Swann v. Charlotte-Mecklenburg Board of Education Memorandum of James E. Swann

    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