North Carolina State Board of Education v. Swann Brief for Appellees

    Isr th e

CCmtrt nf %  States
O ctober T erm , 1970 

No. 498

N orth  Carolina. S tate B oard op E ducation , et al.,
Appellants,

J am es E . S w a n n , et al.,
Appellees.

o n  a p p e a l  p r o m  t h e  u n it e d  s t a t e s  d is t r ic t  c o u r t

POR THE WESTERN DISTRICT OP NORTH CAROLINA

BRIEF FOR APPELLEES

J ack  G reenberg 
J ames M. N abrit , III 
N orman  J . C h a c h k in  

10 Columbus Circle 
New York, N. Y. 10019

J . L eV onne  C hambers 
A dam  S tein
C ham bers , S te in , F erguson & F an n in g  

216 West Tenth Street 
Charlotte, N. C. 28202

C. O. P earson
2031/2 East Chapel Hill Street 
Durham, N. C. 27702

A n t h o n y  G. A msterdam
Stanford University Law School 
Stanford, Calif. 94305

Attorneys for Appellees



Opinions Below 

Jurisdiction .....

I N D E X

PAGE

1 

1

Questions Presented ..........................................................  2

Statement ........ ............................-........................................ 3

Introduction ........     3

Proceedings during 1969-70 before a Single Dis­
trict Judge ..................................................................  4

Obstruction of the District Court Orders; Conven­
ing of Three-Judge Court ....    7

Some Facts on Student Transportation ................. 12

Summary of Argument..............................................  17

A rgu m en t

I. The Court Below Correctly Held that a 
Portion of 1ST.C. Gen. Stat. §115-176.1, Known 
as the Anti-Busing Law Is Unconstitutional 
and in Violation of the Equal Protection 
Clause and the Supremacy Clause of the Con­
stitution of the United States ....................... 20

A. Introduction— The Provisions of the
Statute ..........................................................  20

B. The statute unconstitutionally interferes 
with the school board’s affirmative duty
to dismantle the dual system.....................  26



11

C. The Appellants’ Argument Supporting
the Statute Rests on a rejected view that 
there is no affirmative duty to desegre­
gate the schools ..........................................  30

D. Additionally §115-176.1 is unconstitu­
tional because it violates the principles 
stated in Hunter v. Erickson, 393 U.S.
385 (1969) and also the doctrine of 
Reitmcm v. Mulkey, 387 TJ.S. 369 (1967). 33

E. The Court Below correctly Concluded 
that §115-176.1 also violates the Suprem­
acy Clause of Article V I of the Consti­

PAGE

tution .........................................................  36

II. The Appellants Other Objections to the
Judgment Below Are Also Insubstantial .... 40

A. The motions to dismiss were properly
denied .............     40

B. The District Court was empowered to 
stay State Court proceedings to protect
or effectuate its judgments ......................... 41

C. The Civil Rights Act of 1964 does not
support appellants’ argument ..................... 42

III. The Court Has No Jurisdiction of the Appeal 
Under the Doctrine of Bailey v. Patterson,
369 U.S. 31 ....................................   42

Conclusion 44



B rief  A ppendix  A —

Notification and Request for Designation of Three- 
Judge Court with attached Exhibits D, E, F, and G 
(filed February 20, 1970) .............................................  la

Exhibit A —
Opinion and Order of December 1, 1969 
[omitted in printing, see Appendix in No. 281, 
p. 698a] ..................................................................  5a

Exhibit B—
Opinion and Order of February 5, 1970 
[omitted in printing, see Appendix in No. 281, 
p. 819a] ..................................................................  5a

Exhibit C—
Order dated December 2, 1969 [omitted in 
printing, see Appendix in No. 281, p. 717a] .... 5a

Exhibit D—
Complaint, Amended Complaint and two 
Orders of Superior Court in Harris v.
S elf ...................................................... 6a, 14a, 19a, 21a

Exhibit E—
Statement by Governor Scott ............................. 23a

Exhibit F—
Letter by Governor S cott................................... 26a

Exhibit G—
Statement by Dr. Craig Phillips....................... 27a

B rief A ppendix  B—

Opinion and Order of Three-Judge District Court in 
Alabama, v. United States, et al., S.D. Ala., No. 
5935-70-P, June 26, 1970 ................................................  29a

Order of Dismissal..............................................................  39a

I l l

PAGE



IV

Table of Cases:

Alabama v. United States, ------  F. Supp. ------  (S.D.
Ala. Civ. No. 5935-70-P, June 26, 1970) ......... 30, 39, 43

Alexander v. Holmes County Board of Education, 396 
U.S. 19 (1969) ..................................................................  43

Bailey v. Patterson, 369 U.S. 31 (1962) ...........2,11,19,43
Bivins v. Bibb County Board of Education (M.D. Ga.,

No. 1926, May 22, 1970) ........ ;.......................................  39
Briggs v. Elliott, 132 F. Supp. 776 (E.D. S.C. 1955) .... 30 
Brooks v. Beto, 366 F.2d 1 (5th Cir. 1966, en banc),

cert, denied, 386 U.S. 975 (1957) .........................18, 32, 33
Brown v. Board of Education, 347 U.S. 483 (1954)

2, 26, 28, 30, 35, 36,41 
Brown v. Board of Education, 349 U.S. 294 (1955) ....26, 29 
Brown v. South Carolina State Board of Education,

296 F. Supp. 199 (D. S.C. 1968), judgment affirmed,
393 U.S. 222 (1968) ........................................................  37

Bryant v. State Board of Assessment, 293 F. Supp.
1379 (E.D. N.C. 1968) ....................................................  41

Bush v. Orleans Parish School Board, 187 F. Supp. 42 
(E.D. La. 1960), stay denied, 364 U.S. 803, judgment 
affirmed, Orleans Parish School Board v. Bush, 365
U.S. 569 (1961) ............. .......................... .............. 19,36,42

Bush v. Orleans Parish School Board, 188 F. Supp. 916 
(E.D. La. 1960), stay denied, sub nom. Louisiana v. 
United States, 364 U.S. 500 (1960), judgment af­
firmed,, 365 U.S. 569 (1961) .................................. 18, 36, 38

Bush v. Orleans Parish School Board, 190 F. Supp. 861 
(E.D. La. 1960), judgment affirmed, New Orleans
v. Bush, 366 U.S. 212 (1961) .................. .....................  36

Bush v. Orleans Parish School Board, 191 F. Supp. 871 
(E.D. La. 1961), judgment affirmed sub nom. Legis­
lature of Louisiana v. United States, 367 U.S. 907 
(1961) ...............................................................................  36

PAGE



V

Bush v. Orleans Parish School Board, 194 F, Supp. 182 
(E.D. La. 1961), judgment affirmed sub nom. Tug- 
well v. Bush, 367 U.S. 907 (1961) .......................... .......  36

Carter v. West Feliciana Parish School Board, 396 TJ.S.
290 (1970) ..................................................................... 44

Cooper v. Aaron, 358 U.S. 1 (1958) ........................ ..... 36, 41

Denny v. Bush, 367 TJ.S. 908 (1961) ....... .... ............. . 36
Dowell v. Board of Education of the Oklahoma City

Public Schools, 396 TJ.S. 269 (1969) ...........................  43
Dowell v. Board of Education of the Oklahoma City 

Public Schools, 244 F. Supp. 971 (W.D. Okla. 1965), 
affirmed, 375 F.2d 158 (10th Cir. 1967), cert, denied,
387 U.S. 931 (1967) ........................................................  32

Ex parte Poresky, 290 TJ.S. 30 (1933) __ _______ _____  43

Faubus v. United States, 254 F.2d 797 (8th Cir. 1958), 
cert, denied, 358 U.S. 829 ...... .......... .................... ........  40

Godwin v. Johnston County Board of Education, 301
F. Supp. 339 (E.D. N.C. 1969) ........................ ....... . 40

Green v. County School Board of New Kent County, 391
U.S. 430 (1968) ____________ 2,18,19,26, 27, 28, 29, 30, 43

Gremillion v. United States, 368 U.S. 11 (1961) ........... 36

Hall v. St. Helena Parish School Board, 197 F. Supp.
649 (E.D. La. 1961), judgment affirmed, 368 U.S. 515
(1961) ............................................................................ . 37

Harris v. S e lf ............................................................. 3, 7, 25, 41
Harvest v. Board of Public Instruction of Manatee

County, 312 F. Supp. 269 (M.D. Fla. 1970) ____ ____ 40
Hunter v. Erickson, 393 U.S. 385 (1969) ...........2,18, 33, 34

PAGE

In the Matter of Peterson, 253 U.S. 300 (1920) 41



VI

Katzenbaeh v. Morgan, 384 U.S. 641 (1966) ................... 42
Keyes v. School Dist. No. 1, Denver, Colo., 313 F. Supp.

61 (D. Colo. 1970) ..... ....... .......................... ....... ..... . 35

Lee v. Macon County Board of Education, M.D. Ala.
Civ. No. 604-E, March 12, 1970, March 16, 1970,
March 23, 1970 ................................................................  39

Lee v. Macon County Board of Education, 267 F. Supp.
458 (M.D. Ala. 1967), affirmed sub nom. Wallace v.
United States, 389 U.S. 215 (1967) ......... ................. 36,40

Lee v. Nyquist, ------ F. Supp.-------- (W.D. N.Y. Civil
1970-9, Oct. 1, 1970) ................. ....................... ......18,33,35

Louisiana Education Commission for Needy Children 
v. U.S. District Court, 390 U.S. 939 (1968) ________  37

Marbury v. Madison (US) 1 Cranch 137 (1803) ........... 40
Meredith v. Fair, 328 F.2d 586 (5th Cir. 1962) ........... 40, 42
Mitchell v. Donovan, 398 U.S. 427 (1970) ............ ..........  11
Moore v. Charlotte-Mecklenburg Board of Education,

312 F. Supp. 503 (W.D. N.C. 1970) ......... ................ ...1,11
Moore v. Charlotte-Mecklenburg Board of Education,

No. 444, O.T. 1970 ____________ _________________ _ 4

Poindexter v. Louisiana Financial Assistance Commis­
sion, 275 F. Supp. 833 (E.D. La, 1967), judgment
affirmed 389 U.S. 571 (1968) ................. .......................  37

Poindexter v. Louisiana Financial Assistance Commis­
sion, 296 F. Supp. 686 (E.D. La. 1968), judgment 
affirmed, sub nom. Louisiana Education Commission 
for Needy Children v. Poindexter, 393 U.S. 17 (1968) 37

Railway Mail Association v. Corsi, 326 U.S. 88 (1945) 31

PAGE

Reitman v. Mulkey, 387 U.S. 369 (1967) ........... 2,18, 33, 35
Rockefeller v. Catholic Medical Center, 397 U.S. 820 

(1970).................................................................................  11



V l l

PAGE

Shapiro v. Thompson, 394 U.S. 618 (1969) ...................  42
Sparrow v. Gill, 304 F. Supp. 86 (W.D. N.C. 1969) .....  13
Sterling v. Constantin, 287 U.S. 378 (1932) ................ . 40
Swann v. Charlotte-Meeklenburg Board of Education,

No. 281, O.T. 1970 ........................................ .................  3, 4
Swann v. Charlotte- Mecklenburg Board of Education,

243 F. Supp. 667 (W.D. N.C. 1965), affirmed, 369 
F.2d 29 (4th Cir. 1966); 300 F. Supp. 1358 (1969);
300 F. Supp. 1381 (1969); 306 F. Supp. 1291 (1969);
306 F. Supp. 1299 (1969) ; 306 F. Supp. 1301 (1969);
306 F. Supp. 1306 (1969); 311 F. Supp. 265 (1970) 5

Swann v. Charlotte-Meeklenburg Board of Education,
312 F. Supp. 503 (W.D. N.C. 1970) ..........................  1

Swift & Co. v. Wickman, 382 U.S. I l l  (1965) .............. 19, 43

Thomason v. Cooper, 254 F.2d 808 (8th Cir. 1958) ...... 42
Turner v. Memphis, 369 U.S. 350 (1962) ................... 43

United States v. Board of Public Instruction of Polk 
County, 395 F.2d 66 (5th Cir. 1968) ................ .....  32

United States v. Jefferson County Board of Education,
372 F.2d 836 (5th Cir. 1966), aff’d en banc, 380 F.2d 
385 (5th Cir. 1967), cert, denied, sub nom. Caddo 
Parish School Board v. United States, 389 U.S. 840
(1967) .......................... - ........... .................................. ...31, 32

United States v. Montgomery County Board of Educa­
tion, 395 U.S. 225 (1969) .......................... ...... .....18,31,32

United States v. Peters (US) 5 Cranch 115 (1809) ....18,38 
United States v. Wallace, 222 F. Supp. 485 (M.D. Ala. 

1963) ........................ ................... ........ ....................... . 40

Walker v. County School Board of Brunswick County,
413 F.2d 53 (4th Cir. 1969) ....................................... . 30

Wanner v. County School Board of Arlington County,
357 F.2d 452 (4th Cir. 1966) ...................................... 18, 32



V l l l

Youngblood v. Board of Pubic Instruction of Bay

PAGE

County, Fla., ------  F.2d ------  (5th Cir., No. 29369,
July 24, 1970) ..................... ........... .............................. -  32

Statutes:

28 U.S.C. §1253 ................................ ........ .................... 1,19, 43

28 U.S.C. §2281 ............ ............................. ............ ..... 6,11,12

28 U.S.C. §2283 ............. ...... ...........................................-19, 42

28 U.S.C. §2284 ................................ ................................ . 6

New York Education Law, Section 3201(2) (McKinney
1970) .......................... .............. ...... ................... ....... .....  33

N.C. Gen. Stat. §115-176.1 .................. 3, 8,11,17, 20, 22, 25,
26, 27, 29, 30, 33, 34, 

35, 36, 38, 43, 44

Other Authorities:

1A Moore’s Federal Practice ............. ...... ............ .........  42

NEA, National Commission on Safety Education, 
1968-1969 Statistics on Pupil Transportation, 1970 .... 12



I n  th e

i>ti|tr£OTr (Emtrt of the Bttitpfi Stairs
O ctober T erm , 1970 

No. 498

N orth C arolina S tate B oard of E ducation , et al.,
Appellants,

—v.-

J am es  E . S w a n n , et al.,
Appellees.

ON APPEAL PROM THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF NORTH CAROLINA

BRIEF FOR APPELLEES

Opinions Below

The opinion of the three-judge district court is reported 
as Swann v. Charlotte-Meclclenburg Board of Education 
(also Moore v. Charlotte-MecMenburg Board of Educa­
tion), 312 F. Supp. 503 (W.D. N.C. 1970).

Jurisdiction

Appellees submit that the Court does not have jurisdic­
tion of a direct appeal pursuant to 28 U.S.C. §1253 because 
the ease is not a “ civil action, suit or proceeding required 
by any Act of Congress to be heard and determined bv a 
district court of three judges” (emphasis added). Appel­
lees’ argument in support of the contention that a three- 
judge court was not required appears infra in Argument 
III.



2

Questions Presented

1. Whether the judgment of the court below that a part 
of the North Carolina anti-busing law is unconstitutional 
should be affirmed:

(a) on the ground that it violates the equal protection 
clause by interfering with school boards’ affirmative duty 
under Brown v. Board of Education, 347 U.S. 483 (1954),
and Green v. County School Board of New Kent County. 
391 U.S. 430 (1968), to eliminate dual school systems;

(b) on the ground that it effects a racial classification 
which violates the principles stated in Hunter v. Erickson. 
393 U.S. 385 (1969), and in Reitman v. Midkey, 387 U.S. 
369 (1967);

(c) on the ground that it violates the Supremacy Clause 
by seeking to overturn the desegregation decisions of the 
federal courts and in particular the decisions of the fed­
eral district court in the Charlotte-Mecklenburg case.

2. Whether the court below properly (a) denied motions 
to dismiss various defendants and (b) restrained parties 
from seeking to enforce the anti-busing law by state court 
injunction proceedings.

3. Whether the appeal should be dismissed on the ground 
that no direct appeal is permitted inasmuch as the statute 
involved was so clearly unconstitutional that no three- 
judge court was required under the doctrine of Bailey v. 
Patterson, 369 U.S. 31 (1962).



3

Statement

Introduction

This case is here on direct appeal to review a judgment 
of a three-judge district court which held that a portion 
of N.C. Gen. Stat. §115-176.1, known as the anti-bussing 
law, was unconstitutional because it interfered with the 
affirmative duty of local school boards under the Four­
teenth Amendment to desegregate racially segregated 
public schools and also violated the Supremacy Clause of 
Article VI. The court enjoined all parties “ from enforc­
ing, or seeking the enforcement of” the unconstitutional 
portion of the statute. The proceeding in the three-judge 
court was an ancillary proceeding connected with the school 
desegregation case involving Charlotte-Meeklenburg which 
is also now pending here as Swann v. Charlotte-Mechlen- 
burg Board of Education, O.T. 1970, No. 281, certiorari 
granted June 29, 1970.

This appeal was taken by the North Carolina State 
Board of Education and four state officials.1 The Charlotte- 
Meeklenburg Board of Education also filed a notice of 
appeal from the same order, but has not filed a jurisdic­
tional statement or docketed its own appeal. Instead, the 
local school board has filed a motion in this Court to join 
in the appeal of the state board of education, pursuant to 
this Court’s Rule 46. 1

1 Appellants herein include the State Superintendent of Public 
Instruction, the Governor of North Carolina, the Controller of the 
State Board of Education, and a judge of the Superior Court of 
Mecklenburg County who issued an order allegedly interfering with 
the federal court desegregation orders. No notice of appeal was 
filed on behalf of the .additional parties defendant Tom B. Harris, 
et al., the plaintiffs in the state court proceeding of Harris v. Self; 
nor was notice of appeal filed on behalf of James C. Carson, al­
though the state argues in its brief that it is prosecuting the appeal 
on his behalf (Brief of the Attorney General of North Carolina, 
pp. 10-12. As to the notice of appeal, however, see A. 107-108.)



4

Another appeal from the same judgment is also pending 
here as No. 444, O.T. 1970, sub nom. Moore v. Charlotte- 
Mecklenburg Board of Education. The Moore case was 
consolidated for hearing with the instant case in the three- 
judge district court. It began as a suit in a state court 
by parents seeking to enjoin the Charlotte-Mecklenburg 
Board of Education from carrying out the desegregation 
orders issued by the federal district court in Swann v. 
Charlotte-Mecklenburg Board of Education, No. 281, O.T. 
1970, cert, granted June 29, 1970. The Negro plaintiffs in 
the Swann case were not named as parties in the Moore 
case; only the school board is named as a defendant below 
and an appellee in this Court. The school board removed 
the Moore case to the United States District Court, but 
both below and here has agreed with and supported the 
argument of the plaintiffs-appellants Moore, et al. that 
the North Carolina anti-bussing law is valid. The Negro 
plaintiffs Swann, et al. moved in the district court for an 
order adding the plaintiffs in the Moore case as parties- 
defendants and enjoining them from interfering with the 
district court’s desegregation orders. The order issued be­
low, as noted above, enjoins all parties in both cases, 
including Moore, et al., from enforcing or seeking enforce­
ment of the unconstitutional portion of the anti-bussing 
statute.

Proceedings during 1969-70 before a Single District Judge

The school desegregation case brought by Negro pupils 
and parents against the Charlotte-Mecklenburg Board of 
Education was commenced in 1965 and there has been ex­
tensive litigation ever since which has culminated in the 
Swann case now pending in this Court. A  full statement 
of the history of the proceedings from 1965 to date is 
contained in Petitioners’ Brief in Swann, No. 281, O.T.



0

1970.2 The ease has resulted in numerous reported deci­
sions which are cited in the note below.3

On April 23, 1969, after a plenary hearing, the district 
judge rendered a decision and order finding that the school 
system was still unlawfully segregated and directing 
that defendants file a plan for complete desegregation of 
the system {Swann, supra, 300 F. Supp. 1358; App. No. 
281, p. 285a-323a). The court specifically directed that the 
school board consider altering attendance areas, pairing or 
consolidation of schools, transportation or bussing of stu­
dents and any other method which would effectuate a 
racially unitary system (App. No. 281, p. 315a-316a). Exten­
sive litigation ensued as the board submitted a series of 
proposals and the court rejected them as unsatisfactory to 
disestablish the segregated system (App. No. 281, pp. 448a- 
458a; 579a-592a, 698a-716a, 819a-839a). In the midst of this 
litigation about the remedy to implement the April 23 deci­
sion, the North Carolina legislature enacted the anti-bussing 
bill proposed by a member of the Mecklenburg delegation 
(A.63-93). The measure which was ratified July 2, 1969, 
included the following two sentences (later held unconsti­
tutional) :

No student shall be assigned or compelled to attend
any school on account of race, creed, color or national

2 The parties in this case, No. 498, have stipulated that the record 
and printed appendix in No. 281, O.T. 1970 and No. 349, O.T. 1970 
constitute and shall be used as a part of the record in this case. 
This is consistent with the view of the case taken by the court below. 
Citations to the Appendix in Nos. 281 and 444 are indicated. The 
appendix in this case is cited as “A. •—

3 See, e.g., Swann v. Charlotte-Mecklenburg Board of Education, 
243 F. Supp. 667 (W.D. N.C. 1965), affirmed, 369 F.2d 29 (4th 
Cir. 1966) ; 300 F. Supp. 1358 (1969) ; 300 F. Supp. 1381 (1969); 
306 F. Supp. 1291 (1969); 306 F. Supp. 1299 (1969) ; 306 F. Supp. 
1301 (1969); 306 F. Supp. 1306 (1969); 311 F. Supp. 265 (1970).



6

origin, or for the purpose of creating a balance or 
ratio of race, religion or national origin. Involuntary 
bussing of students in contravention of this Article is 
prohibited, and public funds shall not be used for any 
such bussing (A.91).

Plaintiffs in the Swann case promptly obtained leave to 
file a supplemental complaint which sought injunctive and 
declaratory relief against the above-quoted portion of the 
anti-bussing law; they asked that a three-judge court be 
convened pursuant to 28 U.S.C. §§2281 and 2284 (App. 
No. 281, pp. 460a-479a). However, no three-judge court 
was convened at that time and the court took no action 
on the requests for relief because the school board thought 
that the anti-bussing law did not interfere with the school 
board’s proposed plan to bus about 4,000 black children 
to white suburban schools (306 F. Supp. at 1295; App. No. 
281, p. 585a).

After further hearings to consider the board’s further 
proposals during the fall of 1969 and the operation of the 
interim, plan (which involved bussing black children to 
formerly white schools), the district court finally directed 
that a plan be prepared by the court’s expert consultant 
(App. No. 281, p. 698a-717a). The court consultant’s plan 
was ordered into effect in an order entered February 5, 
1970, reported at 311 F. Supp. 265 (App. No. 281, 819a- 
839a). The February 5 order provides for the alteration of 
some school attendance areas, the creation of certain “ satel­
lite” or non-contiguous zones from which pupils would be 
transported to school, the pairing and clustering of certain 
schools with the alteration of grade structures, and trans­
portation for pupils who live more than walking distance 
(as determined by the board) from the school to which 
they are assigned. The pairing and clustering of 10 black



7

and 24 white elementary schools will result in pupils of 
both races being transported to schools wdiich were for­
merly segregated. The district court made extensive sup­
plemental findings about the amount of transportation re­
quired and its relation to the large school bus transportation 
system which was already in operation in the community 
(App. No. 281, p. 1198a-1220a).

Obstruction of the District Court Orders; Convening of 
Three-Judge Court

Following the order of February 5, 1970, numerous citi­
zens, under the banner of “Concerned Parents Association,” 
held meetings to protest the order, vowing to defy, delay, 
obstruct and in any way prevent its implementation. On 
January 30, 1970, they filed a proceeding in the Mecklen­
burg County Superior Court (Harris v. Self) and obtained 
an ex parte temporary restraining order, purportedly pre­
venting the superintendent from paying the fees and ex­
penses of the court consultant as directed on December 2,
1969. (Appendix A, infra 6a). They filed an amended com­
plaint on February 12, 1970, in the Mecklenburg County 
Superior Court and obtained an amended temporary re­
straining order which enjoined the Charlotte-Mecklen- 
burg Board of Education from expending any money for 
the purpose of purchasing or renting any motor vehicle 
or operating or maintaining such for the purpose of in­
voluntarily transporting students in the Charlotte-Mecklen- 
burg school system from one school to another and from 
one district to another (Appendix A, infra 19a). The order 
entered by the Mecklenburg Superior Court on January 30,
1970, was modified to permit payment of the court con­
sultant on approval of the Board of Education (Appendix 
A, infra, 21a).

On February 11, 1970, Governor Robert W. Scott issued 
a public statement to the effect that North Carolina General



8

Statute §115-176.1 prohibited the involuntary bussing of 
students, that he had taken an oath to uphold the laws of 
the State of North Carolina, and that he was directing all 
officials to enforce this statute (Appendix A, infra 23a). 
On February 12, 1970, Governor Scott instructed the Di­
rector of the Department of Administration that “use of 
public funds for providing bus transportation shall be 
strictly in accordance with the appropriations made by the 
1969 General Assembly, and for no other purpose. No 
authorization will be given for use of any other funds 
to provide bussing to achieve school attendance for the 
purpose of creating a balance or ratio, religion or national 
origins” (sic.) (Appendix A, infra 26a). Copies of the 
letter were forwarded to Dr. A. Craig Phillips, the Super­
intendent of Public Instruction; Dr. Dallas Herring, Chair­
man of the State Board of Education; Mr. A. C. Davis, 
the Controller of the State Board of Education; and Mr. 
Tom White, Chairman of the State Advisory Budget Com­
mission. Shortly thereafter, Dr. A. Craig Phillips issued 
a similar statement and further advised that he was op­
posed to bussing (Appendix A, infra 27a). On February 
23, 1970, he wrote to Dr. William S. Self, Superintendent 
of the Charlotte-Mecklenburg Schools and advised, “ No 
additional State funds will be allocated to the Charlotte- 
Mecklenburg Board of Education to provide bussing of 
students for the purpose of creating a balance or ratio of 
students in the schools.” On the same date, Mr. A. C. 
Davis directed a memorandum to the superintendent of 
each local school system in the State advising that the 
General Assembly had appropriated funds for the opera­
tion of 9,510 buses during the 1969-70 school year and 9,635 
buses during the 1970-71 school year. The memorandum 
advised that approximately 9,443 buses were presently in 
use and that, “ The appropriation does not include funds 
for the transportation of thousands of additional students



9

and the operating costs of hundreds of additional buses 
which might be made necessary by the reorganization of 
schools. No additional State funds will be allocated to 
school administrative units to provide bussing of students 
for the purpose of creating a balance or ratio of students 
in schools.”

On February 13, 1970, plaintiffs moved the court (A. 
46-50; App. No. 281, p. 840a) to add as additional parties- 
defendant the Governor of the State; Mr. A. C. Davis, 
Controller of the State Board of Education; the Honorable 
William K. McLean, the Superior Court Judge who issued 
the temporary restraining order; each plaintiff in the 
Superior Court proceeding and their attorney. Plaintiffs 
also asked the court to add as additional parties-defendant 
the Honorable James Carson who initially proposed the 
statute here in question and who had made several public 
statements of his intention to file a proceeding in the state 
court to enjoin the school board from complying with the 
February 5, 1970, order of the court. Plaintiffs further 
sought to enjoin the enforcement of the state court restrain­
ing order as modified on February 12, 1970, and to enjoin 
the defendants from further interference with the imple­
mentation of the orders of the district court.

On February 20, 1970, the resident district judge entered 
an order reciting the various events and requesting that 
the Chief Judge of the Circuit designate a three-judge 
district court (A. 19-22; App. No. 281, p. 845a). A three- 
judge court was designated on February 24, 1970, and addi­
tional parties were added by order of February 25, 1970 
(A. 17-18; App. No. 281, p. 901a).

Meanwhile, on Sunday night, February 22, 1970, approxi­
mately 50 adults on behalf of themselves and their children 
filed another proceeding (Moore v. Charlotte-MecUenburg 
Board of Education) in the Mecklenburg County Superior



1 0

Court seeking to restrain desegregation of the Charlotte- 
Mecklenburg schools as directed by the district court. At 
10:16 p.m. on that Sunday night, the Honorable Frank 
Snepp issued an ex parte temporary restraining order 
enjoining the Charlotte-Mecklenburg Board of Education 
and its Superintendent

from instituting or implementing or putting into oper­
ation or effect, or expending any public funds upon, 
any plan or program under which children in the City 
of Charlotte or Mecklenburg County are denied access 
to any Charlotte-Mecklenburg public school because of 
their race or color or are compelled to attend any 
prescribed Charlotte-Mecklenburg public school be­
cause of their race or color. (App. No. 444, p. 19-20).

On Thursday, February 26, 1970, the board removed the 
Moore case to the United States District Court (App. No. 
444, p. 21-22). At a special meeting of the board on Fri­
day, February 27, 1970, the board chose to comply with 
the order of the state court rather than the orders of the 
federal district court. The Superintendent announced that 
all planning and activities then underway for implementa­
tion of the district court’s order of February 5, 1970, were 
terminated (App. No. 444, p. 31 or App. No. 281, p. 925a). 
On the same date, plaintiffs moved the court to add the 
plaintiffs in the Moore case, their lawyers and the Honor­
able Frank Snepp as additional parties-defendant in this 
case. Plaintiffs further sought an order enjoining the en­
forcement of the state court order and enjoining any fur­
ther efforts by all of the defendants from taking steps 
which would prevent or inhibit the implementation of the 
orders of the district court. Plaintiffs also sought an order 
finding all members of the Charlotte-Mecklenburg Board 
of Education and its Superintendent in contempt and im­
posing a fine or imprisonment for each day that the defen-



1 1

Judge McMillan on March 6, 1970, entered an order 
decreeing that the order by Superior Court Judge Snepp 
in the Moore case “is hereby suspended and held in abey­
ance and of no force and effect pending the final deter­
mination by a three-judge court or by the Supreme Court 
of the issues which will be presented to the three-judge 
court on March 24, 1970” (App. No. 281, pp. 925a-927a).4 
The three-judge court court eventually ruled in an opinion 
dated April 28, 1970, that the challenged portions of the 
anti-bussing law were unconstitutional in violation of the 
equal protection clause of the Fourteenth Amendment and 
the Supremacy Clause of Article VI of the Constitution 
(312 F. Supp. 503, 510; A. 2; App. No. 281, p. 1305a). The 
initial opinion denied injunctive relief and granted only 
a declaratory judgment. However, this portion of the 
original opinion was withdrawn5 and the court enjoined 
all of the parties in the Swann and Moore cases from 
“ enforcing, or seeking the enforcement of” the unconsti­
tutional portion of N.C. Gen. Stat. 115-176.1.

Although plaintiffs Swann, et al. originally sought a 
three-judge court, they subsequently urged upon the dis­
trict court that it was empowered to act on the matter as 
a single judge and that a three-judge court was not re­
quired by 28 U.S.C. §2281 because of the doctrine of Bailey * 6

* Both the attorney general and the state court plaintiffs made 
repeated efforts to disqualify or recuse Judge McMillan from sitting 
on the three-judge panel. See App. No. 281, p. 1, docket entries 
Nos. 143, 146, 148, 149, 154. On March 9, 1970, Chief Judge 
Haynsworth of the Fourth Circuit denied the motions to disqualify. 
Docket entry 155.

6 The three-judge court determined to grant an injunction rather 
than merely a declaratory judgment after taking note of this 
Court’s decisions in Rockefeller v. Catholic Medical Center, 397 
U.S. 820 (1970), and Mitchell v. Donovan, 398 U.S. 427 (1970).

dants failed to comply with the court’s orders. (App. No.
281, p. 814a-917a).



1 2

v. Patterson, 369 U.S. 31 (1962). The three-judge court 
rejected these arguments that a three-judge court was not 
required.6 (312 F. Supp. 503, 507.)

Some Facts on Student Transportation

Student transportation has become an important, and 
indeed, an essential auxiliary service in today’s education. 
Nationally, over 18 million students were transported daily 
to public schools during the 1969-70 school year. This rep­
resented approximately 40% of the total public school en­
rollment. NEA, National Commission on Safety Educa­
tion, 1968-69 Statistics on Pupil Transportation, 1970.

Approximately 55% or 610,760 students in North Caro­
lina were transported during the past school year. Trans­
portation was offered to all public school pupils who lived 
more than one and one half miles from the school to which 
they were assigned and who: (a) resided outside of the city 
limits; (b) resided outside the city limits as it existed 
prior to 1957; (c) resided within the city limits but who 
were assigned to a school outside the city limits or out­
side of the city limits as it existed prior to 1957; and (d) 
resided outside the city limits and were assigned to a 
school within the city limits. While local school units 
initially purchased school buses, operating costs and re­
placements of the buses were paid by the state.

Pursuant to state statutes, the North Carolina State 
Board of Education adopted rules and regulations to gov­
ern transportation of students. (Plaintiffs Exh. 71 for 6

6 The court below said that it rejected “plaintiffs’ attack upon 
our jurisdiction” (312 F. Supp. at 507). However, plaintiffs, by 
a brief filed in the trial court sought to make clear that their argu­
ment that a single judge might properly have disposed of the case 
was not a denial that the three-judge district court had jurisdiction 
over the matter, but rather that three judges were not required to 
decide the ease under 28 U.S.C. §2281.



13

March 1970 hearing in original record). The State Super­
intendent of Public Instruction had to approve any addi­
tions to the bus fleet or replacements of old buses by local 
units. Local units were also permitted to contract trans­
portation of students who qualify under state law with 
private transportation companies in lieu of purchasing and 
operating school buses.

On August 13, 1969, a three-judge court in Sparrow v. 
Gill, 304 F. Supp. 86 (W.D. N.C. 1969) held that the state 
statute which authorized transportation of city students 
who live in areas annexed by a city subsequent to 1957 dis­
criminated against other city students who were denied 
transportation. The State Board then amended its regu­
lations to authorize transportation of all public school 
children who live more than one and one-half miles from 
their school whether or not they reside within the city 
limits. This regulation has substantially increased the 
number of students transported in North Carolina.

Even prior to the Sparrow decision, the State Board of 
Education and State Superintendent made efforts to secure 
transportation for all students who resided more than one 
and one half miles from their school. Similar recommen­
dations had been made by a study commission appointed 
by the Governor in 1968 (App. in No. 281, 1202a; Plaintiff’s 
Ex. 13 at March 1970 hearing in original record).

The district court quoted the relevant state-wide data on 
transportation of students in its Supplemental Findings of 
March 21, 1970:

“ The average school bus transported 66 students each 
day during the 1968-69 school year; made 1.57 trips 
per day, 12.0 miles in length (one w ay); transported 
48.5 students per bus trip, including, students who 
were transported from elementary to high school.



14

“During the 1968-69 school year:

610,760 pupils were transported to public schools by 
the State

54.9 percent of the total public school average daily 
attendance was transported

70.9 percent were elementary students

29.1 percent were high school students

3.5 students were loaded (average) each mile of bus 
travel

The total cost of school transportation was $14,293,- 
272.80, including replacement of buses: The average 
cost, including the replacement of buses,, was $1,541.05 
per bus for the school year— 181 days; $8.51 per bus 
per day; $23.40 per student for the school year; $.1292 
per student per day; and $.2243 per bus mile of oper­
ation. (Emphasis added.)” (App. in No. 281, p. 1199a)

The Charlotte-Mecklenburg Board of Education trans­
ported approximately 23,600 students during the 1969-70 
school year. An additional 5,000 students rode the public 
transportation system at reduced fares. To transport the 
23,600 students the Charlotte-Mecklenburg Board of Edu- 
cation operated 280 buses; made an average of 1.8 trips 
per day per bus and carried an average of 83.2 students 
per bus daily. Each bus averaged 40.8 miles round trip 
per day and each trip took approximately one hour and 
15 minutes one way.

The board also transported more than 700 kindergarten 
children, ages 4 and 5, from 7 to 30 miles one way each day. 
(Br. A16, A24.)7

7 The district court opinion of August 3, 1970, reprinted as the 
Appendix to Petitioner’s Brief in No. 281, is cited as “Br. A. ■—



15

Transportation costs in tlie Charlotte Mecklenburg sys­
tem have been relatively inexpensive, less than 1% of the 
annual operating budget. The average cost for transporta­
tion per pupil was $20.00 per year or 22 cents per day. As 
indicated above, this closely approximates the average per 
pupil cost on the state level.

Finding this extensive transportation and its relative 
economy, the district court saw no reason why transporta­
tion could not equally be afforded to students in order to 
desegregate the school system (App. in No. 281, 1198a- 
1209a; Br. A10-A26). The court noted that transporta­
tion had been extensively used in order to maintain and 
to perpetuate segregated schools (1200a). Through the 
1964-65 school year, the Charlotte-Mecklenburg Board of 
Education maintained racially overlapping attendance 
zones in order to transport black students to black schools 
and white students to white schools (App. No. 281, p. 
1011a). Even during the 1969-70 school year when over­
lapping bus routes had ostensibly been eliminated the school 
board had continued to arrange transportation in order to 
perpetuate segregated schools. Black schools had been 
conveniently located near black residential areas as walk-in 
schools. White schools had been located in outlying white 
areas necessitating transportation of students. Thus, of 
the 23,600 students transported during the 1969-70 school 
year, only 541 of these students were transported to black 
schools (App. No. 281, 1014a-1032a; 1203a- 1204a).

The district court further noted that in addition to 
transportation, school district zones had been controlled 
in order to preserve segregated schools. The court stated 
in its order of June 20, 1969:

This issue was passed over in the previous opinion 
upon the belief which the court still entertains that 
the defendants, as a part of an overall desegregation



16

plan, will eliminate or correct all school zones which 
were created or exist to enclose black or white groups 
of pupils or whose population is controlled for pur­
poses of segregation. However, it may be timely to 
observe and the court finds as a fact that no zones 
have apparently been created or maintained for the 
purpose of promoting desegregation; that the whole 
plan of “building schools where the pupils are” with­
out further control promotes segregation; and that 
certain schools, for example Billingsville, Second Ward, 
Bruns Avenue and Amay James, obviously serve school 
zones which were either created or which have been 
controlled so as to surround pockets of black students 
and that the result of these' actions is discriminatory. 
These are not named as an exclusive list of such situa­
tions, but as illustrations of a long standing policy of 
control over the makeup of school population which 
scarcely fits any true “neighborhood school” philos­
ophy (App. No. 281, 455a-456a).

See also Reply Brief of Petitioners and Cross Respondents, 
in Nos. 281 and 349, pp. 3-17.

The court found that transportation of students would 
be necessary in order to desegregate the schools under 
any plan that might be directed:

“Both Dr. Finger and the school board staff appeared 
to have agreed, and the court finds as a fact, that 
for the present at least, there is no way to desegre­
gate the all black schools in Northwest Charlotte with­
out providing (or continuing to provide) bus or other 
transportation for thousands of children. All plans 
and all variations of plans considered for this pur­
pose led in one fashion or another to that conclusion” 
(1208a).



17

The court stated in its Memorandum Decision of August 
3, 1970 that although additional transportation would be 
required under the plan directed by the court, comparable 
transportation would be required under the other plans, 
with the exception of the plan submitted by the board (Br. 
A23). The court found, however, that the board had the 
facilities and personnel to implement the plan directed 
without any additional capital outlay during the first 
school year.

No capital outlay will be needed to operate buses for 
the 1970-71 school year. The state is ready and willing
to lend the few buses the board may need; replace­
ments can be bought after actual need has been de­
termined under operating conditions (Br. A23).

As the court had previously noted, the only thing neces­
sary for the board to implement the plan directed was the 
willingness of the members of the board to discharge their 
constitutional responsibilities to the black children in the 
school system (App. No. 281, 1219a-1220a),

Summary of Argument

I.

A  portion of N.C. Gen. Stats. §115-176.1 was properly 
held to be in violation of the Equal Protection and Su­
premacy Clauses of the Constitution.

The act limits a school board’s powers to effectuate de­
segregation of the schools in a manner which conflicts with 
the board’s affirmative duty to eliminate a dual school 
system as declared in Green v. County School Board of

The plan proposed by the Charlotte-Mecklenburg Board
of Education would require transportation of an additional
5,000 students.



18

New Kent County, 391 U.S. 430 (1968). School boards have 
an affirmative duty to bring about unitary systems and 
to that end they may use a variety of techniques of de­
segregation. Remedial measures for desegregation may 
not be limited by an artificial concept of color-blindness 
which functions to enable racial discrimination to continue. 
United States v. Montgomery County Board of Education, 
395 U.S. 225 (1969); Wanner v. County School Board of 
Arlington County, 357 F.2d 452 (4th Cir. 1966); cf. with 
respect to jury discrimination Judge Brown’s opinion in 
Brooks v. Beto, 366 F.2d 1 (5th Cir. 1966, en banc).

The act violates the principles of Hunter v. Erickson, 
393 U.S. 385 (1969), and Reitman v. Mulkey, 387 U.S. 369 
(1967), in that it effects an expressly racial classification 
which makes it more difficult for black citizens to achieve 
school integration, and its purpose and effect as re­
vealed by its entire context is to encourage the main­
tenance of segregation. New York’s similar law was inval­
idated on these grounds. Lee v. Nyquist, —-  F. Supp. •—-  
(W.D. N.Y., Civil-1970-9, Oct. 1, 1970) (three-judge court).

The court below also correctly concluded that the Act 
violates the Supremacy Clause by attempting to nullify 
federal court desegregation mandates. Bush v. Orleans 
Parish School Board, 188 F. Supp. 916 (E.D. La. 1960) 
(three-judge court), stay denied, Louisiana v. United 
States, 364 U.S. 500 (1960), affirmed, 365 U.S. 569 (1961); 
United States v. Peters (US) 5 Cranch 115, 136 (1809).

II.

The various state officials were properly named as addi­
tional defendants because the record shows that they in 
fact took actions which threatened to interfere with Judge 
McMillan’s court ordered desegregation plan in the Char- 
lotte-Meeklenburg school case.



19

The district court was empowered by 28 U.S.C. §2283 
to stay state court proceedings to protect or effectuate its 
own judgments. Bush v. Orleans Parish School Board, 187 
F. Supp. 42 (E.D. La. 1960) (three-judge court), affirmed, 
365 U.8. 569; Thomason v. Cooper, 254 F.2d 808 (8th. Cir. 
1958); Meredith v. Fair, 328 F.2d 586 (5th Cir. 1962), (en 
banc).

The court below properly rejected appellants’ arguments 
based on the Civil Rights Act of 1964 because that Act does 
not limit the powers of the courts to remedy unconstitu­
tional racial segregation in the schools.

III.

The direct appeal should be dismissed because the three- 
judge court was not required by any Act of Congress. 
28 U.S.C. §1253. Swift & Co. v. Wickham, 382 U.S. 111 
(1965). The challenged portions of the anti-bussing act 
presented no substantial question and were plainly un­
constitutional under this Court’s Green decision, supra. No 
three-judge court was required under Bailey v. Patterson, 
369 U.S. 31, 33 (1962). Implementation of the requirement 
that dual systems be dismantled at once is delayed by un­
necessarily convening three-judge courts to rule on segre­
gation laws.



2 0

ARGUMENT

I.

The Court Below Correctly Held That a Portion of 
N.C. Gen. Stat. § 115-176.1, Known as the Anti-Busing 
Law Is Unconstitutional and in Violation of the Equal 
Protection Clause and the Supremacy Clause of the 
Constitution of the United States.

A. Introduction— The Provisions of the Statute.

The North Carolina anti-busing law, N.C. Gen. Stat. 
§115-176.1 (Supp. 1969), was ratified and became effective 
July 2, 1969.8 It was entitled “An Act to protect the neigh­

s NORTH CAROLINA
GENERAL ASSEMBLY 

1969 SESSION 
RATIFIED BILL 

C h a p t e r  1274 
H ouse B il l  990

A n  A ct to protect t h e  neighborhood  school system  and  to
PROHIBIT THE INVOLUNTARY BUSSING OF PUPILS OUTSIDE THE DIS­
TRICT IN WHICH THEY RESIDE.

The General Assembly of North Carolina do enact:
Section 1. There is hereby created a new Section of Chapter 115 

of the General Statutes to be codified as G.S. 115-176.1 and to read 
as follows:

“ G.S. 115-176.1. Assignment of pupils based on race, creed, color 
or national origin prohibited. No person shall be refused admission 
into or be excluded from any public school in this State on account 
of race, creed, color or national origin. No school attendance dis­
trict or zone shall be drawn for the purpose of segregating persons 
of various races, creeds, colors or national origins from the com­
munity.

Where .administrative units have divided the geographic area 
into attendance districts or zones, pupils shall be assigned to schools 
within such attendance districts; provided, however, that the board 
of education of an administrative unit may assign any pupil to 
a school outside of such attendance district or zone in order that 
such pupil may attend a school of a specialized kind including but 
not limited to a vocational school or school operated for, or oper-



2 1

borhood school system and to prohibit the involuntary 
bussing of pupils outside the district in which they reside.” 
Our supplemental complaint challenged the validity of only 
the last two sentences9 in the second paragraph of the sec­

ating programs for, pupils mentally or physically handicapped, or 
for any other reason which the board of education in its sole dis­
cretion deems sufficient. No student shall be assigned or compelled 
to attend any school on account of race, creed, color or national 
origin, or for the purpose of creating a balance or ratio of race, 
religion or national origins. Involuntary bussing of students in 
contravention of this Article is prohibited, and public funds shall 
not be used for any such bussing.

The provisions of this Article shall not apply to a temporary 
assignment due to the unsuitability of a school for its intended 
purpose nor to any assignment or transfer necessitated by over­
crowded conditions or other circumstances which, in the sole discre­
tion of the School Board, require assignment or reassignment.

The provisions of this Article shall not apply to an application 
for the assignment or re-assignment by the parent, guardian or 
person standing in loco parentis of any pupil or to any assignment 
made pursuant to a choice made by any pupil who is eligible to 
make such choice pursuant to the provisions of a freedom of choice 
plan voluntarily adopted by the board of education of an admin­
istrative unit.”

Sec. 2. All laws and clauses of laws in conflict with this Act 
are hereby repealed.

Sec. 3. If part of the Act is held to be in violation of the Con­
stitution of the United States or North Carolina, such part shall be 
severed and the remainder shall remain in full force and effect.

See. 4. This Act shall be in full force and effect upon its 
ratification.

House Bill 990
In the General Assembly read three times and ratified, this the 

2nd day of July, 1969.
H. P. T a ylo r , J r .
H. P. Taylor, Jr.
President of the Senate.
P h il ip  P . G odw in
Philip P. Godwin
Speaker of the House of Representatives.

House Bill 990
9 Supplemental Complaint, para. I (A. 23-24).



2 2

tion, and it is only these two sentences—quoted hereafter— 
which the three-judge court restrained and declared in vio­
lation of the Equal Protection and Supremacy Clauses:

No student shall be assigned or compelled to attend 
any school on account of race, creed, color or national 
origin, or for the purpose of creating a balance or 
ratio of race, religion or national origin. Involuntary 
bussing of students in contravention of this Article 
is prohibited, and public funds shall not be used for 
any such bussing.

The first paragraph of §115-176.1 prohibits the exclu­
sion of persons from public schools on account of race, and 
prohibits the drawing of attendance districts for the pur­
pose of segregating persons “ of various races, creeds, col­
ors or national origins from the community.” The first 
sentence of paragraph two permits (but does not require) 
school authorities to assign pupils to schools by attendance 
zones and states that boards may assign pupils outside 
their zones to attend specialized schools “ or for any other 
reasons which the board of education in its sole discretion 
deems sufficient.” The next sentence—as quoted above— 
forbids the assignment of students “on account of race,” 
etc. or “ for the purpose of creating a balance or ratio of 
race, religion or national origins.” This is followed by the 
ban on “ involuntary bussing of students in contravention 
of” the act, and the use of public funds to support such 
bussing. The third paragraph excepts from the act tempo­
rary assignments due to the unsuitability of a school, or as­
signments necessitated by overcrowding of schools or—in 
broad terms—“ other circumstances which, in the sole discre­
tion of the School Board, require assignment or reassign­
ment.” The fourth paragraph permits assignments on the 
basis of parental or pupil request pursuant to a “ freedom



23

of choice plan voluntarily adopted by the board of educa­
tion.”

As the opinion below states, both counsel for the appellees 
Swann, et al. and the Attorney General of North Carolina 
construed the statute in much the same way (A. 7-8). As 
decribed by Judge Craven:

The North Carolina Attorney General argues that 
the statute was passed to preserve the neighborhood 
school concept. Under his interpretation, the statute 
prohibits assignment and bussing inconsistent with the 
neighborhood school concept. Thus, to disestablish a 
dual system the district court could, consistent with 
the statute, only order the board to geographically 
zone the attendance areas so that, as nearly as pos­
sible, each student would be assigned to the school 
nearest his home regardless of his race. . . .  [II] e recog­
nizes of course, that the statute also permits freedom 
of choice if a school board voluntarily adopts such a 
plan. Thus the plaintiffs and the Attorney General 
read the statute in much the same w ay: that it limits 
lawful methods of accomplishing desegregation to 
nongerrymandered geographic zoning and freedom of 
choice. (A. 8.)

Appellees believe that the act’s prohibition against as­
signments compelling a student to attend a school “ for the 
purpose of creating a balance or ratio of race . . .” forbids 
the use of a variety of desegregation techniques such as 
redesigning zones so as to promote desegregation, pairing 
schools or altering grade structures for the same end, 
closing or consolidating schools to aid integration, or con­
trolling school sizes by new construction, expansions, or the 
use of portable classrooms, or location of school sites to 
affirmatively promote integrated school systems. The anti­
bussing sentence forbids the. use of existing transportation 
facilities to promote desegregation or the initiation or ex-



24

pansion of bus services for that end unless pupils volunteer 
to ride such “desegregation buses.” The effect of the pro­
vision is to disable the board from changing assignment 
patterns of any objecting pupils who previously resided 
within walking distance (1% miles) of their schools for 
the purpose of desegregating the school system.

The available materials indicating the legislative history10 11 
of the anti-bussing law confirms this understanding of the 
legislation.11 The bill’s sponsor, Mr. Carson, an attorney,12 
said the purpose of the bill was stated in its title: “ to pro­
tect the neighborhood school system and to prohibit the 
involuntary busing of pupils outside the district in which 
they reside” (A. 67). He said that “ involuntary” busing

10 Copies of the bill as originally introduced in the North Caro­
lina House of Representatives, and the amendments made in a house 
committee substitute and by the state senate are explained in the 
deposition of the bill’s sponsor, State Rep. James H. Carson, Jr. 
who represents Mecklenburg County in the legislature (A. 64-88; 
various amendments and versions of the act appear at A. 89-93).

11 The original proposal by Rep. Carson on May 7, 1969 (A. 69, 
74), designated House Bill DRH 255, provided that no pupils be 
assigned outside their districts of residence except upon parental 
application; that pupils be assigned to the closest school to their 
homes in multi-school districts; that boards may provide transpor­
tation for pupils assigned within or without their districts in the 
boards’ “discretion,” but that pupils might not be bused outside 
their districts to a more distant school except by their parents’ 
choice. The bill made no mention of race or color at all. The bill as 
passed by the House and sent to the Senate (H.B. 990) appears at 
A. 90-91. This version was a committee substitute more nearly 
approximating the finally enacted bill. The committee substitute 
contained the language held invalid by the court below—the second 
and third sentences in present paragraph two. The Senate amend­
ments added (in addition to grammatical changes) the proviso 
about assigning pupils outside their zones to specialized schools 
(first sentence of paragraph two) and the reference to freedom of 
choice plans (end of paragraph four).

12 Mr. Carson was added as a defendant in this case not because 
of his legislative role but because he threatened to file proceedings 
in state court to prevent implementation of the court-ordered deseg­
regation plan (A. 47, 53).



25

refers to the decision of pupils and parents (A. 80); that 
the bill would prevent implementation of the Finger Plan 
ordered by Judge McMillan which required clustering and 
pairing of thirty-four elementary schools and the trans­
portation of pupils (A. 85-86). The fact that the bill was 
intended by its sponsor to conflict with Judge McMillan’s 
April 23, 1969, order in the Swann case is confirmed by the 
testimony of Mr. Carson:

Q. Look down, the report shows a question asked 
you by Rep. Arthur H. Jones of Mecklenburg regard­
ing any possible conflict between the bill and the de­
cision of the Court should that become law. Would the 
quotation there coming from you be correct? A. Not 
completely, no. There could be a conflict or there could 
not be, depending on what the Local Board decided 
to do.

Q. Do you recall whether you said: “Well, of course, 
I see a conflict. If there were no conflict I don’t think 
there would be any need for the bill.”

Mr. Waggoner : Objection.
A. I don’t recall whether I said it or not. I don’t deny 
it, I just don’t recall it.

Q. You might have said it? A. Yes.

The state court judges who applied §115-176.1 in the two 
cases brought suit against the Charlotte-Mecklenburg 
School board (Judge McLean in Harris v. Self, supra, and 
Judge Snepp in Moore v. Charlotte-Mecklenburg Bd. of 
Ed., supra) issued temporary injunctions applying the 
law to prevent implementation of the court-ordered Finger 
desegregation plan. The Harris v. Self order (infra 19a) 
enjoins the board from spending any funds “ for the pur­
pose of involuntarily transporting students in the Charlotte- 
Mecklenburg School System from one school to another and 
from one district to another district.” Thus the order



26

broadly purports to block any reorganization of the sys­
tem to desegregate the schools which involves “ involuntary 
bussing.” The order makes no distinctions based on the 
distances involved, age of the pupils or any such factors. 
The Moore case order (issued ex parte on a Sunday night) 
broadly enjoins “any plan or program under which any 
children . . . are denied access to any Charlotte-Meeklen- 
burg public school because of their race or color or are 
compelled to attend any prescribed . . . school because of 
their race or color.” (App. in No. 444, pp. 20-21.)

The school board upon being served with the Moore 
injunction, promptly determined without any inquiry of 
Judge McMillan to obey the state court order and directed 
the school staff to take no further steps to obey Judge 
McMillan’s desegregation decree.13 (App. No. 281, p. 925a; 
App. No. 444, p. 31.)

B. The statute unconstitutionally interferes with the school 
board’s affirmative duty to dismantle the dual system.

The court below correctly concluded that the purpose and 
effect of section 115-176.1 was to prevent school boards in 
North Carolina from performing their affirmative consti­
tutional duties to implement Brown v. Board of Education, 
347 U.S. 483 (1954), (Brown I), Brown v. Board of Edu­
cation, 349 U.S. 294 (1955) (Brown II),  and Green v. County 
School Board of New Kent County, 391 U.S. 430 (1968). 
We believe that the court below was so plainly correct in 
applying this Court’s decisions to invalidate the section 
that the case merits either summary affirmance or dismissal 
of the appeal.* *

13 The school board in 1969 took the view that §115-176.1 did not 
affect their discretion to adopt a plan to close inner city black 
schools and bus the pupils to white schools. (Swann, supra, 306 F. 
Supp. at 1295; App. No. 281, p. 585a).

* See Motion to Affirm or Dismiss filed herein.



27

The Green case held—in language applicable to Charlotte 
—that boards “ operating state compelled dual systems were 
. . . clearly charged with the affirmative duty to take what­
ever steps might be necessary to convert to a unitary sys­
tem in which racial discrimination would be eliminated 
root and branch” (391 U.S. at 437-438). Boards are re­
quired by Green to eliminate racially identifiable segre­
gated schools and to “ fashion steps which promise real­
istically to convert promptly to a system without a ‘white’ 
school and a ‘Negro’ school, but just schools” (379 U.S. 
at 442). The Attorney General of North Carolina, in 
defending the anti-busing law, directly challenges the hold­
ing in Green in his brief in this Court:

There is no way, considering the relation of the num­
ber of blacks to the number of whites, to establish 
schools “ in which there are no white schools and no 
Negro schools but just schools.” (Appellants’ Brief, p. 
16.)

The Attorney General argues that §115-176.1 directs the 
“ establishment of reasonable attendance areas and the 
preservation of the so-called ‘neighborhood school . . . 
[with] transportation of pupils on a nonraeial basis. . . 
(Appellants’ Brief, p. 16; emphasis added). The statute 
attempts to limit the remedies available to a school board 
or a federal court to change the dual system to freedom 
of choice plans, voluntary busing plans, or some kind of 
geographic zoning (variously called—by the appellants and 
the court below— “neighborhood” zoning, “ reasonable” zon­
ing, “non-gerrymandered” zoning, or zoning to the school 
nearest pupil’s homes).

The three-judge court concluded that notwithstanding 
the federal courts’ deference to such an expression of state 
legislative policy in favor of “neighborhood schools” , such



28

a policy could not override the duty imposed by Brown and 
Green. Where—as in Charlotte— a “neighborhood” assign­
ment policy cannot dismantle the state-created dual school 
system and eliminate all-black schools, a law which com­
pels a neighborhood plan is simply a segregation law. In 
Charlotte, where all-black schools in black neighborhoods 
have been created by the acts of the school board and other 
governmental agencies, a requirement of neighborhood 
schools is simply a requirement for black schools in direct 
disobedience of Brown I. School desegregation plans must 
be designed so that they will work to dismantle state- 
created dual systems of separate white and black schools. 
A  “neighborhood” policy or law which preserves the pat­
tern of separate black and white schools is in direct oppo­
sition to Green as the Attorney General’s brief has sub­
stantially admitted in the passage quoted above. Similarly, 
the statutory prohibition against use of school transporta­
tion facilities to eliminate racial identifiability of schools is 
equally in conflict with Green.

The provision to prohibit busing to desegregate the 
schools—except where pupils submit voluntarily to busing 
—contravenes the mandate of Green that boards take 
“whatever steps might be necessary to convert to a unitary 
system” (Green, supra, 391 U.S. at 437-438). Judge Mc­
Millan found that the use of the transportation system 
was necessary in order to afford a desegregated education 
to black children in certain Charlotte neighborhoods. The 
state may not enact a law forbidding that which is neces­
sary to be done to obey the mandate of Brown I. The con­
tent of the statute’s ban on busing is sufficiently vague that 
it affords little guide to differentiating legal busing- from 
illegal busing. The net effect is to leave the matter of 
busing to the discretion of school boards. But despite the 
normal area of school board discretion about such matters



29

the ultimate decision about whether facilities which are 
necessary to integrate the school will be used cannot be 
left as a matter of discretion. Green requires that the 
boards do whatever is necessary to dismantle the dual sys­
tem of black schools and white schools and eliminate ra­
cially identifiable schools where black pupils are set apart.

Section 115-176.1 would prevent the use of a variety of 
assignment methods and techniques which are being widely 
used to desegregate school systems. The law threatens to 
interfere with such techniques as school closing and con­
solidations, rezoning methods and techniques (zones de­
signed to promote integration, non-contiguous zones), 
grade structure changes, the use of pairing and clustering 
techniques, and the control of school sizes by use of port­
able classrooms, building sizes, and site location when these 
methods are used for the purpose of controlling the racial 
composition of school populations. The Fourth Circuit has 
decided in the Charlotte case that all such methods must 
be considered in evaluating the available alternatives to de­
segregate the schools. We believe that the court was correct 
in viewing these techniques as appropriate remedies con­
sistent with the “practical flexibility” mandated by Brown 
II (349 U.S. 294, 300) (App. No. 281, p. 1274a). Section 
115-176.1 seeks to deprive the boards and courts of the 
necessary flexibility to accomplish the needed reforms.

The North Carolina Attorney General complains that 
the court below fails to define the constitutional objective 
of a unitary school system. But neither the Attorney 
General’s Brief nor the anti-busing law suggests any prin­
ciple of law for deciding such matters except that school 
boards be left alone to decide for themselves how much 
desegregation to accomplish. The entire appeal for a 
“neighborhood school” system—which has never existed 
in the Charlotte-Mecklenburg system—is in reality an



30

appeal for the courts to let the school boards use their 
control and their discretion to define school attendance. 
The “neighborhood school system” is primarily a political 
slogan, and the appellants seek to have the matter of 
eliminating school segregation resolved in the political 
process by elected school boards. The constitutional rights 
of black children under the Brown decision may not, under 
our constitutional system of protection for the individual 
rights of minority group members, be left to depend upon 
whether segregationists can win school board elections.

A  three-judge court in Alabama recently invalidated a 
statute which forbids assignment “for the purpose of 
achieving equality in attendance or increased attendance 
or reduced attendance, at any school, of persons of one or 
more particular races” etc. Alabama v. United States, ——
F.Supp------  (S.D.Ala. Civil No. 5935-70-P, June 26, 1970)
(reproduced infra, Appendix B). That statute which is 
similar in effect to §115-176.1 was rejected on the same 
grounds relied upon by the court below. The Alabama dis­
trict court was of the unanimous opinion that the statute did 
not even present a substantial question as it was foreclosed 
by prior decisions of this Court.

C. The Appellants’ Argument Supporting the Statute Rests on 
a rejected view that there is no affirmative duty to desegre­
gate the schools.

The Attorney General of North Carolina relies on the 
idea that school authorities have no affirmative duty to 
bring about integration of segregated schools. He cites the 
doctrine of Briggs v. Elliott, 132 F.Supp. 776 (E.D.S.C. 
1955), a doctrine which has been thoroughly repudiated by 
this Court’s decision in Green, supra, as well as by the 
Fourth and Fifth Circuits. See e.g. Walker v. County 
School Board of Brunswick Cty., 413 F.2d 53, 54, note 2



31

(4th Cir. 1969); and United States v. Jefferson County 
Board of Education, 372 F.2d 836, 846, 862-866 (5th Cir. 
1966), affirmed on rehearing en banc, 380 F.2d 385, 389 
(5th Cir. 1967), cert, denied sub nom. Caddo Parish School 
Board v. United States, 389 U.S. 840 (1967). The Green 
case made it clear that school boards must take affirmative 
action to root out segregation and “disestablish” the segre­
gated systems. It is the result—whether a plan actually 
works to integrate the schools'—that determines the ade­
quacy of a plan to satisfy the constitutional mandate.

The appellants seek to find support for the anti-busing 
law in the Brown case itself by arguing that Brown rests 
on the premise that schools must be run on a color-blind 
basis. They argue that the use of color-conscious techniques 
to bring about school integration offends not only the anti­
bussing law, but the Fourteenth Amendment as well.14 15

The appellants’ argument entirely ignores this Court’s 
recent holding—which must be taken as a repudiation of 
the idea that remedies for discrimination must be color­
blind—in United States v. Montgomery County Board of 
Education, 395 U.S. 225 (1969). The case is not even cited 
in the Appellants’ Brief.16 The Montgomery County deci­
sion approved a district judge’s use of specific numerical 
goals for faculty integration as a remedial technique neces­
sary to accomplish the ultimate objective of eliminating 
the racial identifiability of faculties in a segregated system.

14 When a litigant sought to use the Constitution to nullify a law 
against employment discrimination Mr. Justice Frankfurter wrote 
that “ To use the Fourteenth Amendment as a sword against such 
State power would stultify that amendment.” Railway Mail Asso­
ciation v. Corsi, 326 U.S. 88, 98 (1945) (concurring opinion). Mr. 
Justice Reed called the argument “A distortion of the policy mani­
fested in that amendment.” (326 U.S. at 94) That same idea ap­
plies to appellants’ argument.

15 Appellants do however attack the requirement of faculty inte­
gration. Appellants’ Brief pp. 24-25.



That decision necessarily rests on the premise that a 
remedial technique which is color-conscious does not offend 
the equal protection clause when it is used to eliminate 
school segregation. The Montgomery County decision em­
phasized the practical problems of a district judge seeking 
to eliminate an entrenched system of segregation. That 
difficult task cannot be accomplished by self-induced blind­
ness to the race of the people in a segregated system. The 
appellants’ argument that race cannot be considered in 
integrating the schools has been rightly rejected in a host 
of school desegregation decisions in the lower federal 
courts.16

The appellants attempt to support their argument by 
analogy from jury discrimination cases (Appellants’ Brief, 
pp. 23-24). Judge Brown’s opinion in Brooks v. Beto, 366 
F.2d 1 (5th Cir. 1966; en lane), cert, denied 386 U.S. 975 
(1967) deals with the precise problem. Holding that real­
ism required a consideration of race in reforming a jury 
system which had previously excluded Negroes, Judge 
Brown wrote:

“Although there is an apparent appeal to the osten­
sibly logical symmetry of a declaration forbidding race 
consideration in both exclusion and inclusion, it is both 
theoretically and actually unrealistic. Adhering to a 
formula which in words forbids conscious awareness 
of race in inclusion postpones, not advances, the day 16

16 Wanner v. County School Board of Arlington County, 357 
F.2d 452 (4th Cir. 1966) ; Dowell v. Board of Education of the 
Oklahoma City Public Schools, 244 F. Supp. 971, 981 (W.D.Okla. 
1965), affirmed 375 F.2d 158, 169-170 (10th Cir. 1967), cert, denied 
387 IT.S. 931 (1967); United States v. Jefferson County Board of 
Education, 372 F.2d 836, 876-877 (5th Cir. 1966), affirmed on re­
hearing en banc, 380 F.2d 385 (5th Cir. 1967), cert, denied sub nom. 
Caddo Parish School Bd. v. United States, 389 U.S. 840 (1967) ; 
Youngblood v. Board of Public Instruction of Bay County, No. 
29369 (5th Cir. July 24, 1970) ; United States v. Board of Public 
Instruction of Polk County, 395 F.2d 66 (5th Cir. 1968).



33

when this terrible blight of racial discrimination is 
exterminated. The challenge is to assure constitutional 
equality now. This often means, as it did in this case, 
eradication of the evils of the past. That evil of racial 
exclusion cannot be ignored. It must be reckoned with 
in terms which permit, indeed assure, equality for the 
immediate future. The evil and the evil practices are 
not theoretical. They are realities. The law’s response 
must therefore be realistic.” (Brooks v. Beto, 366 F.2d 
1, 24 (1966).)

The anti-busing act’s pretended color-blindness is also de­
signed to postpone, not advance the elimination of segre­
gation. The assertion that it has a benign intent is entirely 
belied by its inevitable and intended consequence of dis­
abling school boards from altering the segregated systems 
they have established throughout North Carolina.

D. Additionally §115-176.1 is unconstitutional because it vio­
lates the principles stated in Hunter v. Erickson, 393 U.S. 
335 (1 96 9 ) and also the doctrine of Reitman v. Mulkey, 
387 U.S. 369 (1 96 7 ).

The judgment below invalidating a portion of section 
115-176.1 may be affirmed on either of two added grounds 
not previously considered in the case—the doctrines of 
Hunter v. Erickson, supra, and Reitman v. Mulkey, supra. 
A  sound opinion by Judge Hays for a three-judge district 
court has recently invalidated the New York anti-bussing 
law17 on these grounds. Lee v. Nyquist, — — F.Supp.------ ,

17 Section 3201(2) of the New York Education Law (McKinney 
1970) enacted in 1969 was summarized by Judge Hays as a provi­
sion that “prohibits state education officials and appointed school 
boards from assigning students, or establishing, reorganizing or 
maintaining school districts, school zones or attendance units for 
the purpose of achieving racial equality in attendance” . Elected 
boards continue to have such power. The law does not expressly 
mention busing.



34

(W.D.N.Y. Civil-1970-9, October 1, 1970) (three-judge 
court).

Hunter v. Erickson, supra, applies because the contested 
portions of § 115-176.1 make an “ explicitly racial classifica­
tion” by banning assignments of pupils, or involuntary 
busing “for the purpose of creating a balance or ratio of 
race, creed, color or national origin.” This creates an in­
vidious racial classification which denies equal protection 
of the laws. Under the statute school boards are permitted 
to assign pupils or involuntarily bus them for any reason 
except the purpose of creating a racial balance. Pupils 
might be assigned or involuntarily bused for any of a 
variety of reasons without violating the North Carolina 
law. Boards might without running afoul of the anti­
bussing law bus pupils to segregate the sexes, to assign 
pupils by ability grouping or assign them homogeneously, 
to economize or achieve other advantages by consolidating 
small schools, to enable schools to be built on cheaper land 
far from residential areas or for many other reasons one 
might imagine. Pupils may be bused to attend picnics or 
sports events or concerts or for any of a variety of sight­
seeing outings considered part of the educational program. 
It is only busing to achieve racial integration which is 
effectively prohibited by §115-176.1. This classification 
treating assignments and busing involving racial criteria 
differently from other assignments and other busing makes 
it more difficult to deal with the question of racial integra­
tion in the schools. It constitutes an invidious discrimina­
tion against Negro citizens who have a right to have the 
segregated Negro schools designed to receive Negro chil­
dren eliminated as racially identifiable institutions. There 
is no compelling justification for the statutory classification 
by race. It makes it more difficult for blacks to achieve a 
goal that is in their interest—racial integration of the 
schools.



35

Reitman v. Mulkey, 387 U.S. 369 (1967) applies because 
§115-176.1, serves to encourage maintenance of segregation 
throughout North Carolina. It is entirely obvious in the 
context of Judge McMillan’s order to desegregate the 
Charlotte schools, and the entire history of sixteen years of 
failure to implement Brown in the Charlotte-Mecklenburg 
system and many others in the state, that the North Caro­
lina anti-busing law was designed to preserve a degree of 
school segregation. The law’s title includes a purpose to 
protect “neighborhood schools” . It was enacted in direct 
response to a decision by Judge McMillan on April 23, 1969, 
that “ ‘Neighborhood’ in Charlotte tends to be a group of 
homes generally similar in race and income.” (App. No. 
281, p. 305a), and that:

“The manner in which the Board has located schools 
and operated the pupil assignment system has con­
tinued and in some situations accentuated patterns of 
racial segregation in housing, school attendance and 
community development. The Board did not originate 
those patterns; however, now is the time to stop ac­
quiescing in those patterns.” (App. No. 281, p. 312a).

No one who realistically views this case imagines that the 
anti-busing law was anything other than an effort to re­
pudiate such holdings and establish a basis for retaining 
segregation. The effect of the discriminatory encourage­
ment is obviously much stronger and more blatant in the 
Charlotte-Mecklenburg context than was the discrimina­
tory encouragement found in California’s Proposition 
Fourteen in Reitman, supra. See also Lee v. Nyquist, supra, 
and Keyes v. School Dist. No. 1, Denver Colo., 313 F. Supp. 
61 (D.Colo. 1970).



36

E. The Court Below correctly Concluded that §115-176.1 also 
violates the Supremacy Clause of Article VI of the Consti­
tution.

The purpose and effect of the disputed portions of 
§ 115-176.1 is quite manifestly an effort to prevent school 
boards from performing their obligations under the Brown 
decisions and overrule the mandates of the federal courts 
seeking to enforce the requirement of desegregation. Un­
happily attempts by state legislatures to nullify Brown 
have not been infrequent, notwithstanding this Court’s clear 
admonition in Cooper v. Aaron, 358 U.S. 1, 18 (1958): 
“No state legislator or executive or judicial officer can war 
against the Constitution without violating his undertaking 
to support it.”

The doctrine of legislative interposition and nullification 
of desegregation decrees has no shred of legality. Bush v. 
Orleans Parish School Board, 187 F. Supp. 42 (E.D. La. 
1960; three-judge court), stay denied, 364 U.S. 803, judg­
ment affirmed, Orleans Parish School Board v. Bush, 365 
U.S. 569 (1961); Bush v. Orleans Parish School Board, 
188 F. Supp. 916 (E.D. La, I960; three-judge court), stay 
denied, sub nom. Louisiana v. United States, 364 U.S. 500
(1960) , judgment affirmed, 365 U.S. 569 (1961); Bush v. 
Orleans Parish School Board, 190 F. Supp. 861 (E.D. La. 
1960; three-judge court), judgment affirm,ed, New Orleans 
v. Bush, 366 U.S. 212 (1961); Bush v. Orleans Parish School 
Board, 191 F. Supp. 871 (E.D. La. 1961; three-judge court), 
judgment affirmed, sub nom. Legislature of Louisana v. 
United States, 367 U.S. 907 (1961) and Denny v. Bush, 
367 U.S. 908 (1961); Bush v. Orleans Parish School Board, 
194 F. Supp. 182 (E.D. La. 1961; three-judge court), judg­
ment affirmed, sub nom. Tugwell v. Bush, 367 U.S. 907
(1961) and Gremillion v. United States, 368 U.S. 11 (1961); 
Lee v. Macon County Board of Education, 267 F. Supp. 458 
(M.D. Ala. 1967; three-judge court), affirmed, sub nom.



37

Wallace v. United States, 389 IT.S. 215 (1967); Hall v. 
St. Helena, Parish School Board, 197 F. Supp. 649 (E.D. 
La. 1961; three-judge court), judgment affirmed, 368 U.S. 
515 (1961); Poindexter v. Louisiana Financial Assistance 
Commission, 275 F. Supp. 833 (E.D. La. 1967; three-judge 
court), judgment affirmed, 389 U.S. 571 (1968); Poindexter 
v. Louisiana Financial Assistance Commission, 296 F. Supp. 
686 (E.D. La. 1968; three-judge court), judgment affirmed, 
sub nom. Louisiana Education Commission for Needy Chil­
dren v. Poindexter, 393 U.S. 17 (1968); Louisiana Educa­
tion Commission for Needy Children v. U. S. District Court, 
390 U.S. 939 (1968) (prohibition denied); Brown v. South 
Carolina State Board of Education, 296 F. Supp. 199 (D. 
S.C. 1968; three-judge court), judgment affirmed, 393 U.S. 
222 (1968).

The decisions of the district court in this case to require 
the further desegregation of the schools and to require 
the use of bussing and other techniques were of course not 
final until appropriate appeals were exhausted. But rather 
than resorting to appeals in due course, the state officials 
in North Carolina engaged in discreditable attempts to 
review and nullify the judgments of the district court by 
resort to state legislative, executive and judicial actions. 
These assertions of power were sought to be justified by 
arguments that decisions of the district court need not be 
obeyed and were not lawful until upheld by this Court. 
Such a premise must be emphatically rejected, as it was 
in the Bush case:

From the fact that the Supreme Court of the United 
States rather than any state authority is the ultimate 
judge of constitutionality, another consequence of equal 
importance results. It is that the jurisdiction of the 
lower federal courts and the correctness of their deci­
sions on constitutional questions cannot be reviewed



38

by the state governments. Indeed, since the appeal 
from their rulings lies to the Supreme Court of the 
United States, as the only authoritative constitutional 
tribunal, neither the executive, nor the legislature, nor 
even the courts of the state, have any competence in 
the matter. It necessarily follows that, pending re­
view by the Supreme Court, the decisions of the sub­
ordinate federal courts on constitutional questions 
have the authority of the supreme law of the land 
and must be obeyed. Assuredly, this is a great power, 
but a necessary one. See United States v. Peters, 
supra, 5 Cranch 135, 136, 9 U.S. 135, 136. (Bush v. 
Orleans Parish School Board, 188 F. Supp. 916, 925 
(E.D. La. I960).)

Section 115-176.1 is all the more constitutionally vulner­
able because it is also a legislative effort to deprive the 
black pupils who are plaintiffs in the Charlotte-Mecklen- 
burg school case (appellees) of their rights under a specific 
judgment of the district court. This Court unanimously 
rejected such an assertion of state power to set aside a 
federal court decree in an historic opinion by Chief Justice 
John Marshall delivered on February 20, 1809, and such 
assertions have been emphatically rejected ever since. In 
United States v. Peters, (US) 5 Cranch 115, 136, (1809) it 
was stated:

If the legislatures of the several states may, at mil, 
annul the judgments of the courts of the United States, 
and destroy the rights acquired under those judgments, 
the constitution itself becomes a solemn mockery, and 
the nation is deprived of the means of enforcing its 
laws by the instrumentality of its own tribunals. So 
fatal a result must be deprecated by all; and the people 
of Pennsylvania, not less than the citizens of every 
other state, must feel a deep interest in resisting prin-



39

The three-judge court which recently invalidated Ala­
bama’s so-called Freedom of Choice act reached the same 
conclusion we urge here in a similar context. See Alabama
v. United States, ------  F. Supp. ------  (S.D.Ala. Civil No.
5935-70-P; June 26, 1970) (reprinted infra Appendix B). 
The Alabama law involved was very similar to the New 
York law discussed in part I.D. supra, except that it cov­
ered all school boards and not merely appointed boards. 
The Alabama court thought the North Carolina law was 
“analogous” . That opinion also cites several other unre­
ported orders by district judges who refused to permit 
such intervening legislation to impede desegregation orders. 
See e.g. Bivins v. Bibb Co. Bd. of Ed. (M.D.G-a. No. 1926, 
May 22, 1970); Lee v. Macon Co. Bd. of Ed., M.D.Ala. 
Civ. No. 604-E, orders dated March 12, 1970 (Tuscumbia 
City), March 16, 1970 (Colbert County), March 23, 1970 
(Monroe County).

ciples so destructive of the Union, and in averting
consequences so fatal to themselves.



40

II.

The Appellants’ Other Objections to the Judgment 
Below Are Also Insubstantial.

A. The motions to dismiss were properly denied.

The Attorney General’s arguments that the State Board 
of Education, the Superintendent of Public Instruction, 
the Governor18 and other state officers were not properly 
named as defendants is plainly without merit. The argu­
ment rests on assertions that under state law these offi­
cials have no responsibility for operating local schools or 
school buses. But the undisputed facts of record, detailed 
in our Statement supra, indicate that these state officers 
did in fact threaten interference with the desegregation 
orders issued by Judge McMillan in reliance upon the 
anti-busing law. This amply justified adding them as addi­
tional defendants. Cf. Lee v. Macon County Board of Edu­
cation, 267 F. Supp. 458 (M.D. Ala. 1967; three-judge 
court), affirmed sub nom. Wallace v. United States, 389 TJ.S. 
215 (1967) which is a state-wide school desegregation suit 
against state officials following the state officials’ actual 
exercise of power over local desegregation efforts.

The state education officials in North Carolina have been 
held to share the affirmative duty to bring about the de­
segregation of schools with local officials. Godwin v. Johns- 
ton County Board of Education, 301 F. Supp. 339 (E.D.

18 It does not matter that one of the state officers involved is the 
Governor of the State, for governors are in no different position 
than other state officials in terms of their duty to obey and not 
impede federal court judgments. Sterling v. Constantin, 287 TJ.S. 
378, 393 (1932) • Faubus v. United States, 254 F.2d 797 (8th Cir. 
1958), cert. den. 358 U.S. 829; Meredith v. Fair, 328 F.2d 586 (5th 
Cir. 1962); United States v. Wallace, 222 F. Supp. 485 (M.D. Ala. 
1963) ; Harvest v. Board of Public Instruction of Manatee County, 
312 F. Supp. 269 (M.D. Fla. 1970).



41

N.C. 1969); cf. Bryant v. State Board of Assessment, 293 F. 
Supp. 1379 (E.D. N.C. 1968; three-judge court). The rec­
ord in this ease contains extensive exhibits indicating the 
details of the control the state officials have over local 
school systems which might be used to aid or impede school 
desegregation. The entire school transportation system is 
basically dependent upon state financing and a state de­
partment of education refusal to pay operating costs for 
buses engaged in promoting desegregation would directly 
impede such a busing program.

B. The District Court was empowered to stay State Court 
proceedings to protect or effectuate its judgments.

No appeal lias been filed on behalf of the state court 
plaintiffs in Harris v. Self or their attorneys from the judg­
ment restraining them from seeking enforcement of the 
invalid parts of the anti-busing law. However the Attor­
ney General has filed an appeal on behalf of Judge McLean 
one of the judges of the Superior Court who enjoined the 
school board from transporting pupils pursuant to the 
court-ordered desegregation plan.

The authority of the district court to protect its judg­
ments adjudicating the constitutional rights19 of citizens 
from being reviewed or obstructed by a state court is 
fundamental. As this Court made clear in Cooper v. Aaron, 
358 TI.S. 1, 17-19 (1968), it has been settled since Marbury

19 This authority extends equally to the district court’s decision 
(since affirmed by the Fourth Circuit) ordering the school board 
to pay the expenses and fees of the court’s consultant Dr. John 
Finger. Judge McLean in Harris v. Self purported to enjoin the 
superintendent of schools from paying this fee without approval 
of the school board, which was withheld notwithstanding the fact 
that the Fourth Circuit decision on this question has not been 
stayed and no review of that decision has been sought here. See 
In the Matter of Peterson, 253 U.S. 300, 312 (1920). The issue is 
another manifestation of the board’s recalcitrant attitude in the
case.



42

v. Madison (US) 1 Crunch 137, 177 (1803) that the “ fed­
eral judiciary is supreme in the exposition of the law of 
the Constitution.”

The power of the federal district court to stay state 
court proceedings where necessary to “protect or effectu­
ate its judgments” against threatened relitigation in state 
courts is conferred by 28 U.S.C. §2283. See 1A Moore’s 
Federal Practice, 2319-2320, 2614-2616. Such orders re­
straining conflicting state court proceedings have been is­
sued in a number of school desegregation cases. Bush v. 
Orleans Parish School Board, 187 F. Supp. 42 (E.D. La. 
I960; three-judge court), affirmed, 365 U.S. 569 (1961) 
(both the litigants and state judge were enjoined in Bush) ; 
Thomason v. Cooper, 254 F.2d 808 (8th Cir. 1958); Mere­
dith v. Fair, 328 F.2d 586 (5th Cir. 1962; en lane).

We take the point to be virtually conceded by appellants’ 
brief which states with respect to Judge McLean: “The 
District Court’s injunction as to him could be sustained 
as a protection of jurisdiction only, but, otherwise, Judge 
William K. McLean has nothing to do with the operation 
of schools and the busing of pupils.” (Appellant’s Brief, 
p. 11).
C. The Civil Rights Act of 1964 does not support 

appellants’ argument.

Appellants sought below to support the anti-bussing law 
by the argument that the Congress had enacted a similar 
prohibition. The assertion cannot withstand close analysis. 
Congress did no such thing. But, the Court below simply 
held that the Civil Bights Act of 1964 could not be inter­
preted to frustrate the constitutional prohibition of segre­
gated schools. This is exactly correct for as this Court has 
recently said “ Congress may not authorize the states to 
violate the Equal Protection Clause.” Shapiro v. Thomp­
son, 394 U.S. 618, 641 (1969); Katzenbach v. Morgan, 384 
U.S. 641, 651, n. 10 (1966). The appellants’ argument based



43

on the Civil Rights Act is essentially the same argument 
made by the Charlotte-Mecklenburg Board of Education. 
We have responded and showed that the federal courts have 
uniformly rejected the argument, and rightly so, in peti­
tioners’ Brief in No. 281, at pp. 65-66, and in petitioners’ 
reply brief in Nos. 281 and 349, pp. 32-40. We adopt those 
arguments in this case.

III.
The Court Has No Jurisdiction of the Appeal Under 

the Doctrine of Bailey v. Patterson, 369 U.S. 31.

It is submitted that the Court does not have jurisdiction 
of a direct appeal pursuant to 28 U.S.C. §1253 because the 
case was not required by any Act o f Congress to be heard 
by a three-judge district court. It is immaterial to this 
Court’s jurisdiction that three judges actually sat if they 
were not required to sit. Swift d Co. v. Wickham, 382 
U.S. I l l  (1965).

In Bailey v. Patterson, 369 U.S. 31, 33 (1962), this Court 
held that a three-judge court is not required “when prior 
decisions make frivolous any claim that a state statute 
on its face is not unconstitutional.” See also Turner v. 
Memphis, 369 U.S. 350, 353 (1962); cf. Ex Parte Poresky, 
290 U.S. 30 (1933). We believe that these principles apply 
in this case because §115-176.1 is so plainly in conflict with 
Green v. County School Board of New Kent County, 391 
U.S. 430 (1968). The three judge court which recently 
invalidated an analogous Alabama law reached the same 
conclusion that the unconstitutionality of the law was fore­
closed by this Court’s recent decisions. See Alabama v.
United States, •------F. Supp. --------  (S.D.Ala. Civil No.
5935-70-P, June 26, 1970 reproduced infra appendix B.

This Court’s decisions in Alexander v. Holmes Cownty 
Board of Education, 396 U.S. 19 (1969); Dowell v. Board 
of Education of the Oklahoma City Public Schools, 396 U.S.



44

269 (1969), and Carter v. West Feliciana Parish School 
Board, 396 U.S. 290 (1970), require that dual school systems 
be desegregated at once. The mandate of Alexander re­
quires that the lower federal courts dispose of cases in­
volving school desegregation with dispatch. The unneces­
sary convening of three-judge courts to dispose of state 
laws seeking to prevent desegregation is not only wasteful 
of judicial resources but a cause of delay of substantive 
constitutional rights. Sixteen years after Brown I is far 
too long a period for there to be any doubt about the in­
validity of laws such as §115-176.1 which have the plain 
purpose and effect of retaining racial segregation in the 
public schools.

CONCLUSION

For the foregoing reasons it is respectfully submitted 
that the judgment below should be affirmed, or, in the al­
ternative, that the appeals should be dismissed.

J ack  Greenberg 
J ames M. N abrit, III 
N orman  J . C h a c h k in  

10 Columbus Circle 
New York, N. Y. 10019

J . L eV onne  Chambers 
A dam S tein
C ham bers , S te in , F erguson & C an n in g  

216 West Tenth Street 
Charlotte, N. C. 28202

C. O. P earson
2031/2 East Chapel Hill Street 
Durham, N. C. 27702

A n t h o n y  G. A msterdam
Stanford University Law School 
Stanford, Calif. 94305

Attorneys for Appellees



APPENDIX



BRIEF APPENDIX A

Notification and Request for  Designation o f  
Three-Judge Court

(Filed February 20, 1970)

I n  th e  D istrict C ourt of th e  U nited  S tates 
F or t h e  W estern D istrict of N orth  C arolina

Charlotte Division
Civil Action No. 1974

J ames E. S w a n n , et al., 

—vs.—
Plaintiffs,

C harlotte-M ecklenburg  B oard of E ducation , a public 
body corporate; W illiam  E . P o e ; H enderson B e l k ; 
D an H ood ; B en  F. H u n t l e y ; B etsy K e l l y ; Coleman  
W . K erry, J r .; J u lia  M a u ld e n ; S am  M cN in c h , III; 
Carlton  G. W a t k in s ; th e  N orth C arolina S tate 
B oard of E ducation , a public body corporate; and, 
D r . A. Craig P h ill ip s , Superintendent of Public In­
struction of the State of North Carolina,

Defendants,
— and—

H onorable R obert W . S cott, Governor of the State o f  
North Carolina; H onorable A. C. D avis, Controller o f  
the State Department of Public Instruction; H onorable 
W illiam  K. M cL ean , Judge of the Superior Court o f  
Mecklenburg County; T om B. H ar r is ; G. D on R ober­
s o n ; A. B reece B re l a n d ; J ames M. P o stell ; W illiam  
E . R orie, J r . ; C h alm ers  R . Carr ; R obert T. W ilson  ; 
and the C oncerned P arents A ssociation, an unincor­
porated association in Mecklenburg County; J ames 
Carson and W illiam  H. B ooe,

Additional Parties-Defendant.

Several orders, starting April 23, 1969, have been en­
tered by this court dealing with pending motions for



2a

desegregation of the Charlotte-Mecklenburg schools. The 
orders of December 1 and December 2, 1969, and February 
5, 1970, are attached as Exhibits A, B and G to this motion.

The December 2, 1969 order appointed Dr. John A. 
Finger, Jr. to assist the court in the preparation of a plan 
for the desegregation of the schools. The February 5, 1970 
order directs the schools to be desegregated according to 
various principles described or referred to in the order, 
including the requirement erroneously advertised as “in­
voluntary bussing to achieve racial balance” which reads 
as follows:

“ That transportation be offered on a uniform non- 
racial basis to all children whose attendance in any 
school is necessary to bring about the reduction of 
segregation, and who live farther from the school to 
which they are assigned than the Board determines 
to be walking distance.”

A  suit has been filed in the General Court of Justice, 
Superior Court Division, Mecklenburg County, North Caro­
lina, No. 70-CVS-1097, entitled “ T om B. H arris, G. D on 
R oberson, et al., Plaintiffs, vs. W illiam  C. S ell , Super­
intendent of Charlotte-Mecklenburg Schools, and Ch ar­
lotte-M ecklenburg  B oard of E ducation , Defendants,” and 
pursuant to allegations made in that action, Judge W. K. 
McLean, of the Superior Court of North Carolina, has 
entered an order temporarily restraining the School Board 
and the Superintendent from paying Dr. Finger’s bills 
until they have been approved by the Board of Education, 
and ordering that “ the defendant Charlotte-Mecklenburg 
Board of Education and its agents, servants and employees 
be and they hereby are enjoined and restrained from ex­

Notification and Request for Designation of
Three-Judge Court



3a

pending any money from tax or other public funds for 
the purpose of purchasing or renting any motor vehicles, 
or operating or maintaining such, for the purpose of invol­
untarily transporting students in the Charlotte-Mecklen- 
burg School System from one school to another and from 
one district to another district.”

The complaint, the amended complaint and the two or­
ders of Judge McLean dated February 12, 1970, are at­
tached hereto as Exhibit D.

The Governor of North Carolina has made a public state­
ment, Exhibit E, and has written a letter to the Department 
of Administration, Exhibit F.

The State Superintendent of Public Instruction, a party 
to this case, has made a public statement, Exhibit G.

Reports received from the School Board on February 12, 
1970 and February 19, 1970 fail to mention Judge McLean’s 
order, and to indicate that the Board have appealed or 
intend to appeal Judge McLean’s order; and these reports 
also reveal no action by the Board or school staff addressed 
to the transportation problem. It appears that whether the 
action of Judge McLean and the other state officials do 
or do not directly conflict with this court’s orders, the 
practical effect of those actions is or may be to delay or 
defeat compliance with the orders of this United States 
Court.

The plaintiffs have filed a motion to make additional 
parties, and have requested this court to enter orders dis­
solving Judge McLean’s restraining orders and directing 
the Governor, the State Department of Instruction and the 
“ Concerned Parents Association” and their attorneys and 
others not to interfere further with the compliance of the 
School Board with the orders of this court.

Some of the issues raised by this situation may involve

Notification and Request for Designation of
Three-Judge Court



4a

the constitutionality of a state statute and others may be 
matters, cognizable by a single judge.

It appearing to the court that pursuant to Title 28, 
U.S.C.A., this matter should be heard and determined by 
a district court of three judges.

Now, T herefore, it is respectfully requested that the 
Chief Judge of the United States Court of Appeals for the 
Fourth Circuit designate two other judges, at least one of 
whom shall be a circuit judge, to serve with the under­
signed district judge as members of the court to hear and 
determine the action.

This the 19th day of February, 1970.

/ s /  J am es B. M cM illan  
James B. McMillan 

United States District Judge

Notification and Request for Designation of
Three-Judge Court



oa

(Opinion and Order of December 1, 1969)

(See Appendix in No. 281, p. 698a)

Exhibit A

Exhibit B

(Opinion and Order of February 5, 1970)

(See Appendix in No. 281, p. 819a)

Exhibit C

(Order dated December 2, 1969)

(See Appendix in No. 281, p. 717a)



6a

(Complaint)

(Filed January 30, 1970)

S tate of N orth  Carolina 

C ounty  of M ecklenburg  

I n  th e  General C ourt of J ustice 

S uperior C ourt D ivision  

70-CVS-1077

Exhibit D

T om B. H arris, G. D on R oberson, A. B reece B reland , 
J ames M. P ostell, W illiam  E. R orie, J r ., Chalm ers  R. 
Carr, and R obert T . W ilson ,

Plaintiffs,
— vs.-

W illiam  C. S elf , Superintendent of Charlotte-Mecklenburg 
County Schools,

—and—

J u an ita  I. Cadieu , Treasurer of Mecklenburg County,
Defendants.

The plaintiffs, complaining of the defendants, allege and 
say:

1. That the plaintiffs, and each of them, are citizens, 
residents and taxpayers of Mecklenburg County, North 
Carolina, and the plaintiffs bring this action on behalf of 
all taxpayers of Mecklenburg County, North Carolina.

2. That the defendant, William C. Self, has heretofore 
been duly appointed as Superintendent of the Charlotte-



7a

Mecklenburg Schools by the Charlotte-Mecklenburg Board 
of Education and is, and has at all times herein in ques­
tion, been acting in said capacity.

3. That the defendant, Juanita I. Cadieu, is the duly 
elected and qualified Treasurer of Mecklenburg County, 
North Carolina, and is, and has at all times herein in 
question, been acting in said capacity.

4. That the plaintiffs are informed, believe and there­
fore allege that the Charlotte-Mecklenburg Board of Edu­
cation did on or before June 15, 1969, present a request to 
the Mecklenburg County Board of Commissioners for 
funds to operate the public schools of Mecklenburg County, 
North Carolina, for the fiscal year 1969-1970, which request 
was in the form of a Budget setting forth specific items 
of expenditure, and all as required and provided by the 
North Carolina General Statutes.

5. That the plaintiffs are informed, believe and there­
fore allege that subsequent thereto, and on or before Au­
gust 1, 1969, the Tax Levying Authority of Mecklenburg 
County, North Carolina, to wit, Mecklenburg County Board 
of Commissioners, did approve a Budget for specific items 
of expenditure, all as required and in accordance with the 
North Carolina General Statutes.

6. That the Tax Levying Authority, to wit, Mecklenburg 
County Board of Commissioners, did provide the public 
funds for the items of expenditure approved in the Budget, 
for the operation of the public schools of Mecklenburg 
County, North Carolina, for the fiscal year 1969-1970.

7. That the plaintiffs are informed, believe and there­
fore allege that on or about December 31, 1969, or shortly

Exhibit D—Complaint



8a

thereafter, the defendant Superintendent, William C, Self, 
approved and signed a voucher authorizing payment of pub­
lic funds to Professor John A. Finger, Jr. in the sum of 
$1,967.75, covering an alleged item of expenditure for a 
period from December 2, 1969 through December 31, 1969.

8. That the plaintiffs are informed, believe and there­
fore allege that the defendant Treasurer, Juanita I. Cadieu, 
did honor the voucher approved and signed by the defen­
dant Superintendent, William C. Self, and did accordingly 
pay the sum of $1,967.75 from tax and other public funds 
to the said Professor John A. Finger, Jr.

9. That since the initial approval of the 1969-1970 
Budget, the Charlotte-Mecklenburg Board of Education has 
made only one request to the Tax Levying Authority, which 
was about November, 1969, for an additional item of ex­
penditure, over and above the approved Budget, which 
request was for compensatory education, which request was 
approved, and other than that one request, no necessity 
has been shown nor request made to the Tax Levying Au­
thority to add items of expenditure which were not initially 
included in the said Budget.

10. That the said payment of $1,967.75 to Professor 
John A. Finger, Jr. was not for an item of expenditure 
included in the 1969-1970 Budget presented by the Char­
lotte-Mecklenburg Board of Education and approved by the 
Mecklenburg County Board of Commissioners, nor was it 
included in the one other additional item of expenditure 
requested and approved about November, 1969, for com­
pensatory education.

Exhibit D—Complaint



9a

11. That the act of the defendant Superintendent, W il­
liam C. Self, in approving and signing a voucher authoriz­
ing payment of taxes and other public funds to Professor 
John A. Finger, Jr. was highly improper and illegal and 
in violation of the General Statutes of North Carolina and 
the Constitution of North Carolina.

12. That moreover and in addition thereto, the plaintiffs 
are informed, believe and therefore allege that the said 
Professor John A. Finger, Jr. has never been employed by 
the Charlotte-Mecklenburg Board of Education, that the 
Charlotte-Mecklenburg Board of Education has never en­
tered into a contract with the said Professor John A. 
Finger, Jr. for the rendering of any services by him to 
the Charlotte-Mecklenburg Board of Education nor for 
the payment of any funds to him nor authorized or re­
quested such, and the said Professor John A. Finger, Jr. 
has never rendered any public service to the Charlotte- 
Mecklenburg Board of Education nor to the citizens and 
taxpayers of Mecklenburg County, North Carolina, and 
such payment or further payments are tantamount to ex­
clusive or separate emoluments or privileges from the com­
munity and in addition any voluntary acts on the part of 
Professor John A. Finger, Jr. were and are highly unnec­
essary to the operation of a public school system in Mecklen­
burg County, North Carolina, and all of which is highly 
improper and illegal and in direct violation of the North 
Carolina General Statutes and in violation of Section 7 of 
Article I, Section 23 of Article I, Section 38 of Article I, 
Section 6 of Article VII, Section 7 of Article VII, Section 
5 of Article IX, and other provisions of the Constitution 
of North Carolina and the Constitution of the United States 
of America.

Exhibit I)—Complaint



10a

13. That the act of the defendant Treasurer, Juanita I. 
Cadieu, in honoring the aforesaid voucher approved and 
signed by the defendant Superintendent, William C. Self, 
is likewise unlawful for the reasons heretofore set forth.

14. That the plaintiffs are informed, believe and there­
fore allege that the defendant Superintendent, William C. 
Self, is imminently about to approve and sign another 
voucher or vouchers authorizing pajunent of tax or other 
public funds to the said Professor John A. Finger, Jr. for 
similar illegal items of expenditures, and unless the de­
fendant Superintendent, together with the defendant Trea­
surer, are enjoined from making such payment or pay­
ments, the plaintiffs and all other taxpayers and citizens 
and residents of Mecklenburg County and State of North 
Carolina will be irreparably damaged.

15. That the plaintiff are informed, believe and therefore 
allege that the defendants are not solvent to the extent of 
being able to respond or make restitution with reference 
to the extent and amount of the aforesaid illegal payment 
that has been made and those that are about to be made 
and further that the recipient of said illegal payments is 
a non-resident of North Carolina and is not subject to the 
jurisdiction of the Courts of this State and that the plain­
tiffs do not have an adequate remedy at law and unless 
the defendants are restrained and enjoined from making 
further such illegal payments from tax and other public 
funds, which they are threatening to do and are imminently 
about to do, then the plaintiffs and all other similarly sit­
uated citizens, residents and taxpayers of Mecklenburg 
County, North Carolina, will suffer immediate and irrep­
arable damage.

Exhibit D—Complaint



11a

W h e r e f o r e , the plaintiffs respectfully pray the Court:

1. That a temporary restraining order and injunction 
be issued against the defendants, and each of them, and 
their agents and servants, enjoining and restraining them 
from approving and signing any voucher or vouchers au­
thorizing payment of tax or other public funds to Pro­
fessor John A. Finger, Jr. and further restraining and 
enjoining them from making any payment to Professor 
John A. Finger, Jr. from tax or other public funds of 
Mecklenburg County and the State of North Carolina, pend­
ing the further orders of this Court;

2. That the defendants, and each of them, be directed 
and ordered to be and appear before a Judge of the Su­
perior Court residing in or assigned to hold and preside 
over the Courts of the 26th Judicial District of North Car­
olina and show cause, if any they have, why the plaintiffs 
motion should not be allowed to the affect that a prelim­
inary injuction be continued in effect, pending the final 
determination of this action.

3. That the Complaint be accepted and treated as an 
affidavit in this cause;

4. That the defendants, and each of them, be perma­
nently enjoined and restrained from approving and signing 
any voucher or vouchers authorizing payment of tax or 
other public funds to Professor John A. Finger, Jr. and 
further enjoining them from making any payment to Pro­
fessor John A. Finger, Jr. from tax or other public funds 
of Mecklenburg County and the State of North Carolina;

Exhibit D—Complaint



12a

5. The plaintiffs demand a jury trial on all issues aris­
ing in this cause;

6. For such other and further relief as the plaintiffs 
may he entitled to in the premises.

/ s /  W illiam  H. B ooe 
William H. Booe 
Charlotte, North Carolina 28202 
Attorney for the Plaintiffs

Exhibit D—Complaint

S tate of N orth  Carolina 
C ounty  of M ecklenburg

T om B. H arris, G. D on R oberson, A. B reece B reland , 
J ames M. P ostell, W illiam  E. R orie, J r ., C halm ers R. 
Carr, and R obert T . W ilson , first bein g  du ly  sw orn , depose 
and sa y :

That they are the plaintiffs in the above-entitled action 
and that they have read the foregoing C om plain t  and know 
the contents thereof; that the same is true of their own 
knowledge, except as to those matters and things therein 
stated upon information and belief, and as to those mat­
ters and things, they believe them to be true.



13a

/ s /  T om B. H arris 
Tom B. Harris

/ s /  G. Don B oberson 
G. Don Boberson

/ s /  A. B reece B reland 
A. Breece Brelind

/ s /  J ames M. P ostell 
James M. Postell

/ s /  W illiam E. B orie, J r. 
William E. Borie, Jr.

/ s /  Chalmers B. Carr 
Chalmers B. Carr

/ s /  B obert T. W ilson 
Bobert T. Wilson

Sworn to and subscribed before me
this 29th day of January, 1970.
(Illegible)

Notary Public

My Commission Expires: 4-13-71

Exhibit D—Complaint



14a

(Amended Complaint)

(Filed February 12, 1970)

The Plaintiffs, complaining of the defendants, for a first 
cause of action, allege and say:

That Paragraphs 1 through 15 inclusive, as alleged and 
set forth in this complaint filed herein are reasserted and 
alleged and incorporated herein by reference as fully and 
completely as though expressly set forth herein.

T h e  P lain tiffs , Com plain in g  of th e  D efendants, for a 
S econd Cause of A ction , A llege and S a t :

1. That the plaintiffs, and each of them, are citizens, res­
idents and taxpayers of Mecklenburg County, North Car­
olina, and the plaintiffs bring this action on behalf of all 
taxpayers of Mecklenburg County, North Carolina.

2. That the defendant, Charlotte-Mecklenburg Board of 
Education is a body corporate, and located in Mecklenburg 
County, North Carolina.

3. That the plaintiffs are informed, believe and therefore 
allege that the defendant Board is about to expend large 
sums of money from tax and other public funds for the 
purpose of purchasing buses and other such motor vehicles 
and for renting such vehicles and for the maintenance, up­
keep and operation of such vehicles for the purpose of in­
voluntarily transporting pupils and students in the Char­
lotte-Mecklenburg School system for the purpose of ul­
timately creating a racial balance in the Charlotte-Mecklen­
burg School system.

4. That the General Assembly of North Carolina has 
heretofore duly enacted Section 176.1 of Article 21, Chap­
ter 115 of the General Statutes of North Carolina which is



15a

presently in effect and in part expressly provides: “ No 
student shall be assigned or compelled to attend any school 
on account of race, creed, color or national origin, or for 
the purpose of creating a balance or ratio of race, religion 
or national origins. Involuntary bussing of students in 
contravention of this article is prohibited, and public funds 
shall not be used for any such bussing.”

5. That no funds have heretofore been appropriated by 
the tax levying authority for such purposes and in addition 
thereto the aforesaid acts on the part of the defendant 
Board are in direct violation of North Carolina General 
Statutes 115-176.1 and are unlawful.

6. That the plaintiffs are informed, believe and there­
fore allege that the defendant Board is imminently about 
to proceed with the expenditure of said funds for the pur­
poses heretofore set forth and unless said defendant is en­
joined therefrom the plaintiffs and all other taxpayers and 
citizens and residents of Mecklenburg County and State of 
North Carolina will be irreparably damaged.

7. That the plaintiffs are informed, believe and there­
fore allege that the defendant Board is not solvent to the 
extent of being able to respond or make restitution with 
reference to the extent and amount of the aforesaid illegal 
expenditures that are about to be made and that the plain­
tiffs do not have an adequate remedy at law and unless the 
defendant is restrained and enjoined from making such il­
legal expenditures from tax and other public funds, which 
the defendant is threatening to do and is imminently about 
to do, then the plaintiffs and all other similarly situated 
citizens, residents and taxpayers of Mecklenburg County, 
North Carolina, will suffer immediate and irreparable dam­
age.

Exhibit D—Amended Complaint



16a

W herefore, the plaintiffs respectfully pray the Court:

1. That a temporary restraining order and injunction 
be issued against the defendants, and each of them, and 
their agents and servants, enjoining and restraining them 
from approving and signing any voucher or vouchers au­
thorizing payment of tax or other public funds to Professor 
John A. Finger, Jr. and further restraining and enjoining 
them from making any payments to Professor John A. 
Finger, Jr. from tax or other public funds of Mecklenburg 
County and the State of North Carolina, pending the fur­
ther orders of this Court;

2. That the defendants, and each of them, he directed 
and ordered to be and appear before a Judge of the Su­
perior Court residing in or assigned to hold and preside 
over the Courts of the 26th Judicial District of North Car­
olina and show cause, if any they have, why the plaintiffs 
motion should not be allowed to the affect that a preliminary 
injunction be continued in effect, pending the final determi­
nation of this action;

3. That the defendant, and each of them, be permanently 
enjoined and restrained from approving and signing any 
voucher or vouchers authorizing payment of tax or other 
public funds to Professor John A. Finger, Jr. and further 
enjoining them from making any payment to Professor 
John A. Finger, Jr. from tax or other public funds of 
Mecklenburg County and the State of North Carolina;

4. That a temporary restraining order and injunction 
be issued against the defendant Charlotte-Mecklenburg 
School Board, its agents and servants, enjoining and re­
straining them from expending any money from tax or other

Exhibit D—Amended Complaint



17a

public funds for the purpose of purchasing or renting any 
motor vehicles, or operating or maintaining such, for the 
purpose of involuntarily transporting students in the Char- 
lotte-Mecklenburg School System from one school to another 
and from one district to another district.

5. That the defendant Board he directed and ordered to 
he and appear before a Judge residing in or assigned to 
hold the Courts of the 26th Judicial District of North Car­
olina and show cause why a preliminary injunction should 
not be continued in effect, pending the final determination 
of this action;

6. That the defendant Board, its agents and servants be 
permanently enjoined and restrained from expending any 
money from tax or other public funds for the purpose of 
purchasing or renting any motor vehicles, or operating or 
maintaining such, for the purpose of involuntarily trans­
porting students in the Charlotte-Mecklenburg School Sys­
tem from one school to another and from one district to 
another district;

7. That the amended complaint be accepted and treated 
as an affidavit in this cause;

8. The plaintiffs demand a jury trial on all issues aris­
ing in this cause;

9. For such other and further relief as the plaintiffs 
may be entitled to in the premises.

/ s /  W illiam  H. B ooe 
510-14 Law Building 
Charlotte, North Carolina 28202 
Attorney for the Plaintiffs

Exhibit D—Amended Complaint



18a

S tate oe N orth  Carolina 
C ounty  of M ecklenburg

T om B. H arris, being first duly sworn, deposes and says: 
That he is one of the plain tiffs in the above-entitled ac­

tion and that he has read the foregoing A mended Co m plain t  
and knows the contents thereof; that the same is true of 
his own knowledge, except as to those matters and things 
therein stated upon information and belief, and as to those 
matters and things, he believes them to be true.

/ s /  T om B. H arris 
Tom B. Harris

Sworn to and subscribed before me 
this 12th day of February, 1970.

(Illegible)
Notary Public

My Commission Expires: 4-13-71

Exhibit D—Amended Complaint



19a

(Order)
(Filed on February 12, 1970)

T h is  C ause coming on to be heard and being heard be­
fore the undersigned Judge presiding over the February 
9, 1970, Schedule “L” Term of Superior Court of Mecklen­
burg County, North Carolina, upon the application and 
motion of the plaintiff, Tom B. Harris, for a restraining 
order and the Court treating the Amended Complaint filed 
in this action as an affidavit and for the purpose of this 
order, the Court hereby finds the facts to be as alleged 
and set forth in the Amended Complaint and further finds 
the plaintiffs are entitled to a temporary restraining order;

Now, T herefore, I t I s Ordered, A djudged and D ecreed 
that the plaintiff, Tom B. Harris, execute and file with the 
Clerk an undertaking in the amount of $1,000.00 running to 
the defendant Board, conditioned as provided by law and 
upon the giving of such undertaking and approval by the 
Clerk, the defendant Charlotte-Mecklenburg Board of Ed­
ucation and its agents, servants and employees be and they 
hereby are enjoined and restrained from expending any 
money from tax or other public funds for the purpose of 
purchasing or renting any motor vehicles, or operating or 
maintaining such, for the purpose of involuntarily trans­
porting students in the Charlotte-Mecklenburg School Sys­
tem from one school to another and from one district to 
another district.

I t I s F u rth er  Ordered, A djudged and D ecreed that the 
defendant Charlotte-Mecklenburg Board of Education be 
and it hereby is directed and ordered to be and appear be­
fore the Judge assigned and presiding over the Civil Term 
of Superior Court of Mecklenburg County, North Carolina, 
Wednesday, the 4th day of March, 1970, at 2:00 o’clock



20a

Exhibit- D—Order

P.M., in the Mecklenburg County Court House, Charlotte, 
North Carolina, and show cause, if any it may have, why 
this restraining order and a preliminary injunction should 
not be continued in effect pending a final determination of 
this cause.

I t I s F u rth er  Ordered that the Sheriff of Mecklenburg 
County serve a copy of this Order on the defendant, Char- 
lotte-Meeklenburg Board of Education, and make return 
as by law provided.

This 12th day of February, 1970.

/ s /  W illiam  K. McLean 
Judge Presiding



21a

(O rder)

(Filed on February 12, 1970)

T h is  Cause coming on to be heard and being heard be­
fore the undersigned Judge presiding over the Schedule 
“D” Civil Term of the Superior Court of Mecklenburg 
County, North Carolina, upon an order, which appears of 
record, directing the defendant, William C. Self, Superin­
tendent of Charlotte-Mecklenburg Schools, to be and appear 
and show cause, if any he might have, why the restraining 
order, heretofore entered in this cause, should not be con­
tinued in effect pending a final determination hereof; W il­
liam H. Booe appearing for the plaintiffs and William J. 
Waggoner appearing for the defendant Superintendent;

A nd from the evidence presented, and for the purpose 
of this order, the Court finds the facts to be as alleged to 
be in the complaint; the Court further finds that the item 
of expenditure in question to Professor John A. Finger, Jr. 
was not included in the 1969-70 Budget and has never been 
officially considered by the Charlotte-Mecklenburg Board of 
Education, and the Court further finds that the General 
Statutes of North Carolina contain a procedure for con­
sideration by the Board of items of expenditure which 
arise subsequent to the adoption of the Budget.

Now, T hebeeore, I t I s Ordered, A djudged and D ecreed 
that the defendant, William C. Self, Superintendent of 
Charlotte-Mecklenburg Schools, and his agents, servants 
and employees, be and they hereby are restrained and en­
joined from approving and signing any voucher or order 
authorizing or making any payment of tax or other public 
funds to Professor John A. Finger, Jr., until such time as



22a

the Charlotte-Mecklenburg Board of Education approves 
the same.

The Court retains jurisdiction of this matter pending a 
final determination hereof.

This, the 12th day of February, 1970.

/ s /  W. K. McLean 
Judge Presiding

Exhibit D—Order



23a

Exhibit E
(Statement by Governor Scott)

From: Governor Bob Scott 
State Capitol/Raleigh 
829-3991

FOR IMMEDIATE RELEASE

It has been called to my attention that the last session 
of the General Assembly enacted GS 115-176.1, which 
clearly states and provides that no public funds shall be 
used for involuntary bussing to achieve racial balance in 
the public schools of North Carolina. The law states: 
“ Involuntary bussing of students in contravention of this 
Article is prohibited, and public funds shall not be used 
for any such bussing.”

I have taken an oath to uphold the laws of North Caro­
lina, and until this statute is declared unconstitutional, I 
shall not authorize the expenditure of any funds for such 
involuntary bussing.

I have always been against the bussing of students. I 
think it is disruptive. It destroys the neighborhood school 
concept.

The irony of all this is that nobody wants bussing. 
Blacks don’t want it; Whites don’t want it; teachers don’t 
want it; parents don’t want it; students don’t want it— 
nobody wants it. Everyone wants freedom of choice to 
attend their neighborhood school.

2/11/70



24a

Exhibit E—Statement by Governor Scott 

S essions L aws—1969
CHAPTER 1274

In the General Assembly read three times and ratified, 
this the 2nd day of July, 1969.

H. B. 990 CHAPTER 1274

A n A ct to P bohibit  the  N eighborhood S chool S ystem  
and to P rohibit  th e  I nvoluntary  B ussing  of P upils 
O utside th e  D istrict in  W h ic h  T h ey  R eside.

The General Assembly of North Carolina do enact:

Section 1. There is hereby created a new Section of 
Chapter 115 of the General Statutes to be codified as G.S. 
115-176.1 and to read as follows:

“ G.S. 115-176.1. Assignment of pupils based on race, 
creed, color or national origin prohibited. No person shall 
be refused admission into or be excluded from any public 
school in this State on account of race, creed, color or na­
tional origin. No school attendance district or zone shall 
be drawn for the purpose of segregating persons of var­
ious races, creeds, colors or national origins from the 
community.

Where administrative units have divided the geographic 
area into attendance districts or zones, pupils shall be as­
signed to schools within such attendance districts; pro­
vided, however, that the board of education of an ad­
ministrative unit may assign any pupil to a school out­
side of such attendance district or zone in order that such 
pupil may attend a school of a specialized kind including 
but not limited to a vocational school or school operated 
for, or operating programs for, pupils mentally or phy­
sically handicapped, or for any other reason which the



25a

board of education in its sole discretion deems sufficient. 
No student shall be assigned or compelled to attend any 
school on account of race, creed, color or national origin, 
or for the purpose of creating a balance or ratio of race, 
religion or national origins. Involuntary bussing of stu­
dents in contravention of this Article is prohibited, and 
public funds shall not be used for any such bussing.

The provisions of this Article shall not apply to a tem­
porary assignment due to the unsuitability of a school 
for its intended purpose nor to any assignment or trans­
fer necessitated by overcrowded conditions or other cir­
cumstances which, in the sole discretion of the School 
Board, require assignment or reassignment.

The provisions of this Article shall not apply to an ap­
plication for the assignment or re-assignment by the par­
ent, guardian or person standing in loco parentis of any 
pupil or to any assignment made pursuant to a choice 
made by any pupil who is eligible to make such choice pur­
suant. to the provisions of a freedom of choice plan vol­
untarily adopted by the board of education or an adminis­
trative unit.”

Sec. 2. All laws and clauses of laws in conflict with this 
Act are hereby repealed.

Sec. 3. If part of the Act is held to be in violation of 
the Constitution of the United States or North Carolina, 
such part shall be severed and the remainder shall re­
main in full force and effect.

Sec. 4. This Act shall be in full force and effect upon its 
ratification.

In the General Assembly read three times and ratified, 
this 2nd day of July, 1969.

Exhibit E—Statement by Governor Scott



26a

Exhibit F
(Letter by Governor Scott)

[ S e a l ]

S tate oe N orth Carolina 
G overnor’s Office 

R aleigh  27602
ROBERT W. SCOTT 

GOVERNOR
February 12, 1970

Dr. W. L. Turner 
Director
Department of Administration 
Raleigh, North Carolina

Dear Dr. Turner:

Chapter 1274, Session Laws of 1969, created a new sec­
tion of Chapter 115 of the General Statutes, GS 115-176.1, 
which provides in part: “No student shall be assigned or 
compelled to attend any school on account of race, creed, 
color or national origin, or for the purpose of creating a 
balance or ratio of race, religion or national origins. Invol­
untary bussing of studens in contravention of this Article 
is prohibited, and public funds shall not be used for any 
such bussing.”

No funds will be expended in violation of this Statute. 
No authorization will be given for use of any other funds 
to provide bussing to achieve school attendance for the 
purpose of creating a balance or ratio, religion or national 
origins.

Sincerely,

/ s /  R obert W . S cott 
Robert W. Scott

cc: Dr. Craig Phillips 
Dr. Dallas Herring 
Mr. A. C. Davis 
Mr. Tom White



27a

Exhibit G
(Statement by Mr. Craig Phillips)

This is the text of Dr. Craig .Phillips’ statement, handed 
out the same day:

“ The governor has made an important statement today 
in clarifying his stand on the proposed ‘involuntary buss­
ing’ of children in North Carolina schools, especially as 
currently ordered by the court for the Charlotte-Mecklen- 
burg schools, to be initially effective April 1, 1970. I thor­
oughly concur with his conclusion that until Gf.S. 115-176.1, 
concerned with involuntary bussing and the use of public 
funds for such purpose, is declared unconstitutional he 
cannot authorize expenditure of funds for such involuntary 
bussing which might be undertaken in the future.

“ To my knowledge, no such ‘involuntary bussing’ now 
exists in North Carolina. The mandate of the court in 
the Charlotte-Mecklenburg case and the subsequent protest 
response of many white and some black parents does indi­
cate the possibility that an issue could arise on April 1, 
1970 which would test the validity of the current North 
Carolina law on the matter.

“Most responsible educators are greatly concerned about 
the movement toward elimination of the community school 
as a recognizable educational institution. I firmly believe 
that the continuation of the community school concept is 
vital to the stability and effectiveness of our public school 
system in North Carolina, especially as it pertains to ele­
mentary children.

“I do not believe that the type of bussing of students as 
is being ordered in Charlotte-Mecklenburg is in the best 
interests of the youngsters directly involved, the Charlotte- 
Mecklenburg community or the State of North Carolina.



28a

“I do believe that North Carolina has made great prog­
ress toward the physical development statewide of unitary 
school systems (probably best defined most recently in the 
decision rendered by the Fifth District Court in its Georgia 
ruling) and we are ready to get on with the task of pro­
viding the kind of new, effective, educational programs so 
bady needed for all the boys and girls in the 152 school 
systems over the state.

“We must not defy the law. We can not hold to a long 
departed notion that “ freedom of choice” alone will pro­
vide for unitary schools. We must find, within the frame­
work of carefully considered legal structure, ways to forge 
ahead with a strong movement by citizens and professionals 
alike to reach levels of educational achievement not yet 
reached in North Carolina. The September 1970 establish­
ment in all school systems of duly integrated faculties in 
a basic ratio of white and non-white in the community 
served; a constant, diligent effort on the part of everyone 
to find ways to achieve a reasonable balance of white and 
non-white youngsters in the school population (except by 
‘involuntary bussing’ to achieve such mixing) ; strong, im­
mediate community movement toward the eventual elimi­
nation of segregated housing, especially in urban areas 
and in a variety of planned activities geared toward closer 
regular communication between whites and non-whites 
leading to greater mutual understanding—all of these are 
necessary if we are to regain stability and assure quality 
in all our schools for all our children in North Carolina.”

Exhibit G—Statement by Mr. Craig Phillips



29a

BRIEF APPENDIX B

Opinion and Order of Three-Jndge District Court in 
Alabama v. United States, et ah, S.D. Ala.,

No. 5935-70-P, June 26, 1970

I n T h e  U nited S tates D istrict C ourt for th e  S outhern  
D istrict  oe A labam a , S o uth ern  D ivision

S tate of A labam a , M acD onald G allion  as A ttorney 
G eneral , S tate of A labam a ,

Plaintiffs,
versus

U nited  S tates of A merica, C harles S. W h ite -S pu n n er , 
as U nited S tates D istrict A ttorney , Ollie  M ae D avis 
as M other and N ext F riend of B etty  A n n  D avis, and 
J ames A llen  D avis, J erris L eonard, as C h ief  of Civil  
B ights  D ivision , D epartm ent  of J u stice , and R obert 
H . F in c h , as S ecretary of H ealth , E ducation  and 
W elfare, and B irdie M ae D avis,

Defendants.

Before Ge w in , Circuit Judge, and T homas and P it t m a n , 
District Judges.

P er C u r ia m :

A  1970 Special Session of the Alabama Legislature en­
acted a statute entitled, “An Act, To Prevent Discrimina­
tion on Account of Race, Creed or National Origin in Con­
nection with the Education of the Children of the State of 
Alabama.” 1 This Act was approved by the Governor of 
Alabama on March 4, 1970. In the present action the State

1 The text of the statute is quoted infra.



30a

of Alabama seeks a declaration that this enactment is con­
stitutional. It also seeks to have this court modify prior 
judgments to conform to the strictures of this legislation, 
and to enjoin certain federal officers to conform their ac­
tions to its provisions.

The defendants in the present action are the parties 
plaintiff in Davis v. Board of School Commissioners of Mo­
bile County, Alabama, S.D. Ala., Civil No. 3003-63, and 
certain officers of the United States. On 31 January 1970, 
this court entered an order in the Davis case requiring 
forthwith implementation of a desegregation plan for the 
Mobile schools. Following the adoption of the Act in ques­
tion, the Board of School Commissioners hy resolution in­
structed the school superintendent and staff to abide hy the 
Act and to take no further steps in implementing the court- 
approved plan. The plaintiffs in the Davis case then sought 
leave to add the Governor and Attorney General of Alabama 
as parties defendant and to amend their complaint to seek 
a declaration that the subject Act is unconstitutional and 
an injunction against compliance with it.

Following a hearing, this court denied the plaintiff’s mo­
tion. In his order Judge Thomas, discussing the subject 
Act, stated:

In 1809, Chief Justice Marshall said: “ If the legisla­
tors of the several states may, at will, annul the judg­
ments of the Courts of the United States, and destroy 
the rights acquired under those judgments, the Con­
stitution itself becomes a solemn mockery; and the 
nation is deprived of the means of enforcing its laws 
by the instrumentality of its own tribunals.”

The School Board is required to follow the order of 
this Court of January 31, 1970, as amended, and if the

Brief Appendix B
Opinion and Order of Three-Judge District Court



31a

same is not followed within three days from this date, 
a fine of $1,000 per day is hereby assessed for each 
such day, against each member of the Board of School 
Commissioners.

The plaintiffs in this case, on the 10th day of May 
1970, filed a petition requesting this Court to declare 
the Freedom of Choice Act of the Legislature of the 
State of Alabama unconstitutional. This case is not 
the proper vehicle in which to test the constitutionality 
of said Act. The said petition is therefore dismissed.

The State of Alabama through its Attorney General then 
instituted the present action joining as defendants the 
plaintiffs in the Davis case, the Chief of the Civil Rights 
Division of the Justice Department, Charles S. White- 
Spunner, as United States District Attorney, and the Sec­
retary of Health, Education and Welfare. The present 
three-judge court was constituted by the Chief Judge of 
this circuit pursuant to the request of Judge Pittman, be­
fore whom this action was originally filed. In his order des­
ignating the panel, the Chief Judge states:

This designation and composition of the three-Judge 
court is not a prejudgment, express or implied, as to 
whether this is properly a case for a three-Judge rather 
than a one-Judge court. This is a matter best deter­
mined by the Three-Judge Court as this enables a 
simultaneous appeal to the Court of Appeals and to 
the Supreme Court without delay, awkwardness, and 
administrative insufficiency of a proceeding by way of 
mandamus from either the Court of Appeals, the Su­
preme Court, or both, directed against the Chief Judge 
of the Circuit, the presiding District Judge, or both.

Brief Appendix B
Opinion and Order of Three-Judge District Court



32a

In California Water Service Co. v. Redding,2 the Su­
preme Court observed that the statutory requirement of a 
three-judge court is not applicable unless the constitutional 
claim regarding a state statute or administrative order is 
substantial. The Court then stated: “It is therefore the 
duty of a district judge, to whom an application is made 
for an injunction restraining the enforcement of a state 
statute or order is made, to scrutinize the bill of complaint 
to ascertain whether a substantial federal question is pre­
sented. . . .” 3 While “ [tjheoretically, this solo travail 
should be the indispensable first step,” 4 such a procedure 
has often led to the impenetrable judicial snarl described 
in Jackson v. Choate.5 Accordingly, it is now the preferred 
practice in the Fifth Circuit, in all but exceptional cases, 
to initially constitute the three-judge court and allow it to 
determine the issue of substantiality and the other issues 
in the case.6 The procedure, envisioned in Jackson, tends 
to assure that the decision by the district court will be the 
final trial court action in the case. Regardless of the proper 
appellate course, the Court of Appeals or the Supreme 
Court will have the entire case for determination.7

In light of this procedure, the duty, described in Red­
ding, to determine the substantiality of the federal question 
devolves upon the present panel. It is an elementary prin­
ciple of law that a federal court has jurisdiction of a case,

2 304 U.S. 252 (1938). See Bailey v. Patterson, 369 TJ.S. 7 (1962).
3 304 U.S. at 254.
4 Jackson v. Choate, 404 F.2d 910, 912 (5th Cir. 1968).
5 404 F.2d 910 (5th Cir. 1968).
6 Id.
7 See Hargrave v. McKinney, 302 F. Supp. 1381 (M.D. Fla. 

1969); Rodriguez v. Brown, 299 F. Supp. 479 (W.D. Tex. 1969).

Brief Appendix B
Opinion and Order of Three-Judge District Court



33a

initially, to determine whether it has jurisdiction to ulti­
mately decide the merits of the ease.8 As Chief Judge 
Brown observed in Jackson, “Frequently in resolving the 
threshold issue of substantiality—i.e., the need for a 3- 
Judge Court—the Court has to go to the very merits of 
the case.” 9 Such is the case here. After a careful study of 
the complaint and following a hearing on the question, we 
are of the unanimous opinion that the State of Alabama’s 
claim does not present a substantial federal question inas­
much as it is foreclosed by prior decisions of the United 
States Supreme Court.10

The Act in question provides:
Enrolled, an Act, To P revent D iscrim ination  on A c­
count of R ace, C olor, C reed or N ational  Origin  in  
C onnection  W it h  th e  E ducation  op th e  C hildren  
oe THE S tate op A labam a . B e it  E nacted by th e  L egis­
lature op A l a b a m a : Section 1. No person shall be 
refused admission into or be excluded from any public 
school in the State of Alabama on account of race, 
creed, color or national origin. Section 2. No student 
shall be assigned or compelled to attend any school 
on account of race, creed, color or national origin, 
or for the purpose of achieving equality in attendance 
or increased attendance or reduced attendance, at any 
school, of persons of one or more particular races, 
creeds, colors or national origins; and no school dis­
trict, school zone or attendance unit, by whatever name

8 C. Wright, Federal Courts § 16 at 50-53 (2d ed. 1970).
9 404 F.2d at 913.
10Bailey v. Patterson, 369 U.S. 7 (1962) ; California Water Ser­

vice Co. v. Redding, 304 U.S. 252 (1938); Potts v. Flax, 313 F.2d 
284 (5th Cir. 1963).

Brief Appendix B
Opinion and Order of Three-Judge District Court



34a

known, shall be established, re-organized or main­
tained for any such purpose, provided that nothing 
contained in this section shall prevent the assignment 
of a pupil in the manner requested or authorized by 
his parents or guardian, and further provided that 
nothing in this section shall be deemed to affect, in 
any way, the right of a religious or denominational 
educational institution to select its pupils exclusively 
or primarily from members of such religion or denom­
ination or from giving preference to such selection 
to such members or to make such selection to its pupils 
as is calculated to promote the religious principle for 
which it is established. Section 3. The provisions of 
this Act are severable. If any part of the Act is de­
clared invalid or unconstitutional, such declaration 
shall not affect the part which remains. Section 4. 
All laws and parts of laws in conflict herewith are 
hereby repealed. Section 5. This Act shall become 
effective upon its passage and approval by the Gov­
ernor, or upon its otherwise becoming a law.

The constitutional question involves only Section 2 of 
the Act. This section purports to make school administra­
tors neutral on the question of desegregation and limits 
their tools for the accomplishment of this constitutional 
obligation to “ freedom-of-ehoice” plans. It is clear, indeed, 
it is insisted by the State of Alabama, that such a limita­
tion is in direct conflict with numerous desegregation plans 
approved and ordered by federal courts throughout 
Alabama.11 11

11 Paragraph VI of the complaint provides:
It is further alleged by plaintiffs that the said Act if con-

Brief Appendix B
Opinion and Order of Three-Judge District Court



35a

An unwaivering line of Supreme Court decisions make 
it clear that more than administrative neutrality is constitu­
tionally required. “Under explicit holdings of this Court 
the obligation of every school district is to terminate dual 
school systems at once and to operate now and hereafter 
only unitary schools. Griffin v. School Board, 377 U.S. 
218, 234, 12 L.Ed.2d 256, 267, 84 S.Ct. 1226 (1964); Green v. 
County School Board of Kent County, 391 U.S. 430, 438-439, 
442, 20 L.Ed.2d 716, 723, 724, 726, 88 S.Ct. 1689 (1968).” 12 * 
Neither are “freedom-of-choice” plans the optimum tool 
for the accomplishment of this obligation. In Green v. 
County School Bd.ls the Court held such a plan insufficient, 
stating, “ if there are reasonably available other ways, such

Brief Appendix B
Opinion and Order of Three-Judge District Court

stitutional is required to be followed and applied by all courts, 
state and federal; that where conflict exists between prior 
orders of any court and the Act the orders should be amended 
or modified to conform to the provisions of the state law.

The prayer for relief contains the following:
2. By way of supplemental relief, if the said Act is decreed 

to be constitutional, that this court modify or amend every 
prior order relating to the public schools issued by it so as to 
make the orders conform to and not conflict with the provisions 
of Act No. 1.

5. That defendants Jerris Leonard, as Chief of the Civil 
Bights Division, be ordered by this court to follow the provi­
sions of said Act No. 1 in all future cases involving the deseg­
regation of the public schools in Alabama and to apply to all 
courts in Alabama in which he has appeared for modification 
of prior decrees which now conflict with the provisions of Act 
No. 1.

12 Alexander v. Holmes Co. Bd. of Ed., 396 U.S. 19 (1969). See 
United States v. Jefferson County Board of Education, 372 F.2d 
836, 845-46 (5th Cir. 1966), aff’d reh. en lane, 380 F.2d 385, cert, 
denied, 389 U.S. 840 (1967).

18 391 U.S. 430 (1968).



36a

for illustration as zoning,14 * promising" speedier and more 
effective conversion to a unitary, non-racial school system, 
‘freedom-of-choice’ must be held unacceptable.” 16

The settled state of the law convinces us that there is no 
substantial federal question presented in this case. Where 
Section 2 of the subject Act conflicts with an order of a 
federal court drawing its authority from the Fourteenth 
amendment, the Act is unconstitutional and must fail. The 
supremacy clause of our compact of government will admit 
to no other result. Indeed this has already been the result 
in cases where this and similar legislation has been asserted 
as a bar to constitutional obligations.16

We are also of the unanimous opinion that a three-judge 
court is not required for the present action under 28 U.S.C. 
§ 2281.17 However, we are mindful that the question pre­

Brief Appendix B
Opinion and Order of Three-Judge District Court

14 The subject Act expressly prohibits zoning.
16 Id. at 441.
16 A  Three-Judge Court in the Middle District of Alabama in 

Lee, et al v. Macon Co. Bd. of Ed., Civ. No. 604-E, on three occa­
sions following passage of the Act, refused to modify prior orders 
to allow the school boards involved to continue to operate under 
Freedom of Choice: Tuscumbia City Board, order dated March 12, 
1970; Colbert County System, order dated March 16, 1970; Monroe 
County System, order dated March 23, 1970.

In Swain v. Charlotte-Meeklenburg Bd. of Ed., et al., (W.D. 
N.C., No. 1974, April 29, 1970), a three-judge court held provisions 
of an analagous North Carolina law unconstitutional insofar as it 
interfered with the school board’s duty to establish a unitary 
school system.

In Bivins v. Bibb Co. Bd. of Ed. (M.D. 6a. No. 1926, May 22, 
1970) the district court enjoined an action in state court which 
sought an injunction requiring the local board to comply with a 
similar Georgia statute.

17 28 U.S.C. § 2281, provides for a three-judge court where the 
plaintiff seeks, “An interlocutory or permanent injunction restrain-



37a

sented is important throughout the State of Alabama. 
Moreover, the ultimate disposition of this case on appeal 
should he free from unneessary delay in order to minimize 
any disruptive effect on the upcoming school year.

Out of an abundance of caution, against the possibility 
that this case might fall upon the snares described in Jack- 
son v. Choate, we remand the case for action by a single 
district judge. The judgment of the district court will be­
come final when joined, through concurrence or dissent, by 
the other members of the present panel. This assures that, 
in the event of an appeal, the appropriate appellate court, 
whether the Court of Appeals or the Supreme Court, will 
have the entire case for decision.18

Brief Appendix B
Opinion and Order of Three-Judge District Court

ing the enforcement, operation or execution of any State statute 
by restraining the action of any officer of such State in the enforce­
ment or execution of such statute . . . upon the ground of the un­
constitutionality of such statute. . . . ”  It is a technical statute 
to be strictly construed. Phillips v. United States, 312 U.S. 246 
(1948) j C. Wright, Federal Courts § 50 at 189 (2d ed. 1970). For 
2281 to apply a state statute must be challenged on constitutional 
grounds in an action in which injunctive relief is sought against 
a state officer who is a party defendant. C. Wright, supra. The 
only state officer involved in the instant case is a party plaintiff 
seeking to uphold the constitutionality of the state statute involved. 
The injunctive relief requested would operate against officers of the 
federal government. Inasmuch as the injunctive relief requestd 
against the federal officers is not related to a constitutional attack 
on any federal statute, a three-judge court is not required by 28 
U.S.C. § 2282.

18 Rodriguez v. Brown, 299 F. Supp. 479 (W.D. Tex. 1969). See 
Hargrave v. McKinney, 302 F. Supp. 1381 (M.D. Fla. 1969); 
Jackson v. Choate, 404 F.2d 910 (5th Cir. 1968).



38a

Done at Mobile, Alabama this the 26th day of June 1970.

/ s /  W alter G ew in

U nited  S tates C ircu it  J udge

/ s /  D an iel  H . T homas

U nited  S tates D istrict J udge

/ s /  V irgil P ittm an

U nited S tates D istrict J udge

Brief Appendix B
Opinion and Order of Three-Judge District Court



39a

Order of Dismissal

(Filed June 26, 1970)

P it t m a n , District Judge:

For the reasons stated in the opinion of the three-judge 
panel remanding the present case to a single judge,1 the 
same is hereby dismissed.

G-e w in , Circuit Judge, and T h om as , District Judge, con­
cur in this order.1 2

Done at Mobile, Alabama this 26 day of June, 1970.

/ s /  W altek Gbwin
U nited  S tates C ircuit J udge

/ s /  D aniel  H . T hom as

U nited  S tates D istrict J udge

/ s /  V irgil P ittm an

U nited  S tates D istrict J udge

1 Opinion of Judges Gewin, Thomas, and Pittman, dated June 
26th, 1970.

2 See note 18 and accompanying text of the three-judge opinion.



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