Amicus Curiae Brief of the School Board of Hillsborough County, Florida

     [||394a0fcb-4006-458e-948a-d9d039dca86c||] IN THE 

Supreme Court of the United States 

OCTOBER TERM, 1970 

  

No. 281 
  

JAMES E. SWANN, ET AL, 

Petitioners, 

VS. 

CHARLOTTE-MECKLENBURG 
BOARD OF EDUCATION, ET AL. 

Respondents. 

  

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

  

AMICUS CURIAE BRIEF OF THE SCHOOL BOARD OF 
HILLSBOROUGH COUNTY, FLORIDA 
  

W. CROSBY FEW 
725 East Kennedy Blevd. 
Tampa, Florida 33602 

Attorney for the School 
Board of Hillsborough 
County, Florida 

Of Counsel: 

JOHN M. ALLISON 
512 Florida Avenue 
Post Office Box 1531 
Tampa, Florida 33601 

  

FREE PRESS PUB. CO., INC., TAMPA, FLORIDA  



TABLE OF CONTENTS 

Page 

NATURE OF INTEREST OF AMICUS CURIAE = 1 

QUESTIONS : PRESENTED... o.oo Jo. buuel. so suun 2 

ABCGUMENT: 11. coidssonan Jo bovol Povuinedt iu ts 3 

CONCLUSION = inane rr=on = oma 5 

 



  

ii 

TABLE OF AUTHORITIES 

Case Page 

Alexander v. Board of Education, 306 US. 19 3, 4 
Briggs v. Elliott, 132 F.Supp. 776 Ema 

Brown v. Board of Education, I, 347TU.S.483 = 3 

Caddo Parish School Board v. U.S.,389 U.S. 840 ____ 4 

Deal v. Cincinnati Board of Education, U.S.C.A. 
6 Cir., (1966), 369 F.2d 55 (Deal I) cert. den. 
389 U.S. 847, 88 S.Ct. 39, 19 L.Ed. 114 ________ 3 

Mannings v. Board of Education of Hillsborough 
County, Florida, 5 Cir., 1970 F.2d 
[No. 28,643, May 11, 1970] _______ BeANITH 1 

U.S. v. Jefferson County Board of Education, 
372 F.2d 836,380 F.2d 38 _________ Lao on 3, 4 

Miscellaneous 

Civil Rights Act of 1964—79 Stat. 241 

3401(b) i... ae. 4 

3404 (ey (2). >... 2, 4 

Rules of the Supreme Court of the United States 
Buled42(4): ........ ... cena 1 

42 U.S.C.A. 

$2000c.{b) .... . 0. Cillian 2 

32000c~=6(a¥{2) ... _ ....... _..  in.o..... 2 

Tlorido' Stotutes, $23401- ..- ~~ . o.. ..... 9 

   



IN THE 

Supreme Court of the United States 

OCTOBER TERM, 1970 

  

No. 281 
  

JAMES E. SWANN, ET AL, 

Petitioners, 

VS. 

CHARLOTTE-MECKLENBURG 
BOARD OF EDUCATION, ET AL. 

Respondents. 

  

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

  

AMICUS CURIAE BRIEF OF THE SCHOOL BOARD CF 
HILLSBOROUGH COUNTY, FLORIDA 
  

NATURE OF INTEREST OF AMICUS CURIAE 

This brief is filed on behalf of the School Board 

of the County of Hillsborough, a political subdivision of 

the State of Florida, and is sponsored by the attorney 

for the School Board of Hillsborough County, Florida, 
the authorized law officer thereof, under Rule 42(4) of 

the Rules of the Supreme Court of the United States. 

The School Board of Hillsborough County’s inter- 

est arises because, in Mannings v. Board of Public In- 

struction of Hillsborough County, Florida, 5 Cir. 1970, 

_F2d___ [No. 28,643, May 11, 1970], the Fifth   

Circuit, and in subsequent orders thereto entered by the 

District Judge of the United States District Court for 

 



  

2 

the Middle District of Florida, certain elementary 

schools were directed to be paired. Such orders entirely 

ignored the provisions of Title 42, Sections 2000c. (b) 

and 2000c.—6(a) (2), which provide that ‘“desegrega- 

tion” shall not mean the assignment of students to pub- 

lic schools in order to overcome racial imbalance, and 

prohibit any official or court of the United States from 

issuing any order seeking to achieve a racial balance in 

any school by requiring the transportation of pupils 

from one school to another in order to achieve such 

racial balance. Such orders also necessarily required the 

busing of students from parts of the school areas as 

paired, to the school building where the classes were to 

be held, a condition which did not previously exist prior 

to the entry of such orders. Florida law provides that no 

state funds shall be paid for the transportation of pupils 

whose homes are within two miles from the nearest ap- 

propriate school. Section 234.01, Florida Statutes. In a 

number of instances, the pairing of elementary schools 

directed as aforesaid results in requiring busing stu- 

dents from portions of the school areas directed to be 

paired, in excess of two miles to the school building 

where appropriate classes are held, thus requiring the 

busing of students not contemplated by the School 

Board. 

QUESTIONS PRESENTED 

1. Does the Constitution require or permit the 

courts to order the busing of pupils solely to achieve 

racial balance? 

2. Did the courts below improperly disregard the 

explicit direction of Congress in Section 407 (a) (2) of 

the Civil Rights Act of 1964, that “nothing herein shall 

impower any * * * court of the United States to issue 

   



LE) 

3 

any order seeking to achieve racial balance in any school 

by requiring the transportation of pupils or students 

from one school to another in order to achieve such 

racial balance.” ? 

ARGUMENT 

No decision of this Court has required racial balanc- 

ing. Every decision from Brown v. Board of Education, 

I, 347 U.S. 483, through Alexander v. Board of Education, 

396 U.S. 19, has reiterated the Constitution’s mandate 

for wholly non-racial public school systems. 

A concise statement of the law appears in Deal v. 

Cincinnati Board of Education, U.S.C.A., 6 Cir. (1966) 

369 F.2d 55 (Deal I), cert. denied 389 U.S. 847, 88 S.Ct. 

39, 19 L.Ed. 114, where it was said: 

“We hold that there is no constitutional duty on 
the part of the Board to bus Negro or white children 
out of their neighborhoods or to transfer classes 
for the sole purpose of alleviating racial imbalance 
that it did not cause, nor is there a like duty to 
select new school sites solely in futherance of such 
a purpose.” (emphasis supplied) 

A three-judge court in Briggs v. Elliott, 132 F.Supp. 

776, firmly declared: 

“The Constitution, in other words, does not require 
integration. It merely forbids discrimination.” 

At least seven Circuit Courts of Appeal support this 

doctrine. Only the Fifth Circuit has discarded its earlier 

approval of the case and now adheres to the racially 

oriented policy of racial balancing, U.S. v. Jefferson 

County Board of Education, 372 F.2d 836, adhered to on 

rehearing, 380 F.2d 385. 

 



  

4 

The concept of racial balancing as a form of deseg- 

regation was explicitly and emphatically disapproved 

by Congress when it enacted the Civil Rights Act of 1964. 

When the bill was considered on the floor of the House 

on February 6, 1964, Mr. Cramer of Florida offered an 

amendment which provided that “ ‘desegregation’ shall 

not mean the assignment of students to public schools 

in order to overcome racial imbalance.” Chairman Celler 

of the Judiciary Committee accepted that amendment, 

and, as thus amended, Section 401 (b) was not further 

changed in the course of the passage through Congress; 

it was carried on to the statute book as amended by Mr. 

Cramer. 

Notwithstanding the provisos in Section 401(b) 

and 407 (a) of the Civil Rights Act of 1964, they have 

been either consistently misread, or simply disregarded 

by the courts that have had these statutory directions 

called to their attention. U.S. v. Jefferson County Board 

of Education, supra, Caddo Parish School Board v. U.S., 

389 U.S. 840. This disregard of congressional action con- 

stitutes another reason for review by this Court. Nothing 

in the Constitution of the United States permits, much 

Jess requires, the busing of school children to achieve 

racial balancing. The direction (Alexander v. Board of 

Education, 396 U.S.19) “to operate as unitary school sys- 

tems within which no person is to be effectively exclud- 

ed from any school because of race or color” forbids 

the result obtained below, which in fact excludes several 

hundred white children from the walk-in schools nearest 

their homes simply because admitting them there fails 

to achieve racial balancing within the entire system. Past 

discrimination in cone direction does not justify present 

discrimination in another. 

   



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CONCLUSION 

These issues which have caused wide-spread con- 

fusion must be resolved. The time is now. Amicus urgent- 

ly requests the Court to announce that the busing of 

pupils solely to achieve racial balance should not be re- 

quired; that the concept of the neighborhood school 

should be preserved, and that involuntary pairing of 

schools is educationally and economically unsound, 

threatening to encroach upon and destroy the historical 

concept of the American school system. 

Respectfully submitted, 

  

W. CROSBY FEW 
725 East Kennedy Boulevard 
Tampa, Florida 33602 

Attorney for the School Board of 
Hillsborough County, Florida 

Of Counsel: 

JOHN M. ALLISON 
512 Florida Avenue 
Post Office Box 1531 
Tampa, Florida 33601 

 



    

CERTIFICATE OF SERVICE 

This is to certify that copies of Amicus Curiae 

Brief of the School Board of Hillsborough County, 

Florida were served upon each of the attorneys named 

below by depositing the same in the United States mail, 

postage prepaid on this 17th day of September, 1970. 

William J. Waggoner 
1100 Barringer Office 

Tower 
426 North Tyron Street 
Charlotte, North Carolina 

Benjamin S. Horack 
806 East Trade Street 
Charlotte, North Carolina 

Julius LeVonne Chambers 

216 West Tenth Street 

Charlotte, North Carolina 

Jack Greenberg 

10 Columbus Circle 
New York, New York 

Conrad O. Pearson 
203; East Chapel Hill 

Street 
Durham, North Carolina 

Jerris Leonard 
Assistant Attorney General 
U.S. Department of Justice 
Washington, D.C. 

Honorable Erwin N. 
Griswold 

Solicitor General of United 
States 

Department of Justice 
Washington, D.C. 20530 

Honorable Robert Morgan 
Attorney General 
tate of North Carolina 

Department of Justice 
Raleigh, North Carolina 

William C. Cramer, M.C. 
2165 Rayburn Building 

Washington, D.C. 20515 

Stephen J. Pollak 
Benjamin W. Boley 
Richard M. Sharp 
734 Fifteenth Street, N.W. 
Washington, D.C. 20036 

Gerald Mager 
General Counsel to the 

Governor 
The Capitol 
Tallahassee, Florida 

  

W. CROSBY FEW 

Of Counsel for Amicus Curiae [||394a0fcb-4006-458e-948a-d9d039dca86c||]