Amicus Curiae Brief of the State of Florida

     [||5cf5dc34-c798-46f3-8334-a6db62361188||] IN THE 

Supreme Court nf the United States 

OctoBer TERM, 1970 

No. 281 

JAMES E. SWANN. ET AL.. 
PETITIONERS, 

gh | Ki 

CHARLOTTE -MECKLENBURG 
BOARD OF EDUCATION. ET AL.. 

RESPONDENTS. 

AMICUS CURIAE BRIEF OF THE 

STATE OF FLORIDA 
  

  

EARL FAIRCLOTH 
ATTORNEY GENERAL 

ROBERT J. KELLY 
DepuTY ATTORNEY GENERAL 

RONALD W. SABO 
AsSISTANT ATTORNEY GENERAL 

LoUNSEL 3 THE PIA OF 
FLorRIDA, Amicus CURIAE, 

RIVERS BUFORD AND 
STEPHEN M. SLEPIN 
GENERAL COUNSEL 
STATE BOARD OF EDUCATION 

OF COUNSEL. 

  

 



TOPICAL INDEX TO BRIEF 
  

Page 

AUTHORITY FOR FILING. + « ¢ o +o « « 1 

QUESTION PRESUNTED.: civep sv + owns » w2 

STATUTE -INVOIVED. '. +. so vss « +» 2 

STATEMENT +. oc o oo ¢ + 2 + spies ennd 

SUMMARY OF ARGUMENT. . os a sin -siis » »3 

ARGUMENT, ', J Lo ov hs ec abd vs « 4713 

CONCLUSION ei vo inivi si nie senvianmite ov 013 

 



  

TABLE OF CITATIONS 

CASES 

  

Bakey v. Carr, 369 U.5. 186, 211 
{1962) 

Bolling v. Sharpe, 347 U.S. 497, 
500" (1254) 

Brown v. Board of Education, 347 
U.S. 483 (1954) 

Brown v. Board of Fducation, 349 

U.S. 2%4, 300-1 (1955) 

Gomillion v. Lightfoot, 364 11.85. 

339 (1960) 

Goss Vv. Board of PBducation, 373 

U.S. 683 (1963) 

Beart of Atlanta Motel v. United 

State 379 U.S. 241, 279-292 

(1964) 

In Re Gault, 387 U.S. 1, 50 (1967) 

Jacobellis v. Ohio, 378 U.S. 184, 
195 (1964) 

Korematsu v. United States, 323 
U.5. 214, 242 (1944) 

  

Page 

 



iii 

Lochner v, New York, 198 U.S. 

45, 75 (1905) 

Plessy v. Perguson, 163 U.S. 
537, 599 (1894) 

Sailors v. Board of Education, 

337 U.S. 105, 108 (1967) 

Steele v, Louisville & N.R. Co., 
323 U.5. 192, 203 (1944) 

United States v. County Board of 
Blections, 248 F.Supp. 316, 322 
(W.D.N.Y. 1366) 

Wright v. Rockefeller, 376 U.S. 

52, 59 (1964) 

OTHER AUTHORITIES 
  

Civil Rights Act of 1964 

U. 8. Constitution, Amend. V 

U. 8S. Constitution, Amend. X1V, 

Section 5 

42 U.8.C. § 2000c (b) (1964) 

Page 

12 

 



IN THE 

SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM. 1970 

No. 281 

JAMES £., SWANN, ET AL... 

PETITIONERS. 

ml 

CHARLOTTE-MECKLENBURG 
BOARD OF EDUCATION. ET AL.. 

RESPONDENTS. 

  

AMICUS CURIAE BRIEF | 
OF THE | 

STATE OF FLORIDA 
  

AUTHORITY FOR FILING 
  

This amicus curiae brief for the State 

of Florida ex rel. Earl Faircloth, Attor- | 

ney General of Florida, and Floyd | 

| 

| 

  

Christian, Commissioner of Education, is 
filed pursuant to Rule '42 (4) ‘of the Rules 

of this Court.  



    

2 

QUESTION PRESENTED 

WHETHER THE EQUAL PROTECTION CLAUSE 
OF THE CONSTITUTION REQUIRES OR PER- 
MITS SCHOOL SYSTEMS TO ASSIGN PUPILS 
T0 PARTICULAR SCHOOLS BECAUSE OF 
THEIR RACE. 

  

STATUTE INVOLVED 
  

42 U.5.C. § 2000c (b) (1984), provides: 

"'Desegregation' means the 
assignment of students to 
public schools and within 
such schools without regard 
to thely race, color, reli- 

gion or national origin, but 
'desegregation' shall not 
mean the assignment of stu- 
dents to public schools in 
order to overcome racial 
imbalance." 

STATEMENT 
  

Florida respectfully relies upon the 
factual representations contained in the 

briefs filed by the parties to this cause. 

 



SUMMARY OF ARGUMENT 
  

In deciding this case the Court should 
keep two principles foremost in its con- 
sideration. The firet principle is that 
this case turns upon what the Constitu- 
tion mandates and not what seems "better" 
or "more desirable". The second princi- 
ple is that we are concerned with a 

national constitution which should be 
uniformly applied without reference to 
"labels of convenience". 

  

  

  

In our nation, any classification based 
upon a person's race is obviously irrele- 
vant and invidious. Simply stated, our 
Constitution is "color bling’. 

From this premise it follows that a 
"non-gerrymandered" neighborhood school 
system meets constitutional mandates, 
even though, in many cities, it would re- 
sult in schools lacking in racial balance. 
Likewise, a uniformly applied and "color 
blind" freedom of choice assignment plan 
meets constitutional mandates. The fact 
that students, under such a plan, might 
elect to remain in schools where their 
own race predominates, is constitutional- 
ly irrelevant. 

Forced racial balancing by federal 

court order is obviously unconstitutional, 
gince it is a deprivation of liberty in 
violation of the Fifth Amendment for an 
arm of the federal government to assign 
a student to a particular school because 
of his race. Furthermore, such orders  



    

are in violation of the Civil Rights Act 
of 1964 which was enacted pursuant to the 
authority of Congress to enforce the 
Fourteenth Amendment. This Congressional 
authority extends to defining what activ- 
ity does or does not violate the Equal 
Protection Clause. 

ARGUMENT 
  

I. Introduction. 
  

In Brown v. Board of Education, 347 U. 

5. 483 (1954) (Brown I), this Court unan-— 
imously decreed that the equal protection 
clause prohibited school systems from 
maintaining schools where pupil assign- 
ment was dictated by the color of the 
particular pupil's skin. Brown.is now, 
and righifully should continue to be, the 

supreme law of the land. 

  

  

However, Brown and its progeny, par- 

ticularly in the lower federal courts, 
have spawned a variety of conflicting 
views as to what is required of a school 
system in order for it to comply with the 
mandate of the Constitution. Some persons 
plead for "freedom of choice", others cry 

for. "neighborhood schools", and vet others 
argue for "racial balance". 

  

Plorida would urge this Court to ini- 
tially keep foremost the fact that it is 
the Constitution which is here being in- 
terpreted. In this regard, just as the 
Constitution does not "enact Mr, Herbert 

 



Spencer's Social Statics", Lochner v. New 
York, 198 U.S. 45, 75 (1905) (Holmes, dJd., 
dissenting) , neither does it also enact 

Ross Barnett's or Eldridge Cleaver's views 
on race relations. In short, the question 
as to whether it is "better" or "more de- 
sirable" to have a racial balance in each 
school or to have complete separation of 
the races, is constitutionally irrelevant. 
These political questions of policy have, 
under our system of government, "been com- 
mitted by the Constitution to another 
branch of government". Baker v, Carr, 

369 U.S. 186, 211 (1962). We are here 
only concerned with constitutional re- 
quirements. 

  

  

  

Florida would also urge this Court to 
remembey that "[ilt is, after all, a 
national constitution" Jacobellis v. 
Ohio, 378 U.S. 184, 195 (1964) (Brennan 
and Goldberg, JJ), which this Court is 
being called upon to interpret. Particu- 
larly when dealing with the issue of 
racial balance, many lower courts have 

come to completely opposite conclusions 
because the past "segregation" in the 
school system was "de facto" as opposed 
to "de jure”. This distinction is of 
little consolation to the pupil currently 
in school and thus this Court should em- 
phatically reject it. "To hold otherwise 

would be to disregard substance because 
of the feeble enticement of the [de facto] 
label-of-convenience which has been at- 
tached" , In-Re Gault, 387 U.S. 1,-50 

(1967) , to the absence of racial balance 
in Northern schools. Thus, the constitu- 
tional ‘requirement vel non of racial 

    

  

  

   



    

balancing in school systems must be ap- 
plied "in an even handed manner" through- 

  

out our nation. ) 

I1. A.person's race is constitutionally 
irrelevant. 
  

This Court has long.adhered to the po- 
sition that classifying a person .on the 
basis of his race is, under our Constitu- 
tion, an "obviously irrelevant and invid- 
jous" - Steele v. Louisville &§ N.R. Co., 
323 U.S. 192, 203 (1944) , practice. To 
simply state it, "[oluyr Constitution is 

  

  

color blind", Plessy v. Pevrguson, 163 
U.5..537,.599 (130%) (darian, J., &dis- 

senting) . 

The singling out of a person because 
of hig race "in any form and in any de- 
gree has no justifiable part whatever in 
our democratic way Of life". Korematsu v. 
Inited States, 3232 U.S. 214, 242 (19244) 
(Murphy, 9., dissenting). Admittedly, 
there were times in the history of our 
nation when, for example, a pupil was 
singled out for assignment to a particu- 
lar school because of his race. Brown 1 
allegedly sounded the constitutional 
death knell for this practice. This 

Court must now decide whether the practice : 

will be constitutionally resurrected. ) 

  

  

  

E
d
 

IZ. A neighborhood school pupil aszign- 

ment pian 8 constitutional. 
  

  

Florida submits that a neighborhood 

school pupil assignment plan, where all 

students must attend the school closest 

 



to their home, clearly meets constitution- 

al mandates, since it provides a "color 
blind" method of assignment. 

Florida notes that this Court clearly 
indicated its approval of the neighbor- 
hood school concept in the original Brown 
decision. In Brown, once this Court is— 
sued its original opinion, it called for 
supplemental briefs and argument re the 
practical implementation of the opinion. 
In its supplemental opinion this Court 
stated school boards were entitled to a 
certain time to achieve compliance be- 
cause of the administrative problems 
arising (in part) from the necessary "re~- 
vision of school districts and attendance 
areas into compact units to achieve a 
system of determining admission to the 
public schools on a nonracial basis". 
Brown V. Board of Education, 349 U.S. 
2584, 300-1 (1955) (Brown II). This Court 
has thus already directed the nation's 
school systems to alter their school 
systems to conform to the neighborhood 
concept, i.e., "attendance areas [in] com-~ 
pact units". 

  

  

  

  

  

  

To be sure, these attendance areas con- 

stitutionally cannot be "gerry-mandered" 
so as to systematically exclude students 
of one race who should otherwise have at- 
tended a particular school. See Sailors 
v. Board of Pducation, 387 U.S. 105, 108 

(1067); Gomilliion v. Lightfoot, 364 U.S. 
339 (1960). However, 1I the areas are 
drawn on a "color blind" geographical 
basis, it constitutionally matters not 
that the respective schools might have 

  

   



    

disproportionate numbers of one race or 
another. As has been noted with refer- 
ence to voting districts and their con- 
stitutionality: 

"Neighborhoods in our larger 
cities often contain members 
of only one race; and those 

who draw the lines of Con- 
gressional Districts cannot 
be expected to disregard 
neighborhoods in an effort 
to make each district a 
multiracial one.” Wright 
v. Rockefeller, 376 U.S. 52, 59 
(1964) (Douglas and Goldberg, 
JJy. 

  

Thus, a neighborhood school system, go 
long as its attendance zones are drawn on 
a "true" geographical basis, meets con- 
gtitutional mandates. Brown 11, supra. 

  

IV. A freedom of choice pupil assignment 
plan is constitutional. 
  

  

Florida next notes that a "color blind" 
pupil assignment plan, based upon "freedom 
of choice" meets constitutional mandates 
and has clearly been approved by this 
Court. 

In Goss v. Board of Education, 373 U. 
  

S$. 683 (1963), this Court passed upon the 
validity of a student transfer plan which 
hinged the ability of the student to 
transfer upon the student's race and the 
racial composition of the school he was 
to attend. The Court rightfully condemned 

 



the plan because race was the criterion 
employed for the transfer. This Court 
went on to emphasize, however, that: 

nin so doing, we note that if 

the transfer provisions were 
made available to all students 
regardless of their race and 
regardless as well of the 
racial composition of the 
school to which he requested 
transfer we would have an 
entirely different case. 
Pupils could then at their 
option {or that of. .their 
parents) choose, entirely free 
of any imposed racial consid- 
erations, to remain in the 
school of thelr zone or to 
transfer to another." 
14. at 687. 

  

  

Thus it clearly appears that a "color 
blind" freedom of choice pupil assignment 
system (either singly or in conjunction 
with a neighborhood system) meets consti- 
tutional mandates. It should be noted 
that the freedom of choice system has, 
perhaps, one desirable feature which sur- 
passes even the neighborhood system, i.e., 
in the freedom of choice system, the stu- 
dent's ability to attend a racially bal- 
anced school (if he so desires) in no way 

depends upon the racial composition of his 
neighborhood. Neighborhood racial patterns 
have no effect upon a freedom of choice 
system.  



    

10 

It should be noted here that some lower 
federal courts have rejected freedom of 
choice plans on the ground that they do not 
"work", 'i.e., most blacks tend to remain 
in predominantly black schools and like- 
wise with the whites. This "indictment 
of workability", however, has no consti- 
tutional substance. If a freedom of 
choice plan is administered in "an even 
handed manner", what is the constitution- 
al objection if black students elect to 
remain in predominantly black schools (for 
reasons of "black pride", "black control” 
or whatever) and likewise for the white 
students? This "workability objection" 
has constitutional substance only if the 
Constitution is construed as affirmative- 
ly requiring Americans of different races, 
ethnic backgrounds, etc., to associate 

with each other. Florida is not aware of 
any recognized legal interpretation of the 
Constitution which would support such a 
premise. 

  

  

  

  

  

It ‘is thus clear that a "freedom of 
choice" school system (where the "choice" 
is uniformly applied) meets the constitu- 
tional mandate of a "color blind" system 
which admits students "regardless of their 
race”. Goss v. Board of Education, supra. 
  

V.'" ‘Forced racial balancing is unconstitu- 
tional. 
  

Plorida submits that it is almost too 
axiomatic to require citation of authority 
that under a "color blind” Constitution, 
which views its citizens on a "nonracial" 
basis, the assignment of pupils to a 

 



il 

particular school because of their race 
(as opposed to because it is "the closest 
school" or “the school of their choice") 
is unlawful. It thus follows that fed- 
eral court orders which order "forced 
bussing”", "forced walking", or even "forc- 
ed subwaying" of pupils to a particular 
school, because of their race, are pa- 

tently unconstitutional on their face. 
Parenthetically, Florida would here em- 
Phasize that "bussing”, "walking" or "sub~- 
waying" are not fundamentally the issues 
in this case. Each, or all, of the above 
have a legitimate basis in our education- 
al system. Florida simply maintains that 
none of the above have any place in our 
democracy where any of them are occasion- 
ed simply to affirmatively achieve a set 
ratio of students based upon their race 
{or ethnic origin, nationality, etc.y. 

  

  

  

  

It is clear that when a federal court 
orders a student to attend a school, other 
than the one he would normally attend 
(under any "color blind" assignment plan), 
because of the color of his skin, then 
that court has deprived that student of 
his valuable and fundamental right to due 
process of law. This Court has already 
emphatically and unanimously held that the 
assignment of pupils to a particular 
school, by an arm of the federal govern- 
ment, because of the color of their skin 
"constitutes an arbitrary deprivation of 
their liberty in violation of the Due 
Process Clause [of the Fifth Amendment]". 
Bolling v, Sharpe, 347 U.S. 497, 500 
(1954). "This Court, some vears later, re- 
emphasized that "[tlhe recognition of race 

   



    

12 

as an absolute criterion for transfers 
+ +» i8 no less unconstitutional than 

its use for original admission or subse- 
quent assignment to public schools". 
Goss. Vv, Board of Bducation, 373 :U.8. 633, 
688 (1963) ..- It 1s thus patently obvious 
that federal court orders which force stu- 
dents to attend particular schools because 
of their race are totally impermissible 
under our "color blind" Constitution. 

  

Florida would also emphasize that such 
court orders also violate the provisions 
of the Civil Rights Act of 1964 which 
states that desegregation "shall not mean 
the assignment of students to public 
schools in order to overcome racial im- 
valance,” 42 U.S.C. $:2000c (hb) (1964). 
To dismiss this mandate as merely relating 
to a "government aid program", as some 
lower courts have done, is to totally ig- 
nore the Constitutional authority of 
Congress "to enforce, by appropriate leg- 
islation, the. provisions of [the Fourteen- 
th ‘Amendmentl" Amend. XIV, § 5, U.S. 

Const. This Congressional authority ex- 
tends to "responsibility for exercising 
judgment as to when the Fourteenth Amend- 
ment: is violated". United States v. 
County Board of Elections, 248 F.Supp. 

316, 322 (W.D. N.Y. 1966), appeal dismiss~ 

ed; 383 U.8.. 575 (1966). 

  

  

  

It cannot be denied that Congress was 

exercising (in part) its section 5 au- 

thority when it enacted this statute. 

Heart of Atlanta Motel v. United States, 
  

398 U.8. 241, 279-292 (1964) (Douglas and 

Goldberg JJ concurring). Thus, it is 

 



13 

clear that this Congressional prohibition 
on pupil assignment to achieve racial bal- 
anceils given "constitutional life' by 
section 5 of the Fourteenth Amendment and 
it cannot be ignored by the judiciary. 

CONCLUSION   

Florida submits that this Court should 
now give full meaning to the late Justice 
Harlan's admonition that "our Constitution 
is color blind". For too many years in 
this nation the color of a boy's or girl's 
skin determined the school he or she had 
to attend in order to receive an education. 
To be sure, our Constitution should remain 
"color conscious” to the extent of voiding 
classifications based solely upon the 
color. of ia citizen's skin. 

Let us not, however, in a zeal to elim- 

inate the sins of the past, resort to the 
same racial criterion even though the end 
result might be thought "best". Let us 
not also "visit the sins of the father 
upon the son". 

Florida simply urges this Court, when 
it decides to adopt its. criteria, no 
matter what they may be, to establish 
criteria for public school assignment 
which 40 not contain the terms "white", 
"black", "Indian", or any othey racial 
prefix to qualify the noun "American".  



    

14 

Respectfully submitted, 

  

EARL FAIRCLOTH 

Attorney General 

  

ROBERT J. KELLY 
Deputy Attorney General 

  

RONALD W. SABO 

Assistant Attorney General 

Counsel for the State of 
Florida, Amicus Curiae. 
  

RIVERS BUFORD 

General Counsel, Florida 
State Board of Education 

STEPHEN M. SLEPIN 

Ceneral Counsel, Florida 

State Board of Education 

Of Counsel. 

 



PROOF OF SERVICE 
  

This. is to certify that I have served 
a copy of the foregoing Amicus Curiae 
Brief of the State of Wiorida, by mail, 

  

this day of September, 1970, to 

the following: 

William J. Waggoner Honorable Erwin N. Griswold 
1100 Barringer Office Tower Solicitor General of 
426 North Tyron Street United States 
Charlotte, North Carolina Department of Justice 

Washington, D. C. 20530 
Benjamin S. Horack 

806 East Trade Street Honorable Robert Morgan 

Charlotte, North Carolina Attorney General 

State of North Carolina 
Julius Levonne Chambers Department of Justice 
216 West Tenth Street Raleigh, North Carolina 
Charlotte, North Carolina 

William C. Cramer, M.C. 
Jack Greenberg 2165 Rayburn Building 
10 Columbus Circle Washington, D.C. 20515 
New York, New York 

Stephen J. Pollak 
Conrad O. Pearson Benjamin W. Boley 
2031; East Chapel Hill Street Richard M. Sharp 

Durham, North Carolina 734 Fifteenth Street, N.W. 
Washington, D.C. 20036 

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

  

RONALD W. SABO 

Assistant Attorney General 

Of Counsel. [||5cf5dc34-c798-46f3-8334-a6db62361188||]