Mississippi's Anti-Negro Voting Laws and Anti-NAACP Laws Challenged
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March 17, 1958

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Brief Collection, LDF Court Filings. Swann v. Charlotte-Mecklenburg Board of Education Memorandum of James E. Swann, 1970. 3ffe9fa8-be9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/53f6bf19-236f-4435-b312-6d7835e6e122/swann-v-charlotte-mecklenburg-board-of-education-memorandum-of-james-e-swann. Accessed July 01, 2025.
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I IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1970 Nos. 444, 498, 281 and 349 MRS. ROBERT LEE MOORE, et al., Appellants, v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, et al. NORTH CAROLINA STATE BOARD OF EDUCATION, et al., Appellants, v. JAMES E. SWANN, et al. JAMES E. SWANN, et al., Petitioners, ^ v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, et al.jI CHA RLO TT E - ME C K L■ RG BOAFD OF EDUCATION, et al. , Petitioners, v-JAMES E. SWANN, et al.i■ i MEMORANDUM OF JAMES E. SWANN, ET AL. IN RESPONSE TO "MOTION AS TO SCHEDULING OF ORAL ARGUMENT AND APPORTIONMENT OF TIME FOR ORAL ARGUMENT" FILED BY MRS. ROBERT LEE MOORE, ET AL. IN NO. 444 AND SUGGESTION TILAT THIS COURT DOES NOT HAVE JURISDICTION OF THE APPEAL IN THE MOORE CASE, NO. 444 JACK GREENBERG JAMES M. NABRIT, III I NORMAN J. CHACHKIN 10 Columbus Circle New York, N. Y. 10019 ANTHONY G. AMSTERDAM Stanford University Lav/ School Stanford, Calif. 94305 J. LeVONNE CHAMBERS AMAM STEIN CHAMBERS, STEIN, FERGUSON & BANNING 216 WTest Tenth Street Charlotte, N. C. 28202 C. O. PEARSON 203-1/2 East Chapel Bill St. Durham, N. C. 27702 Attorneys for James E. Swann, et al. IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1970 Nos. 444, 498, 281 and 349 MRS. ROBERT LEE MOORE, et al.. Appellants, v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, et al, NORTH CAROLINA STATE BOARD OF EDUCATION, et al., Appellants, v. JAMES E. SWANN, et al. JAMES E. SWANN, et al., Petitioners, v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, et al. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, et al., Petitioners, v. JAMES E. SWANN, et al. MEMORANDUM OF JAMES E. SWANN, ET AL. IN RESPONSE TO "MOTION AS TO SCHEDULING OF ORAL ARGUMENT AND APPORTIONMENT OF TIME FOR ORAL ARGUMENT" FILED BY MRS. ROBERT LEE MOORE, ET AL. IN NO. 444 AND SUGGESTION THAT THIS COURT DOES NOT HAVE JURISDICTION OF THE APPEAL IN THE MOORE CASE, NO. 444 James E. Swann, (it al. , by their attorneys, respectfully submit the following memorandum in response to the motion filed by the appellants Moore, et al. in No. 444, requesting that this Court consolidate for argument, cases Nos. 281, 349, 444 and 498, and permit the appellants Moore, et al. to present argument first and to be allotted time equal to that of the Charlotte-Mecklenburg Board of Education and the original plaintiffs, Swann, et al. We oppose the motion on the grounds that: 1. Moore v. Charlotte-Mecklenburg Board of Education, No. 444, O.T. 1970, is a feigned or collusive suit in which there are no parties asserting adverse or antagonistic claims and there is no "case or controversy" as required by Article III of the Constitution. 2. Since the Moore case, No. 444, is not a truly adversary proceeding, no party has called the Court's attention to the fact that very probably this Court has no jurisdiction of the direct appeal under 28 U.S.C. § 1253 because the case was not required by any statute to be heard by a three-judge district court. 3. The Moore case, No. 444, involves no substantial ques tions, as revealed by Appellants' Brief in that casq which makes an entirely inadmissible effort to collaterally attack the judg ments of the single district judge and of the Court of Appeals for the Fourth Circuit in the case of Swann v. Charlotte- Mecklenburg Board of Education, No. 281, O.T. 1970, by using as a vehicle a suit in which the Negro plaintiffs Swann, et al. are not even named as parties. I. Statement of the Case Proceedings in Moore v. Charlotte-Mecklenburg Board of Education, No. 444, October Term, 1970. Unlike the other three cases now pending here involving the desegregation of the Charlotte-Mecklenburg public schools— - 2 - I Nos. 281, 349 and 498--all of which began as original.actions in the United States District Court, the Moore case began in a North Carolina state court. Its beginning was unusual to say the least. The complaint was filed in the Superior Court of Mecklenburg County, North Carolina, and an ex parte restraining order was immediately issued by Judge Frank W. Snepp at 10:16 p.m. on Sunday night, February 22, 1970. (See A. 3-8, complaint; A. 19, restraining order; A. 31 with respect to filing on Sunday 1/night). At tie time the Moore case was filed and the state court injunction issued, the Swann case had been in litigation in the United States District Court for the Western District of North Carolina for nearly five years. The full history of the Swann case is set forth in Petitioners' Brief in Swann, No. 281, O.T. 1970 on file in this Court. Two weeks before the filing of Moore the district judge in the Swann case had issued a desegre gation order requiring implementation of a plan to desegregate the schools during the then current school semester. That order of February 5, 1970, appears at 311 F. Sujyp. 205 (W.D. N.C. 1970). On February 20, 1970, the district judge in Swann requested that a three-judge court be convened to consider the Swann plaintiffs' application for injunctive relief to restrain jcertain state officials and the local school board from enforcing I the North Carolina anti-bussing law (N.C. Gen. Stats, section 115-176.1) on the ground that it violated the Fourteenth Amend ment. The Swann plaintiffs had also requested an injunction to — 1/ Citations are to the Appendix in No. 444 "(A. )" unless otherwise indicated as citations to the Appendix in No. 281 (A. No. 281, p.___) . 3 stay another suit filed in the North Carolina scate court— Harris v. self— by some of the same counsel representing the Moots plaintiffs. The resident federal district judge on February 20 requested that this matter also be referred to the requested three-judge court stating that the practical effect of the state court injunctions obtained in Harris v. Self "may be to delay or defeat compliance with the orders of this United States Crart" (A. No. 281, pp. 845a-847a). Against this background, the Moore complaint was filei late on a Sunday night. The complaint was brought as a class artion on behalf of parents and children of the district naming as defendants only the Charlotte-Mecklenburg Board of Education and the Superintendent of Schools. The complaint alleged that the school system was already a racially unitary school system in compliance with Brown v. Board of Education, but that the 5oard and Superintendent were "under pressure of a Court directive -- about to implement" a plan under which pupils would be assigned on the basis of their race and color. It was alleged that this action the board was about to take under order of the federal district court violated the rights of the Moore plaintiffsunder the Fourteenth Amendment, the North Carolina Constitution, sec tions 401(b) and 407(a) (2) of the Civil Rights Act of 1964 (42 U.S.C. 2000c(b), and 42 U.S.C. 2000c-6(a)), and N.C. Gen. Stats, section 115-17 6.1. The theory of the complaint was that tee ; desegregation plan ordered by the federal district court violated; the requirement of the Brown case that admission to public schools be non-racial by taking race into consideration in 4 * accomplishing desegregation of the schools. The Superior Court « of Mecklenburg County was asked to thus restrain the school authorities in Charlotte-Mecklenburg from carrying out the deseg regation plan ordered by the United States District Court on February 5, 1970. The complaint prayed only for an order: ... restraining and enjoining the defendants from instituting or implementing or putting into opera tion or effect, or expending any public funds upon, any plan or program under which the children named above, or any 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 because of their race or color. The complaint made no request for an injunction restraining the enforcement of any statute, either state or federal. As we have indicated, at 10:16 p.m. on Sunday, February 22, Superior Court Judge Snepp issued an injunction in precisely the terms requested by the Moore plaintiffs as quoted above (A. 19- 20) . The school board reacted by deciding to obey the injunction by Judge Snepp. Judge McMillan wrote that: On Friday, February 27, 1970, the defendant Board of Education had a meeting. Without any inquiry of this court, the Board staff were instructed to comply with the state court order and to stop work on compliance with the order previously entered by this Court (A. 31). Also on February 27, the board filed a petition removing 5the Moore case to the federal district court. The removal peti- j tion alleges that the case was removable because the federal court "has original jurisdiction, in that rights or claims of rights arising out of the Constitution and lews of the United 5 States, statutes of the United States and other rights are allegsd in the complaint ..." (A. 21). Immediately and on the same date — February 27, 1970---the Swann plaintiffs moved in that case for an order adding the Moore plaintiffs, their attorneys, Messrs. Booe and Blakeney, and Judge Snepp as defendants in the Swann case, and for an order restraining them from taking any further proceedings in the Moore case or taking any further steps to frustrate the orders in the Swann case. The Swann plaintiffs also moved for a temporary restraining order against these par ties and the school board and that the school board be held in civil contempt for its action in directing the school staff not to carry out the district court's desegregation orders. On February 28, all counsel were notified that a hearing would be held in the federal district court on March 2 on motions to set aside the effect of Judge Snepp1s order. Coun sel for plaintiffs in the Moore case did not appear, but sent word through secretaries by telephone that they were occupied elsewhere" (A. 31). On March 2, 1970, the school board filed a pleading with the district court asserting that the order of Judge Snepp con flicted with the district court orders and placed the board in a dilemma, that the constitutionality of the North Carolina anti bussing lav and certain provisions of the Civil Rights Act cf 1964 was involved, and requested a three-judge court to pass on the case. On the same day, March ^, the Moore plaintiffs al̂ >o filed a motion in the district court seeking an injunction. This motion asserted that the school board might be deemed authorized - 6 - to implement the desegregation plan ordered by the district court under a proviso in the North Carolina anti-bussing law which states that school boards may assign a pupil outside his attend ance zone "for any other reason which the board of education in its sole discretion deems sufficient. " The Moore plaintiffs prayed for an order enjoining the board from enforcing this pro viso on the ground that the proviso "as thus applied and imple mented is unconstitutional," and asked for the convening of a statutory three-judge court. There was no request that the com plaint be amended.. On March 6, the district court entered an order (A. 31-33) which ruled that the order of Judge Snepp was "suspended and held in abeyance and of no force and effect pending the final determi nation 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" (A. 32), and that the Moore case be referred to the three-judge court which was scheduled to hear the Swann case on March 24. Subsequently, the district judge formally requested a three-judge court for the Moore case (A. 38) and such a court was designated (A. 39). On March 23, the school board filed an answer admitting all of the allegations of the complaint. On March 23, the Moore, plaintiffs served several requests for aclmissions on the school board. The school board answered this request by admitting all the matters requested by the Moore plaintiffs on the same day, March 23, 1970. The various pleadings filed in the Moore case were not served on the Swann plaintiffs. - 7 - When the case was heard by the three-judge court both parties to the Moore case argued to the three-judge court that the North Carolina anti-bussing law was valid and that the orders of the single district judge in Swann should be set aside. The hearing was consolidated with argument in the Swann case. On April 29, 1970, the three-judge court filed its decision (A. 44- 62) now reported at 312 F. Supp. 503 (W.D. N.C. 1970). The court held that the anti-bussing law was unconstitutional in violation of the Fourteenth Amendment and the Supremacy Clause, in an opinion written to cover both the Swann and Moore cases. Subse quently, the final judgment of the three-judge court--also entered in both the Swann and Moore cases— declared two sentences in the anti-bussing law unconstitutional and provided that "all parties" were enjoined "from enforcing, or seeking the enforce ment of, the foregoing portion of the statute." Three notices of appeal were filed from this final judgment of June 22, 1970: an appeal by the Moore plaintiffs docketed here as No. 444, an appeal by the North Carolina State Board of Education (a party in the Swann case) docketed here as No. 498, and an appeal by the Charlotte-Mecklenburg Board of Education which was never docketed in this Court. However, the Charlotte- Mecklenburg board has taken two actions in this Court: (1) as appellee in Moore the board has urged that this Court grant review of the case; (2) the board has also made a motion seeking to join in the appeal of the North Carolina State Board of ! Education in No. 498. 8 The Moore Ca.se Involves No Adversary Parties and Thus Presents No Case or Controversy. The jurisdiction of this Court is restricted to cases and controversies within the meaning of Article III of the Constitu tion. Muskrat v. United States, 219 U.S. 346 (1911). In addi II. tion, this Court has developed a number of rules limiting its consideration of constitutional contentions brought here for decision. See, e.g., Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 341, 346 (1936) (concurring opinion). One of the principal requisites for constitutional adjudication is that there be adverse claims— "an honest and actual antagonistic assertion of rights by one individual against another." Chicago & G.T.R.C. v. Weliman, 143 U.S. 339, 344, 345 (1892). The leading cases involving the requirement of adversity are collected in Poe v. Ullman, 367 U.S. 497, 505-507 (1961). Mr. Justice Frankfurter's opinion in Poe states: This principle was given early application and has been recurringly enforced in the Court's refusal to entertain cases which disclosed a want of a truly adversary contest, of a collision of actively asserted and differing claims. See, e.g., Cleveland v. Chamberlain (US) 1 Black 419, 17 L ed 93; American Wood-Paper Co. v. Heft (US) 8 Wall 333, 19 L ed 378. Such cases may not be "collusive" in the derogatory sense of Lord v. Veazie (US) 8 How. 251, 12 L ed 1067— in the sense of merely colorable disputes got up to secure an advantageous ruling from the Court. See South Spring Hill Gold Min. Co. v. Amador Medean Gold Min. Co. 145 US 300, 301, 36 L ed 712, 12 S Ct 921. The Corrt has found unfit for adjudi cation any cause that "is not in any real sense adversary," that "does not assume the 'honest and ' actual antagonistic assertion of rights' to be adjudicated— a safeguard essential to the integ rity of the judicial process, and one which we have held to be indispensable to adjudication - 9 - of constitutional questions by this Court." United States v. Johnson, 319 U.S. 302, 303, 87 L ed 1413, 141:5, 63 S Ct 1075. (367 U.S. at 505.) It is entirely plain that there are no adverse claims being asserted in the Moore case. Both the Moore appellants and the appellees (the school board and school superintendent) have argued at every stage of the proceeding that the court-ordered desegregation plan was not constitutionally required, that it conflicted with the state anti-bussing law, and that the latter act was a valid exercise of state power. No party in the Moore case argues any other viewpoint. Furthermore, it is obvious that the parties are cooperating with each other. In Moore, not only does the answer admit every allegation of the complaint, but the school board responded to the Moore plaintiffs' Request )| for Admissions bv admitting every fact asserted on the same day! i the Request for Admissions was filed. The Moore plaintiffs now join the school board in arguing against the decisions of the single district judge and the Fourth Circuit in the Swann case, even though they have never participated in Swann. It is entirely plain that the parties to the Moore case assert no adverse and antagonistic claims. This lack of adversity is underlined if one contemplates the problem of determining which partv obtained relief in the Moore case— who won? See our dis- I| cussion of this in Part III, infra. This Court should apply the rule that it "will not pass upon the constitutionality of legislation in a suit which is not adver- l sary ... or in which there is no actual antagonistic assertion - 10 - L of rights ... . " Congress of Industrial Organizations .v. McAdorv. 325 U.S. 475 (1945), and cases cited. Application of such a rule is all the more appropriate in this case since all substantive claims that might appropriately be presented in Moore are before this Court in the appeal filed by the North Carolina State Board of Education, No. 498, where the parties do have adverse interests. / 11 Ill This Cou3.~t Does Not Have Jurisdiction Of The Mooro Case On Direct Appeal Under 28 U.S.C. § 1253 Because The Case Was Not Required To Be Heard By A Three-Judge District Court. Although we have some serious doubts about the matter, for the purposes of this discussion only we assume that the district court had federal jurisdiction over the Moore case and that the matter was properly removed to that court from the state court. We believe that the jurisdiction of the single-judge district court presents substantial arguable questions; they will not be argued in the Moore case because as we have noted above there are no adverse interests represented. The issues are discussed _2yin the footnote below. 2/ The removal petition was apparently intended to invoke 28 U.S.C. §1441 permitting removal of actions of which the district courts have original jurisdiction. Under §1441 removal may be had only where the plaintiff states a claim over which the district court would have jurisdiction. The complaint in the Moore case does not state a claim within the "federal question" jurisdiction of the district court (28 U.S.C. §1331) because there is no allega tion that the matter in controversy exceeds the sun; or value of $10,000. Further there has been no finding or proof of the juris dictional amount. (And of course the plaintiffs may not aggregate | their claims for purpose of making up the amount.) There is no jurisdiction under any provisions such as diversity, Admiralty, Bankruptcy etc. (28 U.S.C. §1332,§1333,§1334). Original juris diction might also be invoked under "civil rights" jurisdiction 28 U.S.C. §1343(3) but the Moore complaint fails to make out such a claim. Although the Moore plaintiffs do assert in their complaint that the school board is violating their Fourteenth Amendment j rights, there is probably no sufficient allegation that the board I is depriving the j/laintiffs of rights "under color of State law, statute, ordinance, regulation, custom or usage.” There is no sufficient color of state law allegation because the Moore complaint specifically alleges that the school board was acting under the compulsion of the federal court orders rather than under any state; lav/. I There is a possibility that the case might have been properly removable under the civil rights removal statute, 28 U.S.C. §1443VU} . That provision permits removal of actions commenced in a state court "For any act under color of authority derived from any law j providing for equal rights, or for refusing to do any act on the j ground that it would be inconsistent witli such law." It might have been asserted in the removal petition that the board was being sued for obeying a federal court order issued in a case 12 This Court has jurisdiction over direct appeals from orders granting or denying an injunction "in any civil action, suit or proceeding required by any Act of Congress to be heard and deter mined by a district court of three judges." 28 U.S.C. §1253. Under Section 1253 a direct appeal is permissible only where a three-judge court is required and not merely where three-judges actually decide a case. Phillips v. United States, 312 U.S. 246 (1941); Swift & Co. v. Wickham, 382 U.S. Ill (1965). A three-judge court was not required in the Moore case by either 28 U.S.C. Section 2281 or 2282. With respect to Section 2282 it is plain that the complaint did not seek any injunction against "any Act of Congress for repugnance to the Constitution of the United States." On the contrary the complaint asserted that the only federal statute mentioned — the Civil Rights Act of 1964 — supported the plaintiffs' claims. This Court's decision in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963) makes it plain that a three-judge court is required only where an in junction against a federal statute is sought. It is not enough that rhe validity of a federal law or policy be merely implicated in the case if there is no real request for an injunction against the federal statute. Thus it is immaterial for jurisdictional purposes that the school board has argued (A. 26-30) that the district court desegregation order in the Swann case can be upheld only if the provisions of the 1964 Civil Rights Act are declared unconstitutional. The point is that neither party ever sought any such injunction. Both parties attacked the district court's desegregation order relying on the state and federal statutes. 2 / cont'd. brought under "a law providing for equal rights" — i.e., 42 U.S. C. §1983 is the basis for Swann — and thus the case was removable under §1443(2). 13 - The school board's answer sought no injunction but merely dismissal of the case. The board's application for an injunctive order (A. 26) does; not indicate who it is that the board seeks to enjoin. The district court interpreted it as a request that the state court restraining order be dissolved. Even if it is construed as a request for an injunction against the Moore plaintiffs seeking to enforce the anti-busing act it would not be the basis for a three-judge court because Moore, et al., are not state officers, and thus the third requisite stated above is not met. The requisites for a three-judge court are not met by the relief ultimately granted by the district court. That court in dicated in its opinion that it would grant only a declaratory judgment (A. 61) and would deny injunctive relief. Later that portion of the opinion was withdrawn after the Court exchanged correspondence with all counsel seeking their views with respect to whether a direct appeal could be taken from the declaratory judgment. This Court has settled that the declaration alone does not support a direct appeal. Rockefeller v. Catholic Medical Center, 397 U.S. 820 (1970) and Mitchell v. Donovan, 39C U.S. 427 (1970). The Court below finally entered a general injunction stating merely that "All parties are hereby enjoined from enforcing, or seeking the enforcement of, the foregoing portion of the statute." (A. 65). This order was entered to I apply to both Moore and Swann. As applied to Moore it is ob viously an order against the Moore plaintiffs, who are not state officers, and thus the order does not require a three-judge court. The order cannot reasonably be construed as an injunction against» the school board in the Moore case, forthe board could not obtain ;i an injunction against itself and the Moore plaintiffs never sought any such order against the school board. One party must 15 have won the Moore case. Apparently the prevailing party in Moore was the school board. Of course the board was simultaneous ly enjoined in the Swann case at the behest of Swann et al. and directed to carry out the desegregation order without regard to the anti-busing law. (The difficulty in ascertaining who — if * anyone — won the Moore case nicely underlines the point we have made about lack of adverse parties.) Finally the Moore plaintiffs'application for an injunctive order filed in the district court on March 2, 1970 (A. 23-25) does not meet the requisites for a three-judge court. This motion is a rather curious document. In its first four paragraphs it asserts that the state anti-busing law (N.C.Gen.Stat. §115-176,1) ' provides that no pupils shall be excluded from or assigned to any school on a racial basis; that this law is in harmony with Brown v. Board of Education, 347 U.S. 483 (1954) and 349 U.S.294 (1955); that the statute also contains a proviso authorizing a school board to make assignments of pupils "in its sole discretion*; and that the school board was planning to implement a desegregation plan under which pupils will be assigned on the basis of race. Tht fifth paragraph states: ; "5. That it may be deemed that in such actions, the defendants are authorized and supported by the aforesaid proviso in the aforesaid statute, which permits them to assign and reassign school children in their ‘sole discretion1; that in such respect and in such application,however, the said proviso conflicts with the united States Constitution and specifically with the previsions of the Fourteenth Amendment to the Constitution, as interpreted and ruled ! by the supreme Court of the United States in the case of Brown v. Board of Education, re ferred to above, 347 U.S. 483 and 349 U.S. 294. (A.24). 16 It is entirely obvious upon examining this pleading that the Moore plaintiffs' motion for injunctive relief against a portion of the statute which the Moore plaintiffs rely upon in their complaint is merely a forum shopping device in an effort to get the case away from the resident district judge — Judge McMillan — and before other judges. This is entirely obvious on the face of the pleading and is confirmed by the fact that the attorneys for the Moore plaintiffs made motions seeking to get Judge McMillan recused or removed from the three judge case. (See Appendix No. 281, docket sheets page 10,1a.) The device is really transparent because the claim that the proviso in the anti-busing law should be enjoined is not pressed any further in the case. The only question presented by the Appellant's Brief in this Court is that the board should have Judge Snepp's state court injunction against the school board j restored. And, of course that injunction was not against the anti-busing law, but in purported reliance upon it. However,., the court need not decide whether a transparent forum shopping device such as the Moore motion for an injunction against a portion of the anti-busing law would justify a three- judge court if it stated a case requiring three judges. This I motion does notrequir three judges because of the fourth and fifth requisites listed above. The motion doesnot urge that the proviso giving the board discretion to assign pupils is unconsti- _3_/tutional, but only that the use of the statute will violate the 3/ An argument that the statutory provision giving boards discretion to assign pupils was unconstitutional on its face (and not in its use) would not be sufficiently substantial tc require a three-judge court. Ex parte Poresky,290 U.S. 30(1933). 17 Brown case. Thus no three—~iudge court is required, under Ex Parte Bransford, 310 U.S. 354, 361 (1940). It is also clear that the motion complains only of local Charlotte—Mecklenburg use of the discretion giving law and not of any statewide policy of the statute. Thus no three-judge court is required under Griffin v. County School Board of Prince Edward County, 377 U.S. 218, 227-228 (1964) . I 18 IV. The Moore Case Involves no Substantial Questions. An examination of Appellants' Brief will reveal that the Moore case presents no substantial questions. The greater por tion of the brief consists of an effort to mount a collateral attach on the decision of the Fourth Circuit and the single dis trict judge ordering desegregation of the public schools. It is entirely inappropriate and inadmissible that a state court pro ceeding can be used to review the decision of a federal district court as the Moore plaintiffs attempted. Bush v. Orleans Parish School Board, 188 F. Supp. 916, 925 (E.D. La. I960), affirmed, 36 U.S. 569 (1961). They never attempted to intervene in the Swann case in the district court or to file an amicus curiae brief. Instead, they attempted to obstruct the district court order by obtaining a late-Sunday-night ex parte injunction. These dis reputable tactics merit strong condemnation. The power of the dis trict court to protect itself against: such tactics is undoubted. Bush v. Orleans Parish School Board, 187 F. Supp. 42 (E.D. La. 1960), affirmed, 365 U.S. 569 (1961); Thomason v. Cooper, 254 F.2d 808 (8th Cir„ 1958); Meredith v. Fair, 328 F.2d 586 (5th Cir. 1952; en banc); 1A Moore's Federal Practice, 2319- 2320, 2614-2616; 28 U.S.C. § 2283. The effort to relitigate Judge McMillan's desegregation orders in the Mcore case is all the more inappropriate inasmuch as the Negro plaintiffs who obtained the Swann desegregation order after five years of litigation were not even named as par ties to the Moore case, and could not participate in making the record. 19 Finally, the decision of the three-judge court holding the anti-bussing law unconstitutional is firmly grounded in this Court's decisions. The case is plainly controlled by Green v. County School Board of New Kent County, 391 U.S. 430 (1968), for the reasons stated in the opinion below. The anti-bussing act disables school boards from performing their affirmative duty to dismantle dual systems and desegregate the schools. The Moore plaintiffs' argument that it violates the Brown decision to con sider race or utilize race in devising a desegregation plan is obviously designed to prevent the dismantling of existing dual systems. A board rendered "blind" to the race of its pupils is disabled from dismantling a dual segregated system and accomplish ing desegregation. The district court found that fifty-five percent of the public school pupils in North Carolina ride school buses every day and that busing was extensive in Charlotte (A. No. 281, pp. 1198a-1220a). The attempt to forbid the use of these extensive transportation facilities in any circumstances to accomplish the desegregation of the schools is simply in the teeth of the Brown and Green cases. The appeal presents no sub stantial question and should be dismissed under the doctrine of Bailey v. Patterson, 369 U.S. 31 (1962). 20 CONCLUSION For the foregoing reasons, it is suggested that this Court lacks jurisdiction over the Moore case and that the Motion to Consolidate that case for argument with the other cases involv ing Charlotte-Mecklenburg and allot additional time for argument by Moore> et al. should be denied. Respectfully submitted, JACK GREENBERG JAMES M. NABRIT, III NORMAN J. CHACHKIN 10 Columbus Circle New York, N. Y. 10019 J. LeVONNE CHAMBERS ADAM STEIN CHAMBERS, STEIN, FERGUSON & LANNING 216 West Tenth Street Charlotte, N. C. 28202 C. O. PEARSON 203-1/2 East Chapel Hill St. Durham, North Carolina 27702 ANTHONY G. AMSTERDAM Stanford University Law School Stanford, Calif. 94305 Attorneys for James E. Swann, et al. CERTIFICATE OF SERVICE This is to certify that I have this 1st day of October, 1970, served copies of the foregoing Memorandum of James E. Swann, et al. on attorneys for all parties named >>erein, by 21 United States mail, air mail special delivery, postage prepaid, addressed to the following: Whiteford S. Blakeney, Esq. North Carolina National Bank Building Charlotte, N. C. William H. Booe, Esq. Law Building Charlotte, N. C. William J. Waggoner, Esq. Weinstein, Waggoner, Sturges, Odom and Bigger 1100 Barringer Office Tower 428 North Tryon Street Charlotte, N. C. 28202 Benjamin S. Horack, Esq. Ervin, Horack and McCartha 806 East Trade Street Charlotte, N. C. Hon. Robert B. Morgan Attorney General of North Carolina Justice Building Post Office Box 629 Raleigh, N. C. 27602 Hon. Ralph Moody Deputy Attorney General Justice Building Post Office Box 629 Raleigh, N. C. 27602 Hon. Andrew A. Vanore, Jr. Assistant Attorney General Justice Building Post Office Box 629 Raleigh, N. C. 27602 Hon. Erwin N. Griswold Soli.citor General of the U. S. Department of Justice Washington, D. C. 20530 James M. Nabrit, III Attorney for James E. Swann, et ah