Memorandum of James E. Swann, et al., in Opposition to Motion for Stay

     [||32281f3c-80be-49fb-8848-bb1e46a5de50||] # * 
IN THE 

  

SUPREME COURT OF THE UNITED STATES 

October Term, 1970 

  

No. 281 

JAMES E., SWANN, et al., 

Petitioners, 

oi 

CHARLOTTE~-MECKLENBURG BOARD OF EDUCATION, 

et al. 

  

No. 349 

CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, 

et al., 

Petitioners, 

-Ve 

JAMES E. SWANN, et al 

  

  

  

MEMORANDUM OF JAMES E. SWANN, ET AL., IN OPPOSITION TO MOTION 
FOR STAY 

  

  

JACK GREENBERG 

JAMES M, NABRIT, III 
NORMAN J. CHACHKIN 

10 Columbus Circle 

New York, New York 10019 

J. LeVONNE CHAMBERS 

ADAM STEIN 

Chambers, Stein, Ferguson & Lanning 
216 West 10th Street 

Charlotte, North Carolina 28202 

C. O., PEARSON 

203% E. Chapel Hill Street 
Durham, North Carolina 27702 

ATTORNEYS FOR JAMES E. SWANN, ET AL. 

 



    

IN THE 

SUPREME COURT OF THE UNITED STATES 

October Term, 1970 

  

No. 281 

JAMES E, SWANN, et al., 

Petitioners, 

-t. - 

CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, 

et al. : 

  

No. 349 

CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, 

et al. 

Petitioners, 

-_-V 

JAMES E. SWANN, et al. 

  

  

  

MEMORANDUM OF JAMES E. SWANN, ET AL., IN OPPOSITION TO MOTION 
FOR STAY 

  

  

To The Honorable Warren E. Burger, Chief Justice of the United 
States And Circuit Justice for the Fourth Circuit: 

The Board of Education of Charlotte-Mecklenburg, North Carolina 

has made application for a stay of the August 3 and August 7, 1970 

orders of the District Court for the Western District of North Carolina 

which were entered following proceedings directed by this Court on 

June 29, 1970. The black pupils and parents, the plaintiffs below, 

oppose the application. 

STATEMENT 

On June 18, 1970, the plaintiffs filed a petition for writ of 

certiorari seeking review of the decision and judgment of the United 

States Court of Appeals for the Fourth Circuit. At the same time they  



  

moved the Court to advance and for pendente lite relief. The Court 
  

granted certiorari on June 29, deferred decision on the motion to 

advance and reinstated the district court's desegregation order of 

February 5, 10. The Court also authorized further proceedings 

in the district court to consider alternative means to desegregate 

the Charlotte-Mecklenburg schools. 

The remand instructions of the court of appeals required the 

school board to file a new desegregation plan. The school board 

did not file a new plan. Instead, it offered again the plan which 

had been rejected by the district court in February and by five 

of the six members of the court of appeals. 

At the recent hearing, the district court considered the 

"known plans for desegregation" (Br. X15 rhea were three "known 

plans” under review in addition to the Finger plan ordered on 

February 5 and the previously rejected board plan. There was a 

plan prepared by HEW, a plan prepared and offered by four of the 

nine members of the school board and an earlier plan prepared by 

Dr. BOS plans are described in petitioner's brief on 

the merits (pp. 30-34), a copy of which is attached. 

The Court again rejected the board plan as unconstitutional 

and also rejected thi HEW plan which had been roundly criticized by 

both plaintiffs and Stata ok As to the other plans, the court 

concluded: 

The court ordered (Finger) plan is the only 
complete plan before the court, and it is a 

  

1/ The order is printed at page 8l19a of the printed appendix which 

is on file with the Court. 

2/ The Memorandum of Decision and Order of August 3, 1970 is appended 

to petitioner's brief on the merits which is on file with the Court. 
A copy of the brief is attached to this Memorandum. 

3/ The board has erroneously described this plan as leaving some 
all-black schools (Appendix to Stay Application, A-6, p. 39). Under 
the plan, all the schools would be predominantly white. 

4/ See defendants' criticism of the HEW plan, appendix to petition, 

A-6, PP. 35-36. 

 



  

reasonable plan. The Board is herein directed 

to put the court ordered plan (with authorized 

modifications, if desired) into effect with the 

opening of school in the fall, unless they ex- 

ercise the options set out herein to adopt the 

4/5 minority Board plan (the Watkins plan) or 

an earlier draft of the Finger plan, or any 

combination of the three plus excerpts from the 

HEW plan, which complies with the directives in 

the February 5 order (Br. A2). 

The district court emphasized that its February 5 order, which had been 

reinstated by this Court, had left to the board the opportunity to 

fashion a different plan as long as the plan achieved the required 

results. 

The board exercised none of the choices afforded by the court 

(Br. A40), so the court again directed that the February 5 order be 

implemented (Br. A39). Thus the board now seeks relief from the same 

order which this Court reinstated on June 29, 1970. 

ARGUMENT 

(1) This Court has already decided in its June 29 order that 

the desegregation plan now in effect is an appropriate plan to be 

implemented pending final determination of the case. No reason has 

been advanced for disturbing that judgment of the full Court. 

The Court's order of June 29, 1970 directed the district judge 

to formulate the plan to be implemented pendente lite from plans be- 
  

fore him including the court ordered plan. Judge McMillan has been 

faithful to that task. He concluded after an eight day hearing that 

the only complete plan before him was the court ordered Finger plan 

(Br. A2), and therefore continued this Court's order in effect. 

The June 29 order of the full Court was based upon the doctrine 

  

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

 



which requires the establishment of a unitary Sghbol system 

pending litigation concerning the efficacy of any of its parts. 

The order of June 29 represents a judgment by the full bench that 

the plan ordered by the district court on February 5 would establish 

a unitary school system and is, at the least, an adequate plan for 

  implementation on a pendente lite basis. Nothing has transpired 

since June 29 which undermines that decision of the Court. On the 

contrary, the carefully considered decision by the district court 

on August 3, 1970 sets forth facts Joh lestailien that the plan 

ordered on February 5 is not only a proper plan pendente lite, but 
  

is an appropriate final plan for the desegregation of the Charlotte 

schools. 
| 

(2) The board's assertions that it lacks the buses and funds 

to carry out the Court's orders are in onflict with the fact findings 

of the district court. These findings have not been shown to be 

clearly erroneous. 

The board has orgaged in exaggerations of this kind since 

February in the hopes of avoiding its obligation to desegregate   its schools. Similar unsupported assertions resulted in a partial 

stay by the court of appeals on March 5, 1970 (922a). Supplementary 

proceedings resulted in findings by the district judge that the 

board's claims were grossly exaggerated (1198a, 1221a) which findings 

were found to be not clearly erroneous by the court of appeals (l262a). 

Most recently, these matters were fully litigated again during an 

eight day hearing. The district judge concluded: 

The defendants have plenty of money, 

plenty of know-how, plenty of buses on hand 

or available upon request, and plenty of 

capacity to implement the court ordered plan 

or the minority plan or any combination of 

the various plans. Their contentions to the 

contrary, and their five million dollar 

 



      

"estimates," when heard against the actual 
facts, border on fantasy (Br. A26). 

Factual assertions in paragraphs 6, 7, 8 and 9 of defendants’ 

application for a stay are filled with erroneous statements of 

fact concerning the transportation requirements of the court ordered 

plan. (Many of the board assertions are contradictory from paragraph 

to paragraph). These bald assertions are made in the teeth of the 

district court's findings. Under settled principles of law, the 

court's findings are not to be set aside unless clearly erroneous. 

Findings of fact shall not be set 
aside unless clearly erroneous, and 
due regard shall be given to the oppor- 
tunity of the trial court to judge of 
the credibility of the witnesses. 
(Rule 52 (a), Federal Rules of Civil 

Procedure). 

In considering defendants' application for a stay, the clearly 

erroneous rule should be given full effect. Board of Education of 
  

the City of New Rochelle v. Taylor, 82 S. Ct. 10 (1961) (Memorandum 
  

of Mr. Justice Brennan); Magnum Import Co. v. Coty, 262 U.S. 159 
  

(1923). Indeed, since the court of appeals has already explicitly 

determined that the essential findings under attack by the defendants 

were not clearly erroneous and because of the mandate of the Alexander 
  

v. Holmes County Board of Education, supra, that schools are to be 
  

desegregated "at once," the rule of Board of Education of the City 
  

School District of the City of New Rochelle, supra which requires an 
  

"extraordinary showing" should apply. The defendants make no such 

showing. 

Defendants also make several factual assertions which were 

never presented to the district court. Their claims about certain 

facilities which they say will have to be moved (Stay Application, 

paragraph 10) should be ignored. They have had more than an ample 

 



opportunity to litigate these matters below but have chosen not 

  

to do so. It is entirely improper for them to seek to do sO now, 

Claims are also made by way of assertion and affidavit as to 

the number of buses "actually" required to implement the order for 

secondary schools (Stay Application, paragraph 9). ‘Predictably, 

the numbers are large. We have no doubt that the board can design 

a transportation system to conform to its inflated estimates. We 

can hope that in the end it will operate an economical system. How- 

ever, as Judge McMillan observed in March: vperendants have offered 

various estimates of large increased costs for administration, parking, 

maintenance, driver education and other items. If they chose to incur 

excess costs, the Court can not prevent it" (l219a). The board cannot 

be allowed, however, to defeat the present rights of black children 

in Charlotte to a desegregated education, because of its gross ex- 

aggerations of the transportation requirements to achieve that end. 
  

We do not attempt to present a detailed rebuttal to the board's 

many assertions oF: fact in its application because they are so 

obviously in conflict with the facts as found by the district court 

and amply supported by the record. We ask that the Court consider 

our brief on the merits which fully sets forth the facts of the case 

with citations to the printed appendix on file with the Court as 

opposed to the unsupported and erroneous assertions of the defendants. 

(3) This Court's prior decisions in school desegregation cases 

require that the stay be denied. Schools are to be desegregated "at 

once" pending further litigation concerning remaining contentions 

of the parties. Alexander v. Holmes County Board of Education, 396 
    

U.S. 19 (1969); Carter v. West Feliciana Parish School Board, 396 
  

U.S. 290 (1970); Dowell v. Board of Education of the Oklahoma City 
  

Public Schools, 396 U.S. 269 (1969); Northcross v. Board of Education, 
      

397 U.S. 232 (1970), 

 



  

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

349 U.S. 294 (1955), this Court and the individual justices of the 

Court, in Chambers, have uniformly refused to use the discretionary 

power to issue stays in such a way as to delay implementation of 

lower court orders requiring that school desegregation proceed. 

Such a stay would be entirely unprecedented as the following cited 

cases, where stays have been denied or vacated, indicate. Lucy v. 

Adams, 350 U.S. 1 (1955); County School Board of Arlington County, 
  

Virginia v. Hamm, 4 Race Rel. L. Rep. 14 (1959) (order of Mr. Chief 
  

Justice Warren); United States v. Louisiana, 364 U.S. 500 (1960) ; 
    

Ennis v. Evans, 364 U.S. 802 (1960) ; Houston Independent School 
  

District v. Ross, 364 U.S. 803 (1960); Orleans Parish School Board 
  

  

v. Bush, 364 U.S. 803 (1960); Danner v. Holmes, 364 U.S. 939, 5 Race 

Rel. L. Rep. 1092 (1961); refusing to reinstate a stay dissolved by 

Chief Judge Tuttle of the Fifth Circuit in Holmes v. Danner, 5 Race 

Rel. L. Rep. 1091°.(1961); Board of Education v. Taylor, 82 8.Ct. 10 
  

(1961) (Opinion of Mr. Justice Brennan in Chambers); Meredith v. Fair, 
  

9 L. Ed. 2d 43, 83 S.Ct. 10 (1962) (Opinion of Mr. Justice Black in 

Chambers) ; Board of School Commissioners v. Davis, 11 L. Ed. 24 26, 
  

84 S. Ct. 10 (1963) (Opinion of Mr. Justice Black in Chambers); Wallace 

v. Lee, 387 U.S. 916 (1967); Caddo Parish School Board v. United 
  

States, 386 U.S. 1001 (1967); Boomer v. The Beaufort County Board of 
  

Education (August 30, 1968) (an unreported order by Mr. Justice Black 
  

vacating stay orders in two cases issued by a panel of the Fourth 

Circuit, and reinstating injunctions requiring prompt school desegrega- 

tion); School District of Greenville County v. Whittenberg, 25 L.ed. 
    

2d of 82 (1970); School District of Darlington County v. Stanley, 25 
  

L. ed. 2d 83 (1970); Board of Public Instruction of Manatee County v. 
  

Harvest, 25 L. ed. 24 529 (1970). 

 



    The board, however, seems to be asking this Court to reconsider 

Brown and the line of decisions enforcing its Cedvirgs, In the 

first place, it concludes from some fragmentary achievement test 

scores (Stay Application, paragraph 12) that the academic improve- 

ment of black children in elementary schools is insufficient to 

make desegregation worth the price. Secondly, it argues that there 

are other cities where residential segregation has also been produced 

by governmental action which have segregated schools and therefore 

charlotte schools should remain segregated. 

Without conceding for a moment the validity of the conclusions 

drawn by the defendants from the test data, it is sufficient to say 

that Brown requires the elimination of an evil more profound than can 

be measured upon standardized achievement tests. "Segregation would 

not become lawful, however, if all children scored equally on the 

tests" (Br. Al5). The board's argument that Charlotte can violate 

the constitutional rights of black children because other cities 

also remain segregated is morally flawed. 

"rhe fact that other communities might be 

more backward in observing the Constitution 

than Mecklenburg would hardly seem to support 

denial of constitutional rights to Mecklenburg 

citizens . . . There is no "Dow-Jones average" 

for such rights (663a)." 

Finally, we would ask the Court to consider precisely what 

these defendants seek. The school system was judged unlawfully 

segregated in April of 1969. It continued to operate essentially 

as before during the 1969-70 school year. The court of appeals 

concurred in these judgments of the district court. The board now 

requests that it be permitted to open school another year without 

change. Such a result would signal to these defendants and to 

school boards throughout the country that the tactics of delay 

 



  

Respectfully submitted, 

JACK GREENBERG 

JAMES M. NABRIT, III 

NORMAN J. CHACHKIN 

10 Columbus Circle 

New York, New York 10019 

J. LeVONNE CHAMBERS 

ADAM STEIN 

Chambers, Stein, Ferjuson & 7. 

216 West 10th Street 

charlotte, North Carolina 28202 

C. O. PEARSON 
203% E. Chapel Hill Street 
Durham, North Carolina 27702 

ATTORNEYS FOR JAMES E, SWANN, &T 

 



iN THE 

  

SUPREME COURT OF THE UNITED STATES 

Cc. 7.1970, Ro.: 281 

  

JAMES E. SWANN, et al., 

Petitioners, 

ll 

CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, 

et al., 

  

O.7. 1970, No. 349 

CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, 

et al., 

wy. ™ 

JAMES E. SWANN, et al. 

  

CERTIFICATE OF SERVICE 
  

This is to certify that on the 24th day of August, 1970, a cop: 

of the foregoing Memorandum of James E. Swann, et al., in Opposition 

to Motion for Stay was served upon counsel for the parties here 

by the United States mail, airmail, postage prepaid, as follows 

William J. Waggoner, Esq. 
Weinstein, Waggoner, Sturges, Cdom and Bigger 
1100 Barringer Office Tower 
Charlotte, North Carolina 

Benjamin S. Horack, Esq. 
Ervin, Horack and McCartha 

806 Trade Street 

Charlotte, North Carolina 

Hon. Erwin N. Griswold 
Solicitor General of the United States 
Department of Justice 
Washington, D. C. 

Honorable Robert Morgan 
Attorney General 
State of North Carolina 
Raleigh, North Carolina 

  

Attorney for James E. Swann, 
et al. [||32281f3c-80be-49fb-8848-bb1e46a5de50||]