv. Board of Education, 397 

U.S. 232, 227. 

The issue here focuses on the appropriate remedies 

for school segregation in the context of an urban 

school district characterized by racial residential seg- 

regation. In view of the large number of students 

who would continue to attend virtually all-Negro 

schools under the school board’s plan and the board’s 

quite artificial limitations on that plan, namely, that 

no technique but rezoning would be used and that no 

integrated school should be less than 60 percent 

white, both of the courts below held that the school 

board’s plan was not an adequate remedy. We fully 

agree with that conclusion. 

The court of appeals declined, however, to endorse 

as to elementary schools the alternative plan adopted 

by the district court. To be sure, district courts have 

wide discretion in formulating appropriate remedies 

in school-desegregation cases. See, e.g., Brown V. 

Board of Education, 349 U.S. 294, 299-300; Umted 

States v. Montgomery County Board of Education, 395 

U.S. 225; Green Vv. County School Board, 391 U.S. 

430, 438 n. 4, 439, 442 n. 6; Griffin v. School Board, 

377 U.S. 218, 232-234; cf. Carier v. Jury Commission, 

396 U.S. 320, 336-337; Turner Vv. Fouche, 396 

U.S. 346, 355. Indeed, this Court has authorized 

requiring implementation of educator-devised de- 

segregation plans although recognizing that the par- 

ticular plans were not the exclusive means of satis-  



  

6 

fying constitutional mandates. Alexander v. Holmes 

County Board of Education, 396 U.S.19; Carterv. West 

Feliciana Parish School Board, 396 U.S. 290. But 

holding that, “if a school board makes every reasonable 

effort to integrate the pupils under its control, 

an intractable remnant of segregation * * * should 

not void an otherwise exemplary plan for the creation 

of a unitary school system” (190a), the Fourth Circuit, 

in effect, remanded the case to determine whether, in 

view of IEW alternatives,’ remaining segregation 

could be eliminated by a more limited use of the available 

techniques. In its remand, the court of appeals did not 

direct, as had the district court (116a), that all schools 

must be majority white. For that reason, the plaintiffs 

seek review by this Court. 

Yet, because of the importance of the question, we 

think the record in this case should be supplemented 

before this Court decides the issue. New plans will be 

filed in the district court by June 30, 1970. It can be 

anticipated that those submissions will be the subject 

of an evidentiary hearing held on an expedited basis 

and will be accorded full consideration by the district 

court and perhaps also the court of appeals. Those 

plans, in conjunction with the plans already in the 

record, will no doubt reflect the full range of possibili- 

ties available to desegregate this school district. Ae- 

1 Ct. e.g., Alexander v. Holmes County Board of Education, 
supra; Carter v. West Feliciana Parish School Board, supra, 
at 291-293 (Harlan, J., concurring). Singleton v. Jackson Munic- 
ipal Separate School District, 419 F. 2d 1211 (C.A. 5) (en banc) 
(per curiam) ; Clark v. Board of Education of the Little Rock 
School District, No. 19,795 (C.A. 8, May 13,1970) (en banc). 

   



7 

cordingly, the plans may provide the indispensable 

context in which to review the Fourth Circuit’s rule 

that “school boards must use all reasonable means to 

integrate the schools in their jurisdiction” (189a). It 

would seem inadvisable to resolve the issues of this sig- 

nificant case only in the abstract and without the benefit 

of a complete record (cf. Northeross v. Board of Educa- 

tion, supra), and we, therefore, suggest that plenary 

consideration of the merits of the case by this Court 

would be premature at this time. 

Although we believe, as previously explained, that 

the court of appeals’ order remanding the case for fur- 

ther proceedings in conformity with its opinion was 

proper, we recognize that the district court’s decree 

constituted one means of accomplishing a unitary 

school system in the respondent district. Conse- 

quently, in accordance with this Court’s opinion in 

Alexander v. Holmes County Board of Education, 

supra, that decree might well remain in effect until 

replaced by a modified decree also establishing a uni- 

tary system, even though there appears to be ample 

time for the formulation of such a modified decree 

prior to the re-opening of school. 

We suggest, therefore, that the petition for a writ 

of certiorari should be granted, and that the judgment 

of the court of appeals should be left undisturbed 

insofar as it remands the case to the district court 

for further proceedings but that the district court’s 

prior judgment should remain in effect pending those 

proceedings. In the alternative, if this Court should de- 

cide to grant plenary review at this time, we suggest  



8 

that it direct the filing with the Clerk of this Court of 

all plans, pleadings, proceedings, findings of fact, and 

conclusions of law from the district court. 

Respectfully submitted. 
HRwIN N. GRISWOLD, 

Solicitor General. 
JERRIS LLEONARD, 

Assistant Attorney General. 
June 1970. 

U.S. GOVERNMENT PRINTING OFFICE: 1970 [||9eff5894-9568-4ab2-9a4d-3ad9f1d0fedb||]