Motion to Affirm or Dismiss

     [||2514eeea-4faa-4773-821b-3d2c92a6f40c||] IN THE 

Supreme Court of the United States 
OcroBer Term, 1970 

No. 498 

  

NortH CAROLINA STATE Bosrp oF Epucation, ef al., 

Appellants, 

Y. 

James KE. Swann, ef al., 

Appellees. 
  

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF NORTH CAROLINA 

  

  

MOTION TO AFFIRM OR DISMISS 

  

  

JACK GREENBERG 

James M. Nasrir, 111 

NorMAN J. CHACHKIN 

10 Columbus Circle 

New York, New York 10019 

J. LEVonNeE CHAMBERS 

ApaM STEIN 

CuamBEirs, STEIN, FERGUSON & LANNING 

216 West Tenth Street 

Charlotte, North Carolina 28202 

C. O. Pearson 

203%, Hast Chapel Hill Street 

Durham, North Carolina 27702 

Attorneys for Appellees 

  

   



INDEX 

PAGE 

Opinions BelOW iif. deiisisisansinsmismsssiveseni iiiiseseorsamsmart suns 1 

JULISARCLION ........o.ccccovsicrecosssrosesscsesosusesacsstesssbsncesnamassaboimne 2 

Questions Pregented................ I.  .  ......... 2 

SIAlOMENt or a in ies 3 

TRLrodUeLIonN ..........cc.ociocemsmmesskcrstrmsussansssossansssossansrassstonsss 3 

Proceedings during 1969-70 before a Single Dis- 

ATICL JUAGE oi... ocrreemisicrrsesvamasmanesrasessasinsrnsstrbeserians 4 

Obstruction of the District Court Orders; Conven- 

ing of Three-Judge Court .........ceecevesosivemssmsnsonios 6 

ARGUMENT— 

I. The Case Presents No Substantial Questions 

Not Previously Decided by This Court ............ 11 

A. This Court Decided in 1809 in United 

States v. Peters That State Legislatures 

Could Not Validly Annul Federal Court 

JUASENIS ui iit ditt sssthe neste 11 

B. This Court Decided in Green v. County 

School Board of New Kent County That 

School Boards Must Take Affirmative 

Action to Disestablish Dual Segregated 

Behioo]l Systems ............coccecceermessioeesrs=gresensuencs 16 

II. The Appeal Should Be Dismissed Because 

the Case Was Not Required to Be Heard by 

a. Three-Judge Court..........ccivicmmcomorssinees 17  



  

11 

PAGE 

A. The Case Involved Primarily a Supremacy 

Clause Issue and Thus no Three-Judge 

Court Was Required Under the Doctrine 

of Swift £ Co. v. Wickham ............................ 17 

B. The Anti-Bussing Law Is So Obviously 

Unconstitutional That no Three-Judge 

Court Was Bequired .oeeoccoovnneooeoee 18 

CONGUURION oe eed 19 

TABLE oF AUTHORITIES 

Cases: 

Bailey v. Patterson, 369 U.S. 31 (1962)... ........ 5... 3,10, 18 
Brown v. Board of Education, 349 U.S. 294 (1955)........ 12 
Brown v. Board of Education, 347 U.S. 483 (1954)......12, 19 

Brown v. South Carolina State Board of Education, 

296 F. Supp. 199 (D. S.C. 1968), judgment affirmed, 
BSUS, 222 (1968)... ce 13 

Bryant v. State Board of Assessment, 293 F. Supp. 
BSB DNCHI968)... sn. ae 15 

Bush v. Orleans Parish School Board, 194 F'. Supp. 182 
(E.D. La. 1961), judgment affirmed, sub nom. Tug- 
well v. Bush, 367 U.S. 907 (1961) and Gremillion v. 
United States, 368 US, 13 (1961)...cc...icine nn 13 

Bush v. Orleans Parish School Board, 191 F. Supp. 
871 (E.D. La. 1961), judgment affirmed, sub nom. 
Legislature of Louisiana v. United States, 367 U.S. 
907 (1961) and Denny v. Bush, 367 U.S. 908 (1961)... 13 

Bush v. Orleans Parish School Board, 190 F. Supp. 861 
(E.D. La. 1960), judgment affirmed, New Orleans v. 
Bush, 366 U.8, 212 (1961). opiates iin ve 12 

   



111 

PAGE 

Bush v. Orleans Parish School Board, 188 F. Supp. 916 

(E.D. La. 1960), stay denied sub nom. United States 

v. Louisiana, 364 U.S. 500 (1960), judgment affirmed, 

S5U8. 560 (1961)... 0. 12, 14 

Bush v. Orleans Parish School Board, 187 F. Supp. 42 

(E.D. La. 1960), stay denied, 364 U.S. 803, judgment 

affirmed, Orleans Parish School Board v. Bush, 365 

US. B60 (ION)... 12, 14 

Cooper'v, Aaron, 358 US. 1 (1938)... ...... 12, 16 

Xx parte Poresky, 200U.8, 36-(1933).................i. 18 

Faubus v. United States, 254 F.2d 797 (8th Cir. 1958), 

cert. denied, 358-11.8, 890. .vnnvciecie ll Uh 15 

(Godwin v. Johnston County Board of Education, 301 

F.Supp. 339(ED. N.C. 1969)... 15 

Green v. County School Board of New Kent County, 

DOL UR 430 (1968). ieee 16, 18 

Hall v. St. Helena Parish School Board, 197 F. Supp. 

649 (K.D. La. 1961), judgment affirmed, 368 U.S. 515 

(1961) »ccoveeiiinan idl al i SE Sls Be 13 

Harvest v. Board of Public Instruction of Manatee 

County, 312 I. Supp. 269 (M.D. Fla. 1970)................ 15 

Lee v. Macon County Board of Education, 267 F. Supp. 

458 (M.D. Ala. 1967), affirmed sub nom. Wallace v. 

United States, 380 US. 215 (1967)... ...... .......... 13,15 

Louisiana Education Commission for Needy Children 

v, U. 8. District Court, 390 U.S. 939 (1968)................ 13 

Marbury v. Madison, (US) 1 Cranch 137 ....................... 16 

Meredith v. Fair, 328 F.2d 586 (5th Cir. 1962)........... 15  



  

iv 

Mitchell v.. Donovan, 898 U.S. 427 (1970)........ilind 10 

Moore v. Charlotte-Mecklenburg Board of Kduecation, 

No.ddd OF. 1970... ail 3 

Moore v. Charlotte-Mecklenburg Board of Education, 

312 I. Supp. 503 (W.D. N.C. 1970).............«. ..... 1,8 

Poindexter v. Louisiana Financial Assistance Commis- 

sion, 275 F. Supp. 833 (E.D. La. 1967), judgment af- 

firmed, 330 US, 571 (1968)... oo 13 

Poindexter v. Louisiana Financial Assistance Commis- 

sion, 296 KF. Supp. 686 (E.D. La. 1968), judgment 

affirmed, sub nom. Louisiana Education Commission 

for Needy Children v. Poindexter, 393 U.S. 17 (1968) 13 

Rockefeller v. Catholic Medical Center, 397 U.S. 820 

AOI) ie 10 

Sterling v. Constantin, 287 U.S. 378 (1932)... 15 

Swann v. Charlotte-Mecklenburg Board of Education, 

S12 F.Supp. 503. (WD. N.C.1970) .... no... 1 

Swann v. Charlotte-Mecklenburg Board of Education, 

No. 281,010, 1970... 3,4,5 

Swann v. Charlotte-Mecklenburg Board of Education, 

243 F. Supp. 667 (W.D. N.C. 1965), affirmed, 369 

F.2d 29 (4th Cir. 1966); 300 F. Supp. 1358 (1969); 

300 F'. Supp. 1381 (1969) ; 306 F. Supp. 1291 (1969) ; 

306 F. Supp. 1299 (1969) ; 306 F. Supp. 1301 (1969) ; 

306 F. Supp. 1306 (1969); 311 F. Supp. 265 (1970)... 4 

Swift & Co. v. Wickham, 382 U.S. 111 (1965)............ 3,10, 17 

Thomason v. Cooper, 254 F.2d 808 (8th Cir. 1958)........ 15 

Turner v. Memphis, 369 U.S, 350 (1962)... .... 18 

United States v. Peters, (US) 5 Cranch 115, 3 L.Ed. 53 11 

United States v. Wallace, 222 F. Supp. 485 (M.D. Ala. 

LEE nea en La Ae a 15 

   



Statutes: PAGE 

Constitution of the U. S., Article VI, Supremacy Clause 

2,10 

28 1.8.0, $1288 ..........cocinisesisussissmmnesasemnaressnisasisvasvaraasaos 2,4, 17 

28 DSC, SI nr ts 5,10,17 

23 U.8.0, $2288... icciccietoiscmmsssimssissoibiomussnsessovasssiorsssoes 14 

28 US.0 3208 icing etis 5 

N.C. Gen. Stat, §115-176.1 .........cccneev vere 2,3,7,10,11,16 

Other Authorities: 

1A Moore's Federal Practice .............coooovveiini 14 

Rule 16, Rules of the Supreme Court of the United 

4 EE LR Os en Cl LE et 1 

 



IN THE 

Supreme Comet of the United States 

OctoBer Term, 1970 

No. 498 

  

NortH CaroLiNA STATE Boarp or Ebpucatiow, ef al., 

Appellants, 

Y. 

James KE. Swann, et al., 

Appellees. 
  

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF NORTH CAROLINA 

  

MOTION TO AFFIRM OR DISMISS 

Appellees, pursuant to Rule 16 of the Rules of the Su- 

preme Court of the United States, move that the final judg- 

ment and decree of the district court be affirmed on the 

ground that it is manifest that the questions are so unsub- 

stantial as not to warrant further argument, or, in the 

alternative, to dismiss the appeal herein on the ground 

that it 1s not within the jurisdiction of the Court. 

Opinions Below 

The opinion of the three-judge district court is reported 
as Swann v. Charlotte-Mecklenburg Board of Education 

(also Moore v. Charlotte-Mecklenburg Board of Educa- 

tion), 312 F. Supp. 503 (W.D. N.C. 1970). 

 



  

Jurisdiction 

Appellees submit that the Court does not have juris- 

diction of a direct appeal pursuant to 28 U.S.C. §1253 

because the case is not a “civil action, suit or proceeding 

required by any Act of Congress to be heard and deter- 

mined by a district court of three judges” (emphasis 

added). Appellees’ argument in support of the contention 

that a three-judge court was not required appears infra 

in Argument II. 

Questions Presented 

1. Whether the judgment below may be affirmed on the 

ground that N.C. Gen. Stat. {115-176.1 was an unconsti- 

tutional legislative attempt to nullify rights of the appel- 

lees under a prior judgment of a United States District 

Court, and that the state statute thus violates the Suprem- 

acy Clause of Article VI of the Constitution of the United 

States. 

2. Whether the court below was correct in determining 

that portions of N.C. Gen. Stat. §115-176.1, known as the 

anti-bussing law, are unconstitutional because they inter- 

fere with a school board’s performance of its affirmative 

constitutional duty under the equal protection clause of 

the Fourteenth Amendment to eliminate racial segregation 

in the public schools. 

3. Whether the appeal should be dismissed on the ground 

that no direct appeal from the district court is provided 

where the case was not one required to be heard by a dis- 

trict court of three judges since: 

(a) the case involves an issue under the Supremacy 

Clause (the conflict of a state law with a prior federal 

   



3 

court order) and thus no three-judge court is required 

under the doctrine of Swift & Co. v. Wickham, 382 U.S. 
111 (1965); and 

(b) numerous prior decisions of this Court make it plain 

that the statute is unconstitutional and thus no three-judge 
court is required under the doctrine of Bailey v. Patterson, 

369 U.S. 31 (1962). 

Statement 

Introduction 

This is a direct appeal by the North Carolina State Board 

of Kducation and a group of state officials® from the order 

of a three-judge district court ruling that a portion of 

N.C. Gen. Stat. §115-176.1, known as the anti-bussing law, 

was unconstitutional because it interfered with the affirma- 

tive duty of local school boards under the Fourteenth 

Amendment to desegregate the public schools. A companion 

appeal involving the same judgment is also pending here 

as No. 444, O.T. 1970, sub nom. Moore v. Charlotte-Mecklen- 

burg Board of Education. The proceeding in the three- 

judge court was an ancillary proceeding connected with the 

school desegregation case involving Charlotte-Mecklenburg 

which is also now pending here as Swann v. Charlotte-Meck- 

lenburg Board of Education, O.T. 1970, No. 281, certiorari 

granted June 29, 1970. 

This direct appeal is in an unusual posture in that it 

has been scheduled for argument and briefing, prior to any 

action by the Court on the Jurisdictional Statement. (Order 

of the Chief Justice herein dated August 31, 1970.) Not- 

1 Appellants herein include the State Superintendent of Public 
Instruction, the Governor of North Carolina, the Controller of the 
State Board of Education, and a judge of the Superior Court of 
Mecklenburg County who issued an order allegedly interfering with 
the federal court desegregation orders. 

   



  

2% 

withstanding this action, appellees believe it appropriate 

to file this response to the Jurisdictional Statement because 

we believe the case involves no substantial issues not pre- 

viously decided by the Court and because we doubt that 

the necessary jurisdictional requisites for direct appeal are 

present under 28 U,S.C. §1253. 

Proceedings during 1969-70 before a Single District Judge 

The school desegregation case brought by Negro pupils 

and parents against the Charlotte-Mecklenburg Board of 

Education was commenced in 1965 and there has been ex- 

tensive litigation ever since which has culminated in the 

Swann case now pending in this Court. A full statement 

of the history of the proceedings from 1965 to date is 

contained in Petitioners’ Brief in Swann, No. 281, O.T. 

1970. The case has resulted in numerous reported deci- 

sions which are cited in the note below. 

On April 23, 1969, after a plenary hearing, the district 

judge rendered a decision and order finding that the school 

system was still unlawfully segregated and directing that 

that defendants file a plan for complete desegregation of 

the system (Swann, supra, 300 F. Supp. 1358). The court 

specifically directed that the school board consider altering 

attendance areas, pairing or consolidation of schools, trans- 

portation or bussing of students and any other method 

which would effectuate a racially unitary system. Exten- 

sive litigation ensued as the board submitted a series of 

proposals and the court rejected them as unsatisfactory to 

disestablish the segregated system. In the midst of this 

2 See, e.g., Swann v. Charlotte-Mecklenburg Board of Education, 
243 F. Supp. 667 (W.D. N.C. 1965), affirmed, 369 F.2d 29 (4th 
Cir. 1966) ; 300 F. Supp. 1358 (1969) ; 300 F. Supp. 1381 (1969) ; 
306 F. Supp. 1291 (1969) ; 306 F. Supp. 1299 (1969) ; 306 F. Supp. 
1301 (1969) ; 306 F. Supp. 1306 (1969) ; 311 F. Supp. 265 (1970. 

   



5 

litigation about the remedy to implement the April 23 deci- 

sion, the North Carolina legislature enacted the anti-bussing 

bill proposed by a member of the Mecklenburg delegation. 

The measure which was ratified July 2, 1969, included the 

following two sentences (later held unconstitutional) : 

No student shall be assigned or compelled to attend 

any school on account of race, creed, color or national 

origin, or for the purpose of creating a balance or 

ratio of race, religion or national origin. Involuntary 

bussing of students in contravention of this Article is 

prohibited, and public funds shall not be used for any 

such bussing. 

Plaintiffs in the Swann case promptly obtained leave to 

file a supplemental complaint which sought injunctive and 

declaratory relief against the above-quoted portion of the 

anti-bussing law; they asked that a three-judge court be 

convened pursuant to 28 U.S.C. §§2281 and 2284 (App. 

No. 281, pp. 460a-479a). However, no three-judge court 

was convened at that time and the court took no action 

on the requests for relief because the school board thought 

that the anti-bussing law did not interfere with the school 

board’s proposed plan to bus about 4,000 black children 

to white suburban schools (306 F. Supp. at 1295). 

After further hearings to consider the board’s further 

proposals during the fall of 1969 and the operation of the 

interim plan (which involved bussing black children to 

formerly white schools), the district court finally directed 

that a plan be prepared by the court’s expert consultant. 

The court consultant’s plan was ordered into effect in an 

order entered February 5, 1970, reported at 311 F. Supp. 

265. The February 5 order provides for the alteration of 

some school attendance areas, the creation of certain “satel- 

lite” or non-contiguous zones from which pupils would be 

transported to school, the pairing and clustering of certain 

 



  

6 

schools with the alteration of grade structures, and trans- 

portation for pupils who live more than walking distance 

(as determined by the board) from the school to which 

they are assigned. The pairing and clustering of 10 black 

and 24 white elementary schools will result in pupils of 

both races being transported to schools which were for- 

merly segregated. The district court made extensive sup- 

plemental findings about the amount of transportation re- 

quired and its relation to the large school bus transportation 

system which was already in operation in the community 

(App. No. 281, p. 1198a). 

Obstruction of the District Court Orders; Convening of 
Three-Judge Court 

Following the order of February 5, 1970, numerous citi- 

zens, under the banner of “Concerned Parents Association,” 

held meetings to protest the order, vowing to defy, delay, 

obstruct and in any way prevent its implementation. On 

January 30, 1970, they filed a proceeding in the Mecklen- 

burg County Superior Court (Harris v. Self) and obtained 

an ex parte temporary restraining order, purportedly pre- 

venting the superintendent from paying the fees and ex- 

penses of the court consultant as directed on December 2, 

1969. They filed an amended complaint on February 12, 

1970, in the Mecklenburg County Superior Court and ob- 

tained an amended temporary restraining order which en- 

joined the Charlotte-Mecklenburg Board of Education from 

expending any money for the purpose of purchasing or 

renting any motor vehicle or operating or maintaining such 

for the purpose of involuntarily transporting students in 

the Charlotte-Mecklenburg school system from one school 

to another and from one district to another. The order 

entered by the Mecklenburg Superior Court on January 30, 

1970, was modified to permit payment of the court con- 

sultant on approval of the Board of Education. 

   



7 

On February 11, 1970, Governor Robert W. Scott issued 

a public statement to the effect that North Carolina General 

Statute §115-176.1 prohibited the involuntary bussing of 

students, that he had taken an oath to uphold the laws of 

the State of North Carolina, and that he was directing all 

officials to enforce this statute. On February 12, 1970, 

Governor Scott instructed the Director of the Department 

of Administration that “use of public funds for providing 

bus transportation shall be strictly in accordance with the 

appropriations made by the 1969 General Assembly, and 

for no other purpose. No authorization will be given for 

use of any other funds to provide bussing to achieve school 

attendance for the purpose of creating a balance or ratio, 

religion or national origins” (sic.). Copies of the letter 

were forwarded to Dr. A. Craig Phillips, the Superin- 

tendent of Public Instruction; Dr. Dallas Herring, Chair- 

man of the State Board of Education; Mr. A. C. Davis, 

the Controller of the State Board of Education; and Mr. 

Tom White, Chairman of the State Advisory Budget Com- 

mission. Shortly thereafter, Dr. A. Craig Phillips issued 

a similar statement and further advised that he was op- 

posed to bussing. On February 23, 1970, he wrote to Dr. 

William S. Self, Superintendent of the Charlotte-Mecklen- 

burg Schools and advised, “No additional State funds will 

be allocated to the Charlotte-Mecklenburg Board of Educa- 

tion to provide bussing of students for the purpose of 

creating a balance or ratio of students in the schools.” 

On the same date, Mr. A. C. Davis directed a memorandum 

to the superintendent of each local school system in the 

State advising that the General Assembly had appro- 

priated funds for the operation of 9,510 buses during the 

1969-70 school year and 9,635 buses during the 1970-71 

school year. The memorandum advised that approximately 

9,443 buses were presently in use and that, “The appro- 

priation does not include funds for the transportation of 

 



  

8 

thousands of additional students and the operating costs 

of hundreds of additional buses which might be made neces- 

sary by the reorganization of schools. No additional State 

funds will be allocated to school administrative units to 

provide bussing of students for the purpose of creating 

a balance or ratio of students in schools.” 

On February 13, 1970, plaintiffs moved the court (App. 

No. 281, p. 840a) to add as additional parties-defendant the 

(Governor of the State; Mr. A. C. Davis, Controller of the 

State Board of Education; the Honorable William K. 

McLean, the Superior Court Judge who issued the tem- 

porary restraining order, each plaintiff in the Superior 

Court proceeding and their attorney. Plaintiffs also asked 

the court to add as additional parties-defendant the Honor- 

able James Carson who initially proposed the statute here 

in question and who had made several public statements 

of his intention to file a proceeding in the state court to 

enjoin the school board from complying with the Feb- 

ruary 9, 1970, order of the court. Plaintiffs further sought 

an injunction against the enforcement of the state court 

restraining order as modified on February 12, 1970, and 

to enjoin the defendants from further interference with 

the implementation of the orders of the district court. 

On February 20, 1970, the resident district judge entered 

an order reciting the various events and requesting that 

the Chief Judge of the Circuit designate a three-judge 

district court (App. No. 281, p. 845a). A three-judge court 

was designated on February 24, 1970, and additional par- 

ties were added by order of February 25, 1970 (App. No. 
281, p. 901a). 

Meanwhile, on Sunday night, February 22, 1970, approxi- 

mately 50 adults on behalf of themselves and their children 

filed another proceeding (Moore v. Charlotte-Mecklenburg 
Board of Education) in the Mecklenburg County Superior 

   



9 

Court seeking to restrain desegregation of the Charlotte- 

Mecklenburg schools as directed by the district court. At 

10:16 p.m. on that Sunday night, the Honorable Frank 

Snepp issued an ex parte temporary restraining order en- 

joining the Charlotte-Mecklenburg Board of Education and 

its Superintendent 

from instituting or implementing or putting into oper- 

ation or effect, or expending any public funds upon, 

any plan or program under which 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 be- 

cause of their race or color. 

On Thursday, February 26, 1970, the board removed the 

Moore case to the United States District Court. At a spe- 

cial meeting of the board on Friday, February 27, 1970, 

the board chose to comply with the order of the state court 

rather than the orders of the federal district court. The 

Superintendent announced that all planning and activities 

then underway for implementation of the district court’s 

order of February 5, 1970, were terminated. On the same 

date, plaintiffs moved the court to add the plaintiffs in 

the Moore case, their lawyers and the Honorable Frank 

Snepp as additional parties-defendant in this case. Plain- 

tiffs further sought an order enjoining the enforcement of 

the state court order and enjoining any further efforts by 

all of the defendants from taking steps which would prevent 

or inhibit the implementation of the orders of the district 

court. Plaintiffs also sought an order finding all members 

of the Charlotte-Mecklenburg Board of Kducation and its 

Superintendent in contempt and imposing a fine or im- 

prisonment for each day that the defendants failed to 

comply with the court’s orders. 

 



  

10 

The district court on March 6, 1970, entered an order 

decreeing that the order by Superior Court Judge Snepp 

in the Moore case “is hereby suspended and held in abeyance 

and of no force and effect pending the final determination 

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” (App. No. 281, pp. 925a-927a). The three- 

judge court eventually ruled in an opinion dated April 28, 

1970, that the challenged portions of the anti-bussing law 

were unconstitutional in violation of the equal protection 

clause of the Fourteenth Amendment and the Supremacy 

Clause of Article VI of the Constitution (312 F. Supp. 

503, 510). The initial opinion denied injunctive relief and 

granted only a declaratory judgment. However, this por- 

tion of the original opinion was withdrawn® and the court 

enjoined all of the parties in the Swann and Moore cases 

from “enforcing, or seeking the enforcement of” the uncon- 

stitutional portion of N.C. Gen. Stat. 115-176.1. 

Although plaintiffs Swann, et al. originally sought a 

three-judge court, they subsequently urged upon the dis- 

trict court that it was empowered to act on the matter as 

a single judge and that a three-judge court was not re- 

quired by 28 U.S.C. {2281 because of the doctrine of Swift 

& Co. v. Wickham, 382 U.S. 111 (1965), and Bailey v. Pat- 

tersom, 369 U.S. 31 (1962). The three-judge court rejected 

these arguments that a three-judge court was not required. 
(312 F. Supp. 503, 507.) 

3 The three-judge court determined to grant an injunction rather 
than merely a declaratory judgment after taking note of this 
Court’s decisions in Rockefeller v. Catholic Medical Center, 397 
U.S. 820 (1970), and Mitchell v. Donovan, 398 U.S. 427 (1970). 

* The court below said that it rejected “plaintiffs’ attack upon 
our jurisdiction” (312 F. Supp. at 507). However, plaintiffs, by 
a brief filed in the trial court sought to make clear that their argu- 
ment that a single judge might properly have disposed of the case 
was not a denial that the three-judge district court had jurisdiction 
over the matter, but only an argument that three judges were not 
required to decide the case under 28 U.S.C. §2281. 

   



11 

ARGUMENT 

I. 

The Case Presents No Substantial Questions Not Pre- 

viously Decided by This Court. 

A. This Court Decided in 1809 in United States v. Peters 
That State Legislatures Could Not Validly Annul Fed- 
eral Court Judgments 

It is manifest that the challenged provisions of the anti- 

bussing law, which forbid the consideration of race in the 

assignment of pupils, and forbid their being “involuntarily 

bussed” attempt to nullify the April 23, 1969, order of the 

United States District Court requiring the desegregation 

of the public schools in the Charlotte-Mecklenburg system. 

The anti-bussing law is a bald attempt to legislatively re- 

peal the judgment of a court of the United States deciding 

rights of litigants under the Constitution and laws of the 

United States. The district court order required, inter alia, 

the implementation of plans to reassign pupils so as to 

eliminate racially segregated schools and the consideration 

of the use of transportation facilities to effect that purpose. 

The effect of N.C. Gen. Stat. §115-176.1 is to forbid the 

school board from engaging in affirmative steps to bring 

about racial integration of the schools and eliminate the 

dual system established under the compulsion of state segre- 

gation laws. 

This Court unanimously rejected such an assertion of 

state power to set aside a federal court decree in an historic 
opinion by Chief Justice John Marshall delivered on Feb- 

ruary 20, 1809, and such assertions have been emphatically 

rejected ever since. In United States v. Peters, (US) 5 

Cranch 115, 136, 3 L.Ed. 53, 59, it was stated: 

 



  

12 

If the legislatures of the several states may, at will, 

annul the judgments of the courts of the United States, 

and destroy the rights acquired under those judgments, 

the constitution. itself becomes a solemn mockery, and 

the nation is deprived of the means of enforcing its 

laws by the instrumentality of its own tribunals. So 

fatal a result must be deprecated by all; and the people 

of Pennsylvania, not less than the citizens of every 

other state, must feel a deep interest in resisting prin- 

ciples so destructive of the Union, and in averting 

consequences so fatal to themselves. 

In recent years there have been a number of attempts 

by state officials to nullify decrees of the federal courts 

requiring implementation of this Court’s decisions in Brown 

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

Board of Education, 349 U.S. 294 (1955). The most serious 

such attempt prompted a unanimous opinion of all the 

Justices of the Court in 1958 in Cooper v. Aaron, 358 U.S. 

1, 18 (1958): “No state legislator or executive or judicial 

officer can war against the Constitution without violating 

his undertaking to support it.” 

Ever since Cooper v. Aaron, the Court has disposed of 

similar contentions in per curiam decisions nullifying ef- 

forts at legislative interposition and nullification of deseg- 

regation decrees of the lower federal courts. Bush v. Or- 

leans Parish School Board, 187 F. Supp. 42 (E.D. La. 

1960; three-judge court), stay demied, 364 U.S. 803, judg- 

ment affirmed, Orleans Parish School Board v. Bush, 365 

U.S. 569 (1961); Bush v. Orleans Parish School Board, 

188 F. Supp. 916 (E.D. La. 1960; three-judge court), stay 

denied, sub nom. Umited States v. Louisiana, 364 U.S. 500 

(1960), judgment affirmed, 365 U.S. 569 (1961); Bush v. 

Orleans Parish School Board, 190 F. Supp. 861 (KE.D. La. 

1960; three-judge court), judgment affirmed, New Orleans 

   



13 

v. Bush, 366 U.S. 212 (1961) ; Bush v. Orleans Parish School 

Board, 191 F. Supp. 871 (E.D. La. 1961 ; three-judge court), 

judgment affirmed, sub nom. Legislature of Louwisana Vv. 

United States, 367 U.S. 907 (1961) and Denny v. Bush, 

367 U.S. 908 (1961) ; Bush v. Orleans Parish School Board, 

194 F. Supp. 182 (E.D. La. 1961; three-judge court), judg- 

ment affirmed, sub nom. Tugwell v. Bush, 367 U.S. 907 

(1961) and Gremillion v. United States, 368 U.S. 11 (1961) ; 

Lee v. Macon County Board of Education, 267 F. Supp. 458 

(M.D. Ala. 1967; three-judge court), affirmed, sub nom. 

Wallace v. United States, 3839 U.S. 215 (1967); Hall v. 

St. Helena Parish. School Board, 197 F. Supp. 649 (E.D. 

La. 1961; three-judge court), judgment affirmed, 368 U.S. 

515 (1961); Poindexter v. Louisiana Financial Assistance 

Commission, 275 F. Supp. 833 (E.D. La. 1967; three-judge 

court), judgment affirmed, 389 U.S. 571 (1968) ; Powndexter 

v. Louisiana Financial Assistance Commission, 296 F. Supp. 

686 (E.D. La. 1968; three-judge court), judgment affirmed, 

sub nom. Lowisiana Education Commission for Needy Chil- 

dren v. Poindexter, 393 U.S. 17 (1968) ; Louisiana Educa- 

tion Commassion for Needy Children v. U. S. District Court, 

390 U.S. 939 (1968) (prohibition denied) ; Brown v. South 

Carolina State Board of Education, 296 F. Supp. 199 (D. 

S.C. 1968; three-judge court), judgment affirmed, 393 U.S. 

222 (1968). 

The decisions of the district court in this case to require 

the further desegregation of the schools and to require 

the use of bussing and other techniques were of course not 

final until appropriate appeals were exhausted. But rather 

than resorting to appeals in due course, the state officials 

in North Carolina engaged in discreditable attempts to 

review and nullify the judgments of the district court by 

resort to state legislative, executive and judicial actions. 

These assertions of power were sought to be justified by 

arguments that decisions of the district court need not be 

 



  

14 

obeyed and were not lawful until upheld by this Court. 

Such a premise must be emphatically rejected, as it was 

in the Bush case: 

From the fact that the Supreme Court of the United 

States rather than any state authority is the ultimate 

judge of constitutionality, another consequence of equal 

importance results. It is that the jurisdiction of the 

lower federal courts and the correctness of their deci- 

sions on constitutional questions cannot be reviewed 

by the state governments. Indeed, since the appeal 

from their rulings lies to the Supreme Court of the 

United States, as the only authoritative constitutional 

tribunal, neither the executive, nor the legislature, nor 

even the courts of the state, have any competence in 

the matter. It necessarily follows that, pending re- 

view by the Supreme Court, the decisions of the sub- 

ordinate federal courts on constitutional questions 

have the authority of the supreme law of the land 

and must be obeyed. Assuredly, this is a great power, 

but a necessary one. See United States v. Peters, 

supra, 9 Cranch 135, 136, 9 U.S. 135, 136. (Bush v. 

Orleans Parish School Board, 188 F. Supp. 916, 925 

(E.D. La. 1960).) 

The power of the federal district court to stay state 

court proceedings where necessary to “protect or effectuate 

its Judgments” against threatened relitigation in state 

courts 1s conferred by 28 U.S.C. §2283. See 1A Moore’s 

Federal Practice, 2319-2320, 2614-2616. Such orders re- 

straining conflicting state court proceedings have been is- 

sued in a number of school desegregation cases. Bush v. 

Orleans Parish School Board, 187 F. Supp. 42 (E.D. La. 

1960; three-judge court), affirmed, 365 U.S. 569 (1961) 

(both the litigants and state judge were enjoined in Bush) ; 

   



15 

Thomason v. Cooper, 254 F.2d 808 (8th Cir. 1958); Mere- 

dith v. Fair, 328 F.2d 586 (5th Cir. 1962; en banc). 

Nor does it matter that one of the state officers involved 

1s the Governor of the State, for governors are in no dif- 

ferent position than other state officials in terms of their 

duty to obey federal court judgments. Sterling v. Constan- 

tw, 287 U.S. 378, 393 (1932) ; Faubus v. United States, 254 

F.2d 797 (8th Cir. 1958), cert. den. 358 U.S. 829; Meredith 

v. Fawr, 328 F.2d 586 (5th Cir. 1962); United States v. 

Wallace, 222 F. Supp. 485 (M.D. Ala. 1963); Harvest v. 

Board of Public Instruction of Manatee County, 312 F. 

Supp. 269 (M.D. Fla. 1970). 

The appellants’ argument that the State Board of Ed- 

ucation, Superintendent of Public Instruction and other 

state officers are not properly named as defendants is 

plainly without merit for it was undisputed that they 

threatened to interfere with implementation of the de- 

segregation order in Charlotte in reliance upon the anti- 

bussing law. Furthermore, these state officials share the 

affirmative duty to bring about desegregation of the schools 

with local officials. Godwin v. Johnston County Board of 

Education, 301 F. Supp. 339 (E.D. N.C. 1969) ; Bryant v. 

State Board of Assessment, 293 F. Supp. 1379 (E.D. N.C. 

1968; three-judge court); cf. Lee v. Macon County Board 

of Education, 267 F. Supp. 458 (M.D. Ala. 1967 ; three-judge 

court), affirmed, sub nom. Wallace v. Umted States, 389 

U.S. 215 (1967) (a state-wide school desegregation suit). 

The anti-bussing law stands on no different footing than 

the previous attempts to nullify the desegregation orders 

of federal courts revealed in the cases cited above. The 

efforts of state executive, legislative and judicial officers 

to annul the judgments of the United States District Court 

for the Western District of North Carolina in the Char- 

lotte-Mecklenburg school case must be emphatically re- 

 



  

16 

pudiated. As this Court made clear in Cooper v. Aaron, 

358 U.S. 1, 17-19, it has been clearly settled law since 

Marbury v. Madison (US) 1 Cranch 137, 177 that the 

“federal judiciary is supreme in the exposition of the law 

of the Constitution.” The efforts of state officers in this 

case to nullify the desegregation decrees merit no serious 

consideration by this Court. Those actions were plainly 

blameworthy and discreditable, and the district court was, 

if anything, too mild in not issuing contempt citations or 

condemning the obstructions of its orders in more explicit 

terms. Although the cause has been set for oral argument 

in this Court, we suggest that the case does not merit 

such further consideration. 

B. This Court Decided in Green v. County School Board of 
New Kent County That School Boards Must Take Affirma- 
tive Action to Disestablish Dual Segregated School Systems 

Section 115-176.1 is an attempt to prevent North Caro- 

lina school boards from performing their constitutional 

duty to desegregate the public schools. Under Green v. 

County School Board of New Kent County, 391 U.S. 430, 

437-438 (1968), the school boards throughout the State of 

North Carolina are “charged with the affirmative duty to 

take whatever steps might be necessary to convert to a 

unitary system in which racial discrimination would be 

eliminated root and branch.” It is entirely obvious, that 

as the court below held, school boards cannot effectively 

eliminate racial segregation of pupils without considering 

the race of pupils when planning new assignments. It is 

also obvious that they must use the conventional tools of 

school administration, including school bus systems, to 

convert to unitary nonsegregated systems. Section 115- 

176.1 attempts to severely disable North Carolina school 

officials in dealing with state imposed racial segregation. 
As the court below wrote: 

   



17 

A flat prohibition against assignment by race would, 

as a practical matter, prevent school boards from 

altering existing dual systems. Consequently, the stat- 

ute clearly contravenes the Supreme Court’s direction 

that boards must take steps adequate to abolish dual 

systems. (312 F. Supp. 503, 509-510.) 

The decision of the distriet court holding that the anti- 

bussing law violates the equal protection clause is plainly 

correct for the reasons stated in the opinion below (312 

F. Supp. 503, 507-510). The judgment below should be 

summarily affirmed. 

II. 

The Appeal Should Be Dismissed Because the Case 

Was Not Required to Be Heard by a Three-Judge Court. 

A. The Case Involved Primarily a Supremacy Clause Issue 
and Thus no Three-Judge Court Was Required Under the 
Doctrine of Swift & Co. v. Wickham 

It is submitted that the Court does not have jurisdiction 

of a direct appeal pursuant to 28 U.S.C. § 1253 because 

the case is not one required by any Act of Congress to be 

heard by a three-judge district court. In Swift & Co. v. 

Wickham, 382 U.S. 111 (1965), the Court held that 28 

U.S.C. section 2281 did not require that a three-judge 

court be convened to decide a claim based on the Su- 

premacy Clause of the Constitution that a state law was 

invalid because it conflicted with an Act of Congress. We 
think that there is no sound reason not to apply the Swift 

doctrine and reach the same result in a case such as this 

where a state law is alleged to be invalid under the Su- 

premacy Clause because it conflicts with the judgment of 

a court of the United States. We believe that the same 

considerations relating to the efficient operation of the 

 



  

18 

lower federal courts which were held dispositive in cases 

where a state statute must be compared for conflict with 

a federal statute apply equally where the comparison must 

be made between the statute and the decrees of a federal 

court. 

In the circumstances of the Charlotte case a federal dis- 

trict judge was faced with a series of orders by state 

judges purporting to rely upon a newly enacted state law 

to forbid that which the district judge’s decisions had com- 

manded to be done. Similarly, state executive officers, de- 

fendants in the case, threatened to defy the federal court 

orders in reliance upon the state law. In such a situation 

the power of the single federal district judge to protect 

his own orders should be entirely clear. There should be 

no need to resort to a three-judge court to put down bla- 

tant defiance of a district judge’s orders by state officials. 

B. The Anti-Bussing Law Is So Obviously Unconstitutional 
That no Three-Judge Court Was Required 

In Bailey v. Patterson, 369 U.S. 31, 33 (1962), this Court 

held that when “prior decisions make frivolous any claim 

that a state statute on its face is mot unconstitutional.” 

See also Turner v. Memphis, 369 U.S. 350, 353 (1962) ; cf. 

Ex parte Poresky, 290 U.S. 30 (1933). We believe that 

these principles apply in this case. For the reasons stated 

by the court below in its opinion the challenged portions 

of the anti-bussing law are plainly in conflict with this 

Court’s decision in Green v. County School Board of New 

Kent County, 391 U.S. 430 (1968). This conflict was open 

and obvious. Indeed, it was plainly intended. The state 

legislature sought to insulate a freedom of choice basis 
for desegregation from federal court attack notwithstand- 

ing this Court’s decision that free choice plans may be 

constitutionally inadequate. The legislature openly sought 

to prevent the school board from taking effective action 

   



19 

to disestablish the dual system. A three-judge court should 

not be required to deal with such a patent evasion of the 

Brown decision after sixteen years of such experimenta- 

tion with disobedience. Efforts to obstruct Brown should 

be dealt with in the most efficient manner possible with- 

out the necessity of convening three-judge courts. 

CONCLUSION 

For the foregoing reasons it is respectfully submitted 

that the judgment below should be affirmed, or, in the al- 

ternative, that the appeal should be dismissed. 

JACK (GREENBERG 

James M. Nasri, 111 

NormaN J. CHACHKIN 

10 Columbus Circle 

New York, New York 10019 

J. LEVonxeE CHAMBERS 

Apam STEIN 

CuamBers, STEIN, FERGUSON & LANNING 

216 West Tenth Street 

Charlotte, North Carolina 28202 

C. O. Pearson 

203%, East Chapel Hill Street 

Durham, North Carolina 27702 

Attorneys for Appellees [||2514eeea-4faa-4773-821b-3d2c92a6f40c||]