Swann v. Charlotte-Mecklenberg Board of Education Brief for Petitioners
Public Court Documents
October 5, 1970
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Brief Collection, LDF Court Filings. Swann v. Charlotte-Mecklenberg Board of Education Brief for Petitioners, 1970. c5b88b6c-c59a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/60628f5c-1867-49e1-add8-78abd2a92a5e/swann-v-charlotte-mecklenberg-board-of-education-brief-for-petitioners. Accessed July 19, 2025.
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I f th e
(Enurt at % Inittb States
O ctobee T e e m , 1970
No. 281
J am es E . S w a f f , et al.,
Petitioners,
C h ablotte -M ec k l b f b u b g B oaed of E d u c a tio f , et al.,
Respondents.
O F W BIT OF CEETIOEABI TO TH E U F ITE D STATES
COUBT OF APPEALS FOE TH E FOITBTH CIECHIT
BRIEF FOR PETITIONERS
J ack Gbeefbebg
J am es M. N abbit , III
N o b m a f J . C h a c h k if
10 Columbus Circle
New York, N. Y. 10019
J . L eV ohhe C ham bebs
A dam S t e if
C h am bebs , S t e if , F ekgttsof & L a f f i f g
216 West Tenth Street
Charlotte, N. C. 28202
C. O. P eaksof
203% East Chapel Hill Street
Durham, N. C. 27702
Attorneys for Petitioners
I N D E X
Opinions Below .................................................................. 1
Jurisdiction .............................................................. 3
Questions Presented ..................... 4
Constitutional Provisions Involved ...................... 4
Statement ...................................................... „■................... 4
1. Introduction .......................... 4
2. Proceedings Below ............................................... 5
3. Proceedings Pending Certiorari ............ 10
4. The Charlotte-Mecklenburg County School Sys
tem in 1968-69 ...................... 11
5. Two Schools in 1969-70 ..................................... 16
6. The Plan Ordered by the District Court in
February, 1970 ............................................... 19
a. High Schools ................................................... 20
b. Junior High Schools ..................................... 21
c. Elementary Schools ....................................... 22
d. Transportation ............................................... 23
7. Other Elementary Plans Reviewed by the Dis
trict Court in July, 1970 ..................................... 30
a. The Majority Board Plan ............................ 30
b. The HEW Plan ............................................. 30
c. The Finger Plan, the Board Minority Plan
and the Preliminary Finger Plan .............. 33
Summary of Argument..................................................... 34
PAGE
11
A kgument—
PAGE
I. The Public Schools of the Charlotte-Mecklen-
burg School System Are Racially Segregated
in Violation of the Equal Protection Clause of
the Fourteenth Amendment as the Result of
Governmental Action Causing School Segrega
tion and Residential Segregation ............... ...... 41
A. The Schools Are Organized in a Dual Seg
regated Pattern ............................................. 41
B. Governmental Agencies Created Black
Schools in Black Neighborhoods by Pro
moting School Segregation and Residen
tial Segregation ............................................. 46
II. The District Court Was Correct in Ruling That
the Dual Segregated System in Charlotte-
Mecklenburg Must Be Disestablished by Re
organizing the System So That No Racially
Identifiable Black Schools Remained. The
Court of Appeals Erred in Substituting a Less
Specific Desegregation Goal .............................. 54
A. This Court’s Decisions Require Complete
School Desegregation .................................... 54
B. The Fourth Circuit’s New Reasonableness
Rule Makes the Goal of Desegregation Less
Complete and Specific and Threatens to
Undermine Brown v. Board of Education 58
C. The Goal of Integrating Each School in
Charlotte Is Consistent With Federal Statu
tory and Constitutional Requirements ....... 65
I ll
III. The District Court Acted Within the Proper
Limits of Its Discretion by Ordering a Plan
Consistent With the Affirmative Duty to De
segregate the Schools and the Objective of
Preventing Resegregation ................................. 68
A. The Finger Plan Promises to Establish a
Unitary System ...................... ...................... 68
B. The Court Ordered Plan Is Feasible - ..... 69
C. The Finger Plan Utilizes Appropriate Tech
niques to Achieve Pupil Desegregation — 75
D. The Neighborhood School Theory Cannot
Be Justified on the Basis of History and
Tradition Because It Was Widely Disre
garded in Order to Promote Racial Segre
gation .............................................................. 80
E. The Finger Plan Is Necessary to Accom
plish the Constitutional Objective .............. 83
F. The Court of Appeals Applied an Improper
Standard for Appellate Review of the Dis
trict Court’s Discretionary Determination in
Formulating Equitable Relief .................... 84
C o nclusion .......................................................................................... 87
B rief A ppen dix
Memorandum of Decision and Order, dated August
PAGE
Memorandum Decision, dated August 7, 1970 _...Br. A39
Defendants’ Report of Action Taken as Directed
by the Court in Its Order of August 3,1970 .Br. A40
Defendants’ Report of Action Taken as Directed
XV
T able op A uth o rities
Cases: p a g e
Alexander v. Hillman, 296 U.S. 222 (1935) .................. 86
Alexander v. Holmes County Board of Education, 396
U.S. 19 (1969) .........................................7,8,40,43,64,86
Andrews v. City of Monroe, No. 29358 ------F .2d -------
(5th Cir., Apr. 23, 1970) ............... ............................. 65
Barrows v. Jackson, 346 U.S. 249 (1953) ...................... 50
Baldwin v. New York, 26 L.ed 2d 437 (1970) .............. 63
Bell v. Maryland, 378 U.S. 226 (1964) ........................ 35,50
Bowman v. The School Board of Charles City County,
382 F.2d 326 (1967) ...................................................... 6
Bradley v. Board of Public Instruction of Pinellas
County, No. 28639,------F.2d ——- (5th Cir., July 1,
1970) ..................................................................... 76
Braxton v. Board of Public Instruction of Duval
County, 402 F.2d 900 (5th Cir. 1968) .................... 52
Brewer v. School Board of the City of Norfolk, 397
F.2d 37 (4th Cir. 1968) ..................................... 52,53,76
Brown v. Board of Education, 347 U.S. 483 (1954)
35, 47, 54, 56, 59, 62, 64
Brown v. Board of Education, 349 U.S. 294 (1955)
54, 68, 75, 84
Brunson v. Board of Trustees of School District No. 1
of Clarendon County, No. 14571,------F .2d------- (4th
Cir., June 5, 1970) .................................................... 59,76
Buchanan v. Warley, 245 U.S. 60 (1917) ...................... 49
Buckner v. County School Board of Greene County,
Va., 332 F.2d 452 (4th Cir. 1964) .............................. 82
Carter v. West Feliciana Parish School Board, 396
U.S. 290 (1970) ...................................... ................8,65,86
V
Clark v. Board of Education of Little Rock, No. 19795,
------F .2d------- (8th. Cir., May 13, 1970), cert, pend
ing No. 409 O.T. 1970 ................................................. 77
Continental Illinois Nat. Bank & Trust Co. v. Chicago
R.I. & P. R. Co., 294 U.S. 648 (1935) ........................ 82
Cooper v. Aaron, 358 U.S. 1 (1958).............35,46,53,54,75
Corbin v. County School Board of Pulaski County,
Va., 177 F.2d 924 (4th Cir. 1949) ................................. 82
Crisp v. County School Board of Pulaski County, Ya.
(W.D. Va. 1960), 5 Race Rel. L . Rep. 721 ................ 82
Davis v. Board of School Commissioners of Mobile
County, 393 F.2d 690 (5th Cir. 1968) ...................... 52, 76
Dowell v. Board of Education of the Oklahoma City
Public Schools, 396 U.S. 269 (1969) ..........................8, 86
Dowell v. School Board of Oklahoma City, 244 F. Supp.
971 (W.D. Okla. 1965), affirmed, 375 F.2d 158 (10th
Cir. 1967), cert, denied, 387 U.S. 931 (1967) ...........52,65
Eason v. Buffaloe, 198 N.C. 520, 152 S.E. 496 (1930).... 49
Goins v. County School Board of Grayson County, Va.,
186 F. Supp. 753 (W.D. Va. 1960) ................ ............. 82
Green v. County School Board of New Kent County,
391 U.S. 430 (1968) ................................... 6, 35, 36, 38, 39,
40, 43, 47, 54,
55, 57, 58, 64,
68, 69, 76, 86
PAGE
Green v. School Board of the City of Roanoke, No.
14335 ------F .2d------- (4th Cir., June 17, 1970)......... 77
Griffin v. Board of Education of Yancey County, 186
F. Supp. 511 (W.D. N.C. 1960) ................................. 81
Griffin v. School Board, 377 U.S. 218 (1964).............. 37,63,
75, 85
VI
Hall v. St. Helena Parish School Board, 417 F.2d 801
(5th Cir. 1969), cert, denied, 396 U.S. 904 (1969)....... 76
Haney v. County Board of Education of Sevier County,
Ark., 410 F.2d 920 (8th Cir. 1969).............................. 82
Harvest v. Board of Public Instruction of Manatee
County, No. 29425, ------ F.2d ------ (5th Cir., June
26, 1970) ......................................................................76, 77
Henry v. Clarksdale Municipal Separate School Dis
trict, 409 F.2d 682 (5th Cir. 1969)........... ..................47,52
Holland v. Board of Public Instruction of Palm Beach
County, 258 F.2d 730 (5th Cir. 1958) ......................... - 52
Jackson v. Marvell School District No. 22, 425 F.2d
211 (8th Cir. 1970) ...................................................----- 76
Jones v. School Board of Alexandria, Va., 278 F.2d 72
(4th Cir. 1960) ............................................................ 82
Katzenbach v. Morgan, 384 U.S. 641 (1966) ................ 66
Kemp v. Beasley, 423 F.2d 851 (8th Cir. 1970) .......76, 77
Keyes v. School District No. One, Denver, 303 F. Supp.
289 (D. Colo. 1969), stay granted, ------ F.2d ------
(10th Cir. 1969), stay vacated, 396 U.S. 1215 (1969)..52, 65
Mannings v. Board of Public Instruction of Hills-
brough County, No. 28643,------F.2d — —- (5th Cir.,
May 11, 1970) ................................................................ 76
Monroe v. Board of Commissioners, 391 U.S. 450
(1968) ............................................................ 6,35,41,43,64
Moore v. Tangipahoa Parish School Board, 304 F.
Supp. 244 (E.D. La. 1969) ........................................... 66
Xesbit v. Statesville City Board of Education. 418 F.2d
1040 (4th Cir. 1969) _____________________________8,76
Xortheross v. Board of Education. 397 U.S. 232
(1970)
PAGE
.41.70
vii
Phillips v. Wearn, 226 N.C. 290, 37 S.E.2d 895 (1946). 49
Raney v. Board of Education, 391 U.S. 443 (1968) ....... 6
Rogers v. Hill, 289 U.S. 582 (1933) .............................. 85
School Board of Warren County, Va. v. Kilby, 59 F.2d
497 (4th Cir. 1958) ............................ -...... - ................... 81
Shapiro v. Thompson, 394 U.S. 618 (1969) ................ 63, 66
Shelley v. Kraemer, 334 U.S. 1 (1948) ..........—.... .15,49,51
Sparrow v. Gill, 304 P. Supp. 86 (M.D. N.C. 1969) ..... 24
Swann v. Charlotte-Mecklenburg Board of Education,
243 F. Supp. 667 (W.D. N.C. 1965), affirmed, 369
F.2d 29 (4th Cir. 1966) ...............................................1,41
Tillman v. Board of Public Instruction of Volusia
County, No. 29180, — F.2d — (5th Cir., April 23,
1970) ........................................................................65,76,77
Thompson v. County School Board of Arlington Coun
ty, 166 F. Supp. 529 (E.D. Va. 1958) .......................... 83
United States v. Board of Trustees of Crosby Inde
pendent School District, 424 F.2d 625 (5th Cir.
1970) ........................................................................65,76,77
United States v. Choctaw County Board of Education,
417 F.2d 838 (5th Cir. 1969) ....................................... 52
United States v. Cook County, Illinois, 404 F.2d 1125
(7th Cir. 1968) .............................................................. 63
United States v. Corrick, 298 U.S. 435 (1936) ... ......... 85
United States v. Greenwood Municipal Separate School
District, 406 F.2d 1086 (5th Cir. 1969) ........................ 52
United States v. Indianola Municipal Separate School
District, 410 F.2d 626 (5th Cir. 1969), cert, denied,
— U.S. — (1970) ......................................................
PAGE
52
V lll
United States v. Jefferson County Board of Education,
372 F.2d 836 (5th Cir, 1969), aff’d en banc, 380 F.2d
385 (5th Cir. 1967), cert, denied, sub nom. Caddo
Parish School Board v. United States, 389 U.S. 840
(1967) ......................................-..................................... 65
United States v. Montgomery County Board of Edu
cation, 395 U.S. 225 (1969).................................36,40,57,
67, 68, 86
United States v. School Dist. 151 of Cook County, 404
F.2d 1125 (7th Cir. 1968), aff’g 286 F. Supp. 786
(MI). 111. 1968) ..................... ........................... 52, 65, 76, 77
United States v. W. T. Grant, 345 U.S. 629 (1953) .—40, 85
Valley v. Rapides Parish School Board, — F.2d —
(5th Cir. 1970) .............................................................. 52
Vernon v. R. J. Reynolds Realty Co., 226 N.C. 58, 36
S.E.2d 710 (1946) ............ ............................. .............. 49
PAGE
Walker v. County School Board of Floyd County, Va.
(W.D. Va. 1960), 5 Race Rel. L . Rep. 714.................. 82
Whittenberg v. School District of Greenville County,
C.A. No. 4396, D. S.C. (Feb. 4, 1970) ........................ 67
Youngblood v. Board of Public Instruction of Bay
County, Fla., — F.2d — (5th Cir., No. 29369, July 24,
1970) ......................................................................... 52
Statutes:
Civil Rights Act of 1964, §§ 401(b), 407 (A)(2), 42
U.S.C. §§ 2000c(b), 2000c-6(a) (2) .................. ......... 37,66
28 U.S.C. § 47 ..................... .......................................... 4
28 U.S.C. § 1343 ............ ............................................... 5
42 U.S.C. § 1983 ..................................... ...................... 5
N.C. Gen. Stat. § 115, 176.1 [1969 Supp.] .................. 9
IX
Other Authorities:
Abrams, Forbidden Neighbors (1955) .......................... 51
“NEA Brief Amicus Curiae” ................... ..................... 63
“ On the Matter of Bussing: A Staff Memorandum
from the Center for Urban Education” (February
1970) .............-...................- ................................. - ....... 79
Racial Isolation in the Public Schools, A Report of the
U. S. Commission on Civil Rights (1967) ...........45, 50, 51
Statement of the United States Commission on Civil
Rights Concerning the “Statement by the President
on Elementary and Secondary School Desegrega
tion” , April 12, 1970 ................ - ............................. ----- 62
Weaver, The Negro Ghetto (1948) ........................-........ 51
Weinberg, “Race and Place, A Legal History of the
Neighborhood School” (U.S. Govt. Printing Office,
1967)
PAGE
83
In the
Supreme Court of tiu Ittttrb States
O ctober T e r m , 1970
No. 281
J am es E . S w a n n , et al.,
Petitioners,
C h ar lo tte -M ecklen bu rg B oard of E d u catio n , et al.,
Respondents.
ON W R IT OF CERTIORARI TO T H E U N ITED STATES
COURT OF APPEALS FOR TH E FO U R TH CIRCUIT
BRIEF FOR PETITIONERS
Opinions Below
The opinions of the courts below are as follows d
1. Opinion and order of April 23, 1969, reported at 300
F. Supp. 1358 (285a).
2. Order dated June 3, 1969, unreported (370a).
3. Order adding parties, June 3, 1969, unreported
(374a).
4. Opinion order of June 20, 1969, reported at 300 F.
Supp. 1381 (448a).
1 Earlier proceedings in the same ease are reported as Swann v.
Charlotte-Mecklenburg Board of Education, 243 F. Supp. 667
(W.D. N.C. 1965), affirmed, 369 F.2d 29 (4th Cir. 1966).
2
5. Supplemental Findings of Fact, June 24, 1969, re
ported at 300 F. Supp. 1386 (459a).
6. Order dated August 15, 1969, reported at 306 F.
Supp. 1291 (580a).
7. Order dated August 29, 1969, unreported (593a).
8. Order dated October 10, 1969, unreported (601a).
9. Order dated November 7, 1969, reported at 306 F.
Supp. 1299 (655a).
10. Memorandum Opinion dated November 7, 1969, re
ported at 306 F. Supp. 1301 (657a).
11. Opinion and Order dated December 1, 1969, reported
at 306 F. Supp. 1306 (698a).
12. Order dated December 2, 1969, unreported (717a).
13. Order dated February 5, 1970, reported at 311 F.
Supp. 205 (819a).
14. Amendment, Correction, or Clarification of Order of
February 5, 1970, dated March 3, 1970, unreported
(921a).
15. Court of Appeals Order Granting Stay, dated March
5, 1970, unreported (922a).
16. Supplementary Findings of Fact dated March 21,
1970, unreported (1198a).
17. Supplemental Memorandum dated March 21, 1970,
unreported (1221a).
18. Order dated March 25, 1970, unreported (1255a).
19. Further Findings of Fact on Matters raised by Mo
tions of Defendants dated April 3, 1970, unreported
(1259a).
3
20. The opinions of the Court of Appeals filed May 26,
1970, not yet reported, are as follows:
a. Opinion for the Court by Judge Butzner (1262a).
b. Opinion of Judge Sobeloff (joined by Judge Win
ter) concurring in part and dissenting in part
(1279a).
c. Opinion of Judge Bryan dissenting in part
(1293a).
d. Opinion of Judge Winter (joined by Judge Sobel
off) concurring in part and dissenting in part
(1295a).
21. The judgment of the Court of Appeals appears at
1304a.
22. The opinion of a three-judge district court in an
ancillary proceeding in this case dated April 29,1970,
not yet reported, appears at 1305a.
23. The Memorandum of Decision and Order dated Au
gust 3, 1970, unreported of the district court entered
following the further proceedings directed by the
Court of Appeals (1278a-1279a) and authorized by
this Court (1320a) is appended to this brief.2
Jurisdiction
The judgment of the Court of Appeals was entered on
May 26, 1970. The jurisdiction of this Court is invoked
under 28 U.S.C. Section 1254(1). The petition for a writ
of certiorari was filed in this Court on June 18, 1970, and
was granted on June 29, 1970 (1320a).
2 The appendix to the brief containing the decision on remand
is herein designated “Br. A------ .” The other matters, including all
other previous opinions are printed in separate appendix volumes
and are herein designated “■------ a.”
The Memorandum dated August 7, 1970, unreported is printed
at Br. A39.
4
Questions Presented
1. Whether the trial judge correctly decided he was re
quired to formulate a remedy that would actually integrate
each of the all-black schools in the northwest quadrant of
Charlotte immediately, where he found that government
authorities had created black schools in black neighbor
hoods by promoting school segregation and housing segre
gation.
2. Whether, where a district court has made meticulous
findings that a desegregation plan is practical, feasible and
comparatively convenient, which are not found to be clearly
erroneous, and the plan will concededly establish a unitary
system, and no other acceptable plan has been formulated
despite lengthy litigation, the Court of Appeals has discre
tion to set aside the plan on the general ground that it im
poses too great a burden on the school board.
Constitutional Provisions Involved
This case involves the Equal Protection Clause of the
Fourteenth Amendment to the Constitution of the United
States.
Statement
1. Introduction
This Court has granted review3 of an en banc4 * decision
of the United States Court of Appeals for the Fourth Cir
3 The defendants have filed a eross petition for writ of certiorari
which is pending. (Oct. Term 1970, No. 349.)
4 Prior to argument, Judge Craven entered an order disqualify
ing himself. He had decided the ease as a district judge in 1965
(243 F. Supp. 667) and was of the opinion that this previous
participation barred him from hearing the case as a circuit judge.
28 U.S.C. §47.
5
cuit setting aside certain portions of an order of Judge
Janies B. McMillan of the Western District of North Car
olina which had required the complete desegregation of
the Charlotte-Mecklenburg County public school system.
Three members of the court, in a plurality opinion written
by Judge Butzner, agreed with the lower court that the
school board had an affirmative duty to employ a variety
of available methods, including busing, to disestablish its
dual school system and approved the portions of the order
providing for the desegregation of the junior and senior
high schools. As to the plan ordered for the elementary
schools, however, they thought that the board “should not
be required to undertake such extensive additional busing
to discharge its obligation to create a unitary school sys
tem (1271a).” Judges Sobeloff and Winter viewed Judge
McMillan’s decision as appropriate in all respects and
would have affirmed the decision in its entirety (1279a,
1295a). Judge Bryan who would have reversed the entire
order expressed disapproval of busing to achieve racial
balance which he found the order to require for junior and
senior high school students as well as elementary (1293a).5
2. Proceedings Below
Black parents and students brought this action in 1965
against the local school board to desegregate the consoli
dated school district of Charlotte City and Mecklenburg
County, North Carolina pursuant to 28 U.S.C. §1343 and
42 U.S.C. §1983. The North Carolina Teachers Association,
a black professional organization, intervened seeking de- 6
6 This is essentially the position of the defendants as stated in
their cross petition for writ of certiorari. See note 3, supra. They
not only argue that the Court of Appeals erred in approving Judge
McMillan’s plan for junior and senior high schools, but also dis
agree with the Court’s conclusion that the board’s elementary plan
is unconstitutional.
6
segregation of the faculties on behalf of the black teachers
in the school system. More recently, other defendants have
been added, including the State Board of Education, the
State Superintendent of Public Instruction and the individ
ual members of the local board (464a, 374a, 901a). This
current phase6 of the litigation began in 1968 when the
plaintiffs, relying upon the Green trilogy,6 7 reopened the
case seeking the elimination of all vestiges of the dual sys
tem (2a).
Judge McMillan first heard testimony in March, 1969
and entered his initial opinion the following month (300 F.
Supp. 1358; 285a) judging the school system to be illegally
segregated and requiring the board to submit a plan for
desegregation. Extensive proceedings followed over the
6 The case was first tried in the summer 1965. (243 F. Supp.
667 (1965).) The plaintiffs challenged an assignment plan where
initial assignments were made pursuant to geographic zones from
which students could transfer to schools of their choice. Plaintiffs
complained that many of the zones were gerrymandered and that
the zones of ten rural and concededly inferior black schools which
the board claimed would be abandoned within a year or two over
lapped white school zones. They also attacked a free transfer policy
which had resulted in the transfer of each white child initially
assigned to black schools as had the previous policy allowing for
minority to majority transfers. Also under attack was the board’s
policy looking to the “ eventual” non racial employment and as
signment of teachers. Underlying plaintiffs’ specific grievances was
their general assertion that the Constitution required the school
board to take active affirmative steps to integrate the schools.
The district court approved the assignment plan but required
“ immediate” non-racial faculty practices.
The court of appeals affirmed. (369 F.2d 29 (1966).) The deci
sion noted that the 10 black schools were closed at the end of the
1965-66 school year. The court held, as it did the following year
in Bowman v. The School Board of Charles City County, 382 F.2d
326 (1967), rev’d sub nom. Green v. County School Board of New
Kent County, 391 U.S. 430 (1968), that the school board had no
affirmative duty to disestablish the dual system.
7 Green v. County School Board of New Kent County, 391 U.S.
430 (1968); Monroe v. Board of Commissioners, 391 U.S. 450
(1968); and Raney v. Board of Education, 391 U.S. 443 (1968).
7
next twelve months.8 He rejected the first plan submitted
and called for another, found the second plan inadequate
but “reluctantly” accepted it as an interim measure for
the 1969-70 school year, again required a new plan which
after review was also found unacceptable.9 On December 1,
1969, following the court’s patient but unavailing efforts
to secure from the board an acceptable plan, the fail
ure of the board to carry out its minimal interim plan
for 1969-70 and the mandate of this Court10 that schools
are to be desegregated “at once” , Judge McMillan decided
to appoint an educational consultant to assist him in devis
ing a desegregation plan (698a). The following day, the
court appointed Dr. John A. Finger, Jr., a Professor of
8 Judge McMillan has provided an excellent summary of the
proceedings in the district court prior to the decision of the court
of appeals in his Supplemental Memorandum of March 21, 1970
(1221a).
9 The first plan was rejected on June 20, 1969 (448a). The Court
found that the board had sought from the staff a “minimal” and
inadequate plan, that the staff produced such a plan and the board
thereupon eliminated its only effective provisions before submitting
it to the court.
The court found the second plan inadequate on August 15, 1969
(580a) but accepted it for the 1969-70 school year only because it
promised some measure of desegregation and there did not appear
to be sufficient time prior to the opening of the new school term
for the development and implementation of a more effective plan.
The failure of the board to accomplish what the plan had prom
ised was determined on November 7, 1969 (657a).
The third “plan” was simply a statement of guidelines as to
how the board intended to produce a plan. The guidelines prom
ised no particular results and were thus rejected on December 1,
1970 (698a).
Judge Sobelofif traces this history in an extensive footnote (1291a,
n. 9). He concludes “ [T]he above recital of events demonstrates
beyond doubt that this Board, through a majority of its members,
far from making ‘every reasonable effort’ to fulfill its constitu
tional obligation, has resisted and delayed desegregation at every
turn.”
10 Alexander v. Holmes County Board of Education, 396 U.S. 19.
8
Education at Rhode Island College who was directed to
work with the administrative staff to prepare a plan for
the court’s consideration (717a). The board was again
invited to submit another plan (698a).
On January 20, 1970, plaintiffs requested that Dr. Finger
promptly present his plan so that the schools could be de
segregated “at once” (718a).11 The Finger plan (835a-
839a) and a fourth board plan (726a) were filed with the
court in early February. Judge McMillan held further
hearings and entered an order on February 5 directing the
desegregation of the students and teachers of the elemen
tary schools by April 1, 1970, and of the junior and senior
high schools by May 4, 1970 (819a).12 The order was based
upon the plans submitted by the board and Dr. Finger.
The school board appealed (904a) and sought a stay in
the court of appeals. On March 5,1970, the court of appeals
11 Plaintiffs’ request followed the controlling decisions of Alex
ander v. Holmes County Board of Education, 396 U.S. 19 (1969) ;
Dowell v. Board of Education of the Oklahoma City Public Schools,
396 U.S. 269 (1969) ; Carter v. West Feliciana Parish School
Board, 396 U.S. 290 (1970) ; and Nesbit v. Statesville City Board
of Education, 418 F.2d 1040 (4th Cir. 1969).
This was not the first request by plaintiffs for immediate relief.
In September of 1969 the plaintiffs’ motion for a finding of con
tempt and for immediate desegregation (596a) had led to the
court’s finding in November that the board had not accomplished,
during the 1969-70 school year, what it had been ordered to do
(655a).
The plaintiffs were required to file a variety of other motions as
well, such as motions for contempt (596a, 914a), objections to
patently defective plans (e.g. 692a), a motion to enjoin school
construction (324a), motions to vacate state court orders (see
925a), motions to add new defendants (840a, 906a) and motions
to enjoin state officials from interfering with orders of the court
(840a, 906a, 914a). Despite these and other efforts in the district
court, the court of appeals and this Court, there has yet to be any
more desegregation in the Charlotte-Mecklenburg school system
than when this round of litigation commenced.
12 The order was slightly modified on March 3, 1970 (921a).
9
stayed a portion of the order relating to the elementary
schools and directed that the district court make additional
findings concerning the cost and extent of the bussing re
quired by the February 5 Order (922a). The plaintiffs
applied to this Court to have the partial stay rescinded;
the application was denied.
The district court received additional evidence pursuant
to the directives of the court of appeals and entered a sup
plemental Memorandum (1221a) and Supplemental Find
ings of Fact (1198a)13 on March 21, 1970.14
13 The supplemental findings were amended in certain respects
on April 3, 1970 (1259a), in response to a motion by defendants
(1239a).
14 During this period there were also proceedings concerning the
North Carolina anti-bussing law :
“In June of 1969, pursuant to the hue and cry which had been
raised about ‘bussing,’ Mecklenburg representatives in the
General Assembly of North Carolina sought and procured
passage of the so-called ‘anti-bussing’ statute, N.C.G.S. 115-
176.1 [supp. 1969]” (1223a).
Plaintiffs were granted leave to file a supplemental complaint
in July, 1969 and to add the State Board of Education and State
Superintendent of Public Instruction as defendants to attack the
statute (464a). At that time the statute did not appear to the
court to be a barrier to school desegregation (579a, 585a).
However, in the spring of 1970, the Governor and other state
officials directed that no public funds be expended for the trans
portation of students pursuant to the district court order of Feb
ruary 5 and several state judges issued ex parte orders of similar
effect acting under color of the state statute. (See 1305a, 1307a,
1308a). „ , , _
At the plaintiff’s request Judge McMillan added the Governor,
other state officials and one group of state court plaintiffs as de
fendants (901a). He, thereafter determined that the constitu
tionality of the state statute was at issue and, therefore, requested
and the Chief Circuit Judge appointed a three-judge court. The
court convened in Charlotte on March 24. On April 29, 1970, the
court entered its decision (1305a) declaring unconstitutional the
portions of the statute prohibiting the assignment of any students
“on account of race, creed, color or national origin, or for the
purpose of creating a balance or ratio of race, religion or national
10
The opinions and judgment of the court of appeals were
filed on May 26, 1970. The court decided by a vote of 4 to 2
to vacate and remand the judgment of the district court
for further proceedings. A majority for the judgment was
created by the vote of Judge Bryan joining with the three
members of the court subscribing to the plurality opinion
written by Judge Butzner, although Judge Bryan dissented
from the views expressed in the plurality opinion (1304a,).* 16
3. Proceedings Pending Certiorari
Judge McMillan conducted hearings from July 15 through
July 24, 1970 in accordance with the order of this Court of
June 29, 1970 granting certiorari, authorizing the remand
directed by the Court of Appeals for further proceedings
and reinstating the district court’s judgment.
The school board had filed, but did not support, a plan
prepared by the Department of Health, Education and Wel
fare (hereinafter HEW) and a plan prepared by four of
the five members of the school board.
The Department of Justice appeared at the hearing as
amicus curiae to present the HEW plan. Testimony was
therefore directed to the comparative advantages and dis
advantages to these plans and another plan which had
been prepared by Dr. Finger during his tenure as court
consultant.
origins,” the “ involuntary bussing of students in contravention of
[the statute]” and the use of “public funds . . . for any such
bussing.”
The state and the local defendants have noted appeals to this
Court.
16 The judgment was vacated in its entirety. Judge Butzner’s
reason for this action was to give greater flexibility to the develop
ment of a new elementary plan (1263a). Judges Winter and
Sobeloff thought it was improper to invite the reconsideration of
the portions of the plan already found acceptable (1295a, n.*).
The judgment expressed Judge Bryan’s hope that “upon re-exam-
ination the District Court will find it unnecessary to contravene
the principle stated . . . ” in his dissent (1304a).
11
The Court entered a Memorandum of Opinion and Order
(Br. A l) on August 3, 1970 in which it: rejected again the
majority board plan; rejected the HEW plan as unconsti
tutional, and unreasonable in the context of Charlotte;
accepted as constitutional and reasonable the originally
ordered plan, the minority board plan and the preliminary
Finger plan; and continued in effect his previous order of
February 5, 1970 but allowing the board to choose to oper
ate under one of the other plans found acceptable by the
court if such a decision were made and presented to the
court in writing before noon on August 7, 1970.16
The school board, at a meeting on August 6, 1970 decided
not to exercise any of the options offered by the order of
August 3 and to appeal and seek a stay in this Court and
in the court of appeals (Br. A40). Upon receiving the
report the court ordered the court ordered plan of Feb
ruary 5 be implemented (Br. A39).
4. The Charlotte-Mecklenburg County School
System in 1968-69
In March of 1969, the plaintiffs presented to the district
court detailed evidence about the school system, such as the
number and location of the schools, the grades served, the
kinds of programs offered, the achievement of the students
in the different schools, the racial distribution of students
and faculties in the system, and the changes which had
occurred over the years. The plaintiffs also showed by
expert testimony the rigid racial segregation of the popula
tion in Charlotte and in Mecklenburg County and its causes.17
16 The court also allowed the board to close rather than integrate
the Double Oaks School (black). There had been evidence presented
at the hearing that it is difficult to get buses to the school although
buses served the school during the 1969-70 school year.
17 See the testimony of Charles L. Green (15a-27a), Daniel 0.
Henningan (28a-57a), Paul R. Leonard (57a-64a) and Yale Rabin
(174a-241a). And see the testimony of defendants’ witness, W il
liam B. McIntyre (251a-284a).
12
The court carefully analyzed the voluminous evidence
before it. Over the course of the litigation below, the dis
trict court made extensive findings of fact.18 Each succeed
ing order reflects a comprehensive analysis of new sub
missions of evidence by the parties and the cumulative
evidence already before the court. The court of appeals
has accepted the district court’s findings (1262a).19
Judge McMillan’s first opinion on April 23, 1969, gave
a detailed description of the school system, the community
which it serves and the extent of racial segregation within
the schools (285a). We only summarize here some of the
salient facts contained in the April opinion.
The Charlotte-Mecklenburg school system serves more
than 84,000 pupils residing in the city of Charlotte and
Mecklenburg County. In April, 1969, there were 107 schools,
including 76 elementary schools (grades 1-6), 20 junior
high schools (grades 7-9) and 11 senior high schools (grades
10-12). The system employed approximately 4,000 teachers
and nearly 2,000 other employees. The racial composition
of the students in the system was approximately 71% white
and 29% black. The residential patterns of the county were
sufficiently integrated so that most of the county school
zones included both black and white students. No all-black
schools remained in the County. In the City, however, the
18 Significant findings are contained in eight of the orders leading
to the decision of the court of appeals: Opinion and Order, April
23, 1969 (285a) ; Opinion and Order, June 20, 1969 (448a) ; Order,
June 24, 1969 (459a) ; Order, August 15, 1969 (579a) ; Memoran
dum Opinion, November 7, 1969 (657a) ; Opinion and Order, De
cember 1, 1969 (698a); Order, February 5, 1970 (819a) ; Supple
mental Findings of Fact, March 21, 1970 (1198a) ; and Further
Findings, etc. (1259a).
See also the most recent Memorandum of Opinion and Order,
August 3, 1970 (Br. A l) .
19 The most recent findings (Br. A l) , of course, have not been
reviewed by the court of appeals.
13
residential areas were and are generally segregated by
race,20 and most schools were racially identifiable.
During the 1968-69 school year, students were assigned
to the schools under the same plan as approved by the dis
trict court in 1965—initial assignments by geographic zones
with freedom of transfer restricted only by school capac
ities.
The court found that 14,000 of the 24,000 black students
in the system were attending schools which were at least
99% black (303a).21 The court further found that most of
the desegregated city schools were in transition from a
previously all-white enrollment to all-black (302a). Seven
schools which served 5,502 white pupils and no black pupils
in 1954, served 5,010 pupils of which 35% were black in
1965. In 1968 they served 5,757 students, 81% of whom
were black.
The school system had been growing at approximately
3,000 students per year, requiring an on-going school con
struction program. With few exceptions, the size and place
s'* Most of the evidence concerning residential segregation was
produced at the March 1969 hearings. (See note 17, supra.) The
April order describes the housing patterns and some of the forces
which created them. The matter was examined again in subsequent
orders, particularly the Order of November 7, 1969 (657a). The
court’s conclusion was that housing segregation in Charlotte has
been substantially determined by governmental action.
21 In June, after further analysis of the data, the court concluded
that approximately 21,000 of the 24,000 black students in the sys
tem lived within the city of Charlotte and that nearly 17,000 of
them were attending black or nearly all-black schools (459a). The
court also found that nearly 19,000 of the more than 31,000 white
elementary students attended schools which were nearly all-white.
(There are only 150 black students attending these schools.) More
than one-half of the 14,741 white junior high school students at
tended schools with a total black population of 193 (453a).
14
ment of the recently constructed schools produced either
all-white or all-black new schools.22
The court found faculties segregated. The great major
ity of the 900 black teachers were teaching in black schools.
There was less than one white teacher per black elementary
school. The two black high schools had teaching staffs more
than 90% black.
The court concluded that the board’s policies of zoning,
free transfer and its school placement had contributed to
and continued an unlawfully segregated public school sys
tem. It also concluded that the faculties had not been de
segregated as required by the 1965 order. The board was
directed to produce plans for the active desegregation of
the pupils and faculties by May 15, 1969.
On appeal, Judge Butzner agreed that the system was
unlawfully segregated in April of 1969:
“Notwithstanding our 1965 approval of the school
board’s plan, the district court properly held that the
board was operating a dual system of schools in the
light of subsequent decisions of the Supreme Court
. . .” (1263a-1264a).23
The district court further found that the impact of seg
regation on black students in the system had resulted in
the denial of equal educational opportunities. Comparative
test results showed a wide disparity in achievement between
students attending all-black schools and students attending
23 The new black schools were generally “walk-in” schools while
the white schools were placed some distance from the areas which
they serve (1203a-1204a).
23 Both Judges Sobeloff and Winter concurred in this conclusion
(1279a, 1295a).
15
white and integrated schools (857a-859a, 702a-704a, 1206a-
1207a).24
The court also found that the residential segregation was
far from benign or de facto. The school board by gerry
mandering zone lines (455a-456a) and other practices, to
gether with the activities of other governmental agencies,
had had a significant impact upon the creation of Char
lotte’s ghetto. Again, the three circuit judges subscribing
to the plurality opinion and Judges Sobeloff and Winter
concurred in these findings. As Judge Butzner summarized:
The district judge also found that residential pat
terns leading to segregation in the schools resulted in
part from federal, state and local governmental action.
These findings are supported by the evidence and we
accept them under familiar principles of appellate
review. The district judge pointed out that black resi
dences are concentrated in the northwest quadrant of
Charlotte as a result of both public and private action.
North Carolina courts, in common with many courts
elsewhere, enforced racial restrictive covenants on
real property [footnote omitted] until Shelley v. Krae-
mer, 334 IT.S. 1 (1948) prohibited this discriminatory
practice. Presently the city zoning ordinances differ
entiate between black and white residential areas.
Zones for black areas permit dense occupancy, while
most white areas are zoned for restricted land usage.
The district judge also found that urban renewal
projects, supported by heavy federal financing and the
active participation of local government, contributed
to the city’s racially segregated housing patterns. The
school board, for its part, located schools in black resi
dential areas and fixed the size of the schools to accom
24 The court reviewed the most recent data in July, 1970 and
found wide disparities again (Br. A l) .
16
modate the needs of immediate neighborhoods. Pre
dominantly black schools were the inevitable result
(1264a).
In addition to the activities of the governmental agencies
producing the discriminatory zoning (297a, 1229a) and the
urban renewal programs (297a, 1229a) mentioned by Judge
Butzner, there was substantial evidence showing that long
range planning by the City Council projects present segre
gation into the future (1229a), that public housing officials
had overtly discriminated until recent years and have re
inforced racial segregation by their site selection (1229a)
and that those officials responsible for planning and build
ing streets and highways have created racial barriers. (See,
generally testimony of Yale Rabin (174a-241a)).
There was also significant testimony concerning “private”
individual and institutional forces which have kept blacks
out of white residential areas. The Rev. Daniel 0. Henni-
gan, a black realtor testified at length concerning the enor
mous difficulties he had experienced over a period of four
years in becoming the first—and so far only—black member
on the Charlotte Board of Realtors. He finally secured
membership by agreeing not to seek participation in Char
lotte’s multiple listing service. He also told of instances
where he had negotiated the purchase of land in white
areas but was unable to proceed because funds were denied
his clients by the lending institutions (28a-57a).
5. The Schools in 1969-70
During the 1969-70 school year the schools were again
operated under the board’s 1965 desegregation plan as
modified in its submission to the court in July 1969. The
modifications provided for the transportation of 4,245 in
ner-city black students to outlying white schools. Of these
17
children 3,000 were to come from 7 schools which were to
be closed and 1,245 from overcrowded black schools. The
board also proposed some further faculty desegregation but
would retain all other racially discriminatory features as
found by the court in April. The board did propose, how
ever, to study its building programs and such measures as
altering attendance lines, pairing, clustering and other
techniques in order to develop a comprehensive desegre
gation plan for the future.
The plaintiffs had objected to the proposal on the grounds
that it left many schools segregated for yet another year
and placed the full burden of desegregation upon black
children.
The court, in an order entered on August 15, 1969 (579a),
approved the proposed pupil reassignments for the 1969-70
school year “only (1) with great reluctance, (2) as a one
year temporary arrangement and (3) with the distinct
reservation that ‘one-way bussing’ plans for the years after
1969-70 will not be acceptable.” The board was ordered to
file a third plan by November 17, 1969, “making full use
of zoning, pairing, grouping, clustering, transportation and
other techniques . . . having in mind as its goal for 1970-71
the complete desegregation of the entire system to the
maximum extent possible” (591a).26
Upon application of defendants, the court modified the
August 15 order on August 29 to allow for the reopening
of a. black inner-city school to serve up to 600 inner-city
children who chose not to be transported to suburban white
schools (593a).
26 The board explicitly refused to follow these directives. Each
of the next two plans submitted by the board rejected the techniques
of “pairing, grouping [and] clustering.” See n. 29, infra. A simi
lar directive of the court of appeals has also been ignored (Br. A l) .
18
The plan did not accomplish what was promised. The
court later found that “the ‘performance gap’ is wide”
(659a).
In substance, the plan which was supposed to bring
4,245 children into a desegregated situation had been
handled or allowed to dissipate itself in such a way
that only about one-fourth of the promised transfers
were made; and as of now [March 21, 1970] only 767
black children are actually being transported to sub
urban white schools instead of the 4,245 advertised
when the plan was proposed by the board (1226a).
In the November, 1969 Memorandum Opinion (657a) the
court set out in detail the racial characteristics of the
school system during the 1969-70 school year (658a-663a).
The court concluded that there had been no real improve
ment from the segregated situation found during the pre
vious school year.
Of the 24,714 Negroes in the schools, something
above 8,500 are attending “white” or schools not readily
identifiable by race. More than 16,000, however, are
obviously still in all-black or predominantly black
schools. The 9,216 in 100% black situations are con
siderably more than the number of black students in
Charlotte in 1954 at the time of the first Brown deci
sion. The black school problem has not been solved.
The schools are still in major part segregated or
“dual” rather than desegregated or “unitary” (661a).
Analyzing the same figures in a later order (698a) the
court pointed out that “Nine-tenths of the faculties are
still obviously ‘black’ or ‘white.’ Over 45,000 of the 59,000
white students still attend schools which are obviously
white” (702a).
The court also determined that the free transfer provi
sion in the board’s plan negated any progress which the
19
July plan might have produced (662a).28 It also found that
attempts to desegregate the schools by altering attendance
lines would continue to fail as long as students could exer
cise a freedom of choice (662a-663a).
The court of appeals shared Judge McMillan’s view that
the system was still segregated during the 1969-70 school
year (1266a, 1275a).
6. The Plan Ordered by the District Court in
Feburary, I97026 27
In the decision of December 1, 1969 (698a) in which the
court announced that an educational consultant would be
appointed, 19 principles were stated for his guidance (708a-
713a). Dr. Finger’s instructions included “all the black
and predominantly black schools in the system are ille
gally segregated . . .” (711a); “ efforts should be made to
reach a 71-29 ratio in the various schools so that there will
be no basis for contending that one school is racially dif
ferent from the others, but . . . variations from that norm
26 The court had made similar findings in June:
Freedom of transfer increases rather than decreases segrega
tion. The School Superintendent testified that there would be,
net, more than 1,200 additional white students going to predom
inantly black schools if freedom of transfer were abolished
(453a).
Moreover, during the choice period prior to the 1969-70 school year,
just two white students out of 59,000 elected to transfer to black
schools and only 330 black students out of 24,000 chose to transfer
to white schools (I'd.).
27 A portion of the February order was stayed by the court of
appeals on March 5 (922a) and the remainder by the district court
on March 25 (1255a).
The order was reinstated by this Court on June 29 (1320a)
pending further proceedings in the district court.
On August 3, 1970 the district court continued this Court’s order
in effect subject to options made available to the board for elemen
tary school assignments if exercised on or before August 7, 1970
(Br. A l ) . Since the board declined to exercise any of the options,
the court, on August 7, 1970 directed the court ordered plan of
February 5 be implemented (Br. A39).
20
may be unavoidable” (710a); “bus transportation to elimi
nate segregation [and the] results of discrimination may
validly be employed” (710a); and “pairing, grouping, clus
tering, and perhaps other methods may and will be con
sidered and used if necessary to desegregate the schools”
(712a).
Dr. Finger’s work is described in the Supplemental Mem
orandum of March 21, 1970 (1221a):
Dr. Finger worked with the school board staff mem
bers over a period of two months. He drafted several
different plans.28 When it became apparent that he
could produce and would produce a plan which would
meet the requirements outlined in the court’s order
of December 1, 1969, the school staff members pre
pared a school board plan which would be subject to
the limitations the board had described in its November
17, 1969 report.29 The result was the production of two
plans—the board plan and the plan of the consultant,
Dr. Finger.
The detailed work on both final plans was done by
the school board staff (1231a).
Both plans were presented to the court.30
a. High Schools—The school staff had developed a plan
which produced a white majority of at least 64% in each
28 One of his preliminary plans was introduced and described at
the July, 1970 hearing (Br. A l ) .
29 The board’s two most significant limiting factors were: (1) Re
zoning was the only method to be employed; the board rejected
such techniques as pairing, grouping and clustering; (2) a school
sought to be desegregated would be at least 60% white; thus, the
board’s plan for elementary schools produced some schools between
57% and 70% white, eight schools 1% to 17% white, two schools
0% white and no schools between 18% and 58% white.
The court of appeals found as the district court had that these
limiting factors were improper (1275a-1276a).
30 Description of the plans are found in several of the decisions
below. See, Order, February 5, 1970 (819a, 825a-827a) and tables
21
of the ten high schools including the all-black West
Charlotte High School (see Exhibit B, 829a). The hoard
accomplished this result by restructuring attendance lines.
Dr. Finger’s proposal used the board’s new zones and as
signed an additional 300 pupils from a black residential
area to Independence High School which would have had
only 23 black students under the hoard’s plan. Judge
McMillan adopted the Finger modification. This portion
of the plan was approved on appeal. Judge Butzner wrote:
The transportation of 300 high school students from
the black residential area to suburban Independence
School will tend to stabilize the system by eliminating
an almost totally white school in a zone to which other
whites might move with consequent “tipping” or re-
segregation of other schools (1273a).
b. Junior High Schools—During the 1969-70 school year
the board operated 19 junior high schools. Five were all or
predominantly black; eight were more than 90% white.
(See Exhibit D, 830a.) The board, by rezoning eliminated
several of the black schools. One school, however, Pied
mont, remained 90% black. Additionally, four schools would
be more than 90% white.* 31
Dr. Finger devised a plan which would integrate all the
junior high schools. Twenty of the schools would have
white populations ranging from 67% to 79% and the re
(829a-839a); Supplemental Findings, March 21, 1970 (1198a,
1208a-1214a); Supplemental Memorandum, March 21, 1970 (1221a,
1231a-1234a) ; Opinion of Court of Appeals (1262a, 1268a-1269a).
See also the Memorandum of Opinion and Order, August 3, 1970
(Br. A l ) .
31 Two new junior high schools are scheduled to open for the
1970-71 school year. Both proposed plans contemplate assigning
students to these new schools. It is significant that under the board
plan one of the schools would be 100% white and the other 91%
white (830a).
22
maining school would be 91% white. The plan employed
rezoning and satellite zones.32
The district court approved of the hoard’s plan except
as to Piedmont, and gave the board four options: (1) re
zoning to eliminate the racial identity of the remaining
black school, (2) two-way transportation of pupils between
Piedmont and white schools, (3) closing Piedmont, or (4)
adopting the Finger Plan. The hoard reluctantly chose to
employ the Finger Plan.
Judge Butzner found the plans for junior and senior
high schools by use of satellite zones together with trans
portation “a reasonable way of eliminating all segregation
in these schools” (1273a).
c. Elementary Schools—The board in restructuring at
tendance lines for the 76 elementary schools was unable
to affect a majority of the students attending racially iden
tifiable schools. As the court of appeals observed, “ Its
proposal left more than half the black elementary pupils
in nine schools that remained 86% to 100% black, and
assigned about half of the white elementary pupils to
schools that are 86% to 100% white” (1269a; see Exhibit
H, 832a-834a).
The Finger Plan also employed the board’s rezoning. 27
schools were rezoned, and 34 schools were desegreated by
clustering and pairing with transportation.33 Judge Mc
Millan described the plan:
Like the board plan, the Finger plan does as much by
rezoning school attendance lines as can reasonably be
accomplished. However, unlike the board plan, it does
not stop there. It goes further and desegregates all
the rest of the elementary schools by the technique of
grouping two or three outlying schools with one black
32 A “ satellite zone” is an area which is not contiguous with the
main attendance zone surrounding the school.
33 The designated clusters are shown in Exhibit K (838a-839a).
The zones of ten schools remained substantially unchanged.
23
inner city school; by transporting black students from
grades one through four to the outlying white schools;
and by transporting white students from the fifth and
sixth grades from the outlying white schools to the
inner city black school.
The “Finger Plan” itself . . . was prepared by the
school staff. . . . It represents the combined thought of
Dr. Finger and the school administrative staff as to a
valid method for promptly desegregating the elemen
tary schools. . . (1212a-1213a)
Under the plan the elementary schools would be from 60%
to 97% white with most of the schools about 70% white.
(See Exhibit J, 835a-837a.)
Judge McMillan found the board plan to be inadequate
and directed that the Finger Plan or some other plan
which would accomplish similar results be implemented.
The court of appeals agreed that the board plan was
unacceptable. “The district court properly disapproved
the school board’s elementary school proposal because it
left about one-half of both black and white elementary
pupils in schools that were nearly completely segregated”
(1275a). The court of appeals, however, decided that the
board should not be required to undertake the additional
transportation necessitated by the Finger Plan (1275a)
and directed further proceedings for the development of
another plan (1277a).
d. Transportation—The district court’s order required
additional transportation to be provided. The plurality
opinion approved of the increments of transportation to
accomplish the junior and senior high assignments (1273a)
but determined that the elementary school busing appeared
too extensive (1276a).
During the 1969-70 school year, the board operated 280
school buses transporting 24,737 of its 84,000 students.34
84 Judge McMillan made detailed and elaborate findings concern
ing the extent and cost of busing in the Charlotte system, the state
24
The board reported (619a) the number of children trans
ported, by grade level, as follows:
Another 5,000 students rode public transportation at a
reduced fare (1214a). The average annual cost per child
was about $20.00 or about $475,000.00 out of a total budget
of about 57 million dollars, almost all of which was reim
bursed by the state.36 The buses averaged 1.8 one-way trips * 35
and the country, in his Supplemental Findings of March 21, 1970
(1198a). (See also Further Findings, etc. of April 3, 1970
(1259a)). The court had examined the transportation system in
previous decisions as well (306a-307a, 449a-450a, 822a-823a).
Similar evidence was presented at the July, 1970 hearing with
resulting findings by the court (Br. A l ) . These additional findings
are discussed below.
35 See Further Findings, etc., April 3, 1970 (1359a-1260a). The
district court had originally understood the average cost to be
about $40.00 per pupil (306a-307a, 1200a). The state reimburses
local school boards for operating expenses for transportation for
those students who are eligible under state law. The original cost
of the bus is borne by the local board but the state replaces worn
out buses (1259a-1260a).
During 1969-70 and previous years, pupils eligible for trans
portation were those children who lived more than 1 y2 miles from
school and who lived either in the county or in portions of the city
which had been annexed since 1957. Additionally, the state paid
the transportation costs for children who lived within the pre-1957
city limits who attended schools outside of the pre-1957 limits
(1203a).
For the 1970-71 school year, as a result of a decision in an unre
lated case, Sparrow v. Gill, 304 F. Supp. 86 (M.D. N.C. 1969)
(3-judge court), the State Board of Education has directed each
school system either to offer transportation (at state rather than
local expense) to all city children living more than 1% miles from
the school to which they are assigned or to no children living within
the city limits.
Thus all of the children to be bused under the court approved
plan would be eligible for transportation at state, rather than local
expense. (See, Br. A l ) .
Pre-school
Elementary
Junior High
Senior High
599
10,441
8,989
4,708
25
per day carrying an average of 83.2 students, averaging
40.8 miles (1200a).36 37
Judge McMillan’s Findings in March (which were re
affirmed after 8 days of hearings in July, 1970) as ac
cepted by the court of appeals show the added transporta
tion under the plan ordered on February 5 to be:
No. of
Pupils
No. of
Buses
Operating1
Costs
Senior High 1,500 20 $ 30,000
Junior High 2,500 28 50,000
Elementary 9,300 90 186,000
Total 13,00 138 $266,000
The initial one-time38 capital outlay to purchase new
buses would be $745.200.39 However, it was discovered at
36 The overall figures for the state show a higher percentage of
students riding buses than in Charlotte. During the 1968-69 school
year about 55% of all students in North Carolina rode buses to
school; 70.9% were elementary students (1199a). (Elementary
students are defined by the state for these purposes as students in
grades 1 through 8.)
37 These operating cost figures are as determined by the court of
appeals (1269a) by applying the district court’s Further Findings,
etc. of April 3, 1970 (1259a) to its Supplemental Findings of
March 21, 1970 (1198a). Operating costs are reimbursed by the
state.
The board had claimed much greater increases in the extent and
cost of additional busing, but the district court, after carefully
analyzing the data, found the board’s figures to be exaggerated
(see “ Discount Factors,” (1214a-1216a). The court’s findings are
also consistent with the transportation requirements projected by
the board for its plan to transport 3,000 Negro children to the
suburbs for the 1969-70 year (Exhibit E, 491a).
38 Obsolete buses are replaced by the state. See note 35, supra.
39 The district court observed that there was at least 3 million
dollars worth of vacant school property which had been abandoned
pursuant to the 1969-70 desegregation plan (1219a) and which, as
the board had pointed out in its report in the summer of 1969,
could be disposed of to produce necessary “ desegregation” funds
(Exhibit E, 491a).
2 6
the recent hearings that the board has on hand 107 buses
not now being used to transport children to school.
14. Up until the July 15, 1970 hearings, the defen
dants had allowed the court to believe they only had
280 busses plus a few spares. On the last day of the
hearing, however (July 24, 1970), some amazing testi
mony was developed on cross-examination of the wit
ness J.W. Harrison, the Transportation Superinten
dent. He testified and the court finds as facts that in
addition to the 280 “regular” busses, the Board’s bus
assets include at least the following:
(i) Spare busses .................................. 20
(ii) Activity busses (each driven less
than 1,000 miles a year) ................ 20
(iii) Used busses replaced by new ones
in 1969-70 ....................................... 30
(iv) New busses currently scheduled
for replacement purposes and ex
pected to be delivered in near
future ......................... 28
Total: 107
(Br. A 18).
Moreover, the court found that since “early 1970 . . . there
were 75 new busses available to the local school system
if they wanted them, out of the 400 new busses then held
by the state” and that the 400 second-hand busses in the
state are “available on loan, without cost, for local school
boards to use in 1970-71” that “could be safely used”
(Br. A 1).
Thus no initial capital expenditures for busses is re
quired of the local board.
27
“No capital outlay will be required this year to
comply with the court’s order. The School Board
and the county government have ample surplus and
other funds on hand to replace with new busses as
many of the used busses as 1970-71 experience may
show they actually need” (Br. A 1).
And, again, operating costs are borne by the state.
The board itself had proposed the busing of 4,200 black
inner-city children for the 1969-70 school year to outlying
suburban schools as a desegregation measure (584a-586a).
The board’s February 2 plan proposes to bus approxi
mately 5,000 additional students, about half of whom are
elementary pupils. A major portion of this busing is within
the City (1217a, 1270a, n. 4). Moreover, there is nothing-
novel about city children riding school busses. Children
living in the city but outside of the 1957 city limits have
been bused. Many city boards of education, such as Greens
boro, have provided transportation for all city children
living more than 1% miles from school with local funds.
The present State Superintendent of Public Instruction,
his predecessor and the prestigious 1969 Report of the
Governor’s Study Commission on the Public School System
of North Carolina had all recommended that transportation
be provided for children, city as well as rural, on an equal
basis (1201a-1202). State policy for the 1970-71 school
year is that all city children living more than 1 V2 miles
from school will be eligible for transportation at state
expense.
The bus trips required for the paired elementary schools
would be straight-line non-stop trips (1205a), would be
shorter and would take less time than the average bus trip
in the sytem or in the state (1199a, 1205a).
34____
(f) The average one-way bus trip in the system
today is over 15 miles in length and takes nearly
an hour and a quarter. The average length of the
one-way trips required under the court approved plan
for elementary students is less than seven miles, and
would appear to require not over 35 minutes at the
most, because no stops will be necessary between
schools (1215a).40
Busing was a technique employed by the board to main
tain its dual system as recently as 1966 (1200a); even
today, school buses transport white students to outlying
white schools while Negro students walk to their all-black
schools (1203a-1204).
Judge McMillan’s most recent memorandum includes
significant findings concerning transportation. The ex
haustive evidence on transportation presented in July veri
fied beyond question the court’s conclusions of March. It
also revealed, even more clearly, the gross exaggerations
of the Board’s transportation estimates for all desegrega
tion plans. Among the more pertinent findings are:
1. “In North Carolina the school bus has been used
for half a century to transport children to segregated
consolidated schools” (Br. A16).
2. The state now authorizes transportation at state
expense for all city children living more than a mile
40 The court later explained how these figures were developed:
The average straight line mileage between the elementary
schools paired or grouped under the “ cross-bussing” plan is
approximately 5% miles. The average bus trip mileage of
about seven miles which was found in paragraph 34(f) was
arrived at by the method which J. D. Morgan, the county
school bus superintendent, testified he uses for such estimates
—taking straight line mileage and adding 25%. (Emphasis in
original; 1215a.)
29
and a half from school, causing a significant increase
in the number of children riding school busses in North
Carolina from the 55% who were bussed during the
1968-69 school year (Br. A16).
3. “ School bus transportation is safer than any
other form of transportation for school children” (Br.
A16).
4. There were 17 busses carrying 700 four and five
year old children to child development centers on one
way trips ranging from seven to thirty-nine miles dur
ing the 1969-70 school year (Br. A18, A24).
5. The Board’s cost “ ‘estimates,’ when heard against
the actual facts, border on fantasy!” (Br. A24). Its
projections do not, as claimed, reflect the Board’s ex
perience in transporting inner-city black children to
outlying white schools for the 1969-70 school year.
“ [T]he evidence [shows] for example . . . that one
[such] ‘desegregation bus’ (Bus #23, Exhibit 54)
transported 99 children daily among schools as
remote as Northwest Charlotte (9th and Bethune)
on the one hand and Sharon Elementary and
Beverly Woods Elementary on the other, with
the driver then going on in the bus to South High
School” (Br. A22).41
6. There is an emple supply of busses, new and
used, money and drivers to implement the court order
(Br. A18-A20, A26).42
41 The defendants estimate for all plans are based upon the as
sumption that one bus will make one trip to one school with one
load of 45 or less children (Br. A21-A22).
42 The court also found to be without basis the Board’s claim that:
elementary children should not ride buses ( “ There may be more
first graders than children of any other age riding school busses”
(Br. A 24)) ; that additional buses will unduly clog traffic in Char
lotte (Br. A 2 5 ); and that it would unduly disrupt the system if
30
7. Other Elementary Plans Reviewed by the
District Court in July, I97042a
Judge McMillan reviewed and compared five elementary
plans at the hearings in July, 1970: (1) The majority
hoard plan which he had rejected in February and which
the court of appeals had rejected; (2) the Finger plan as
ordered in February, 1970; (3) the minority board plan
supported by four of the nine members of the board;
(4) another plan which Dr. Finger had prepared when
acting as court consultant; and (5) the HEW plan.
a. The Majority Board Plan— The court was of the
opinion that the court of appeals had required the board
to prepare and present another plan. The board chose
not to do so, but relied again upon its February submis
sion. Judge McMillan was not persuaded that he could
approve a plan which left over half of the black and white
elementary children in racially identifiable schools and
which had been rejected by the court of appeals (Br. A27).
b. The HEW Plan—This plan was developed by a team
of four HEW officials. They did not consult with or seek
the assistance of the local staff in the preparation of the
plan. The team was lead by Mr. Henry Kemp, recently
hired by HEW, who had no previous experience as an
educator with a school system of over 6,000-7,000 students.
Charlotte was Mr. Kemp’s first assignment by HEW to
prepare a desegregation plan. His principal assistant was
it were necessary to stagger the hours of school to simplify trans
portation problems (“ The schools already operate on staggered
schedules. . . . The court finds that staggered opening and dosing
hours for elementary schools, and arrangement of class schedules
of bus drivers for late arrival and early departure are facts of
life which will not be eliminated by desegregation of the schools”
(Br. A25-A26).)
42a At the time of the preparation of this brief, the July, 1970
proceedings have not yet been transcribed.
31
Mr. John Cross, a young lawyer who also had never
worked upon a complete desegregation plan for a city or
metropolitan school system.
The plan used the newly created zones of the majority
board and Finger plans and then created several contigu
ous clusters each containing a black school with two or
more rezoned desegregated schools with each school serv
ing all the students within the cluster for 1, 2 or 3 grades.
It left two schools all black.43 The schools which had been
desegregated by rezoning would therefore have a signifi
cantly greater black student population than under the
Finger plan.
Both plaintiffs and defendants objected strenuously to
the plan for substantially the same reasons. The Board’s
position on the HEW plan was unanimous.44 The court
described the HEW plan:
2. The HEW plan.—This plan proposes to adopt
the basic zoning program of parts of the Board ma
jority plan, and then to re-zone some of the black
schools with some white schools, mostly in low and
middle income areas, and by clustering, pairing, group
ing and transportation, to produce a substantial de
43 One of these schools, Double Oaks, is in a cul-de-sac which was
built to serve a segregated public housing project which surrounds
it. Dr. Finger testified that if he were forced to decide which of
the black children in Charlotte would be desegregated and which
would not, he would seek initially to offer the children at Double
Oaks a desegregated education.
44 It was noted at the hearing that the Board’s rejection of the
H EW plan was the first unanimous action taken by the Board on
a desegregation issue in a long time. Four members of the Board
supported a minority plan at the July hearing which was designed
to desegregate all the elementary schools so that each school would
be approximately 70% white and 30% black; five supported the
board plan of February which left 10 black or predominantly
black schools.
32
segregation of the most of the black schools. The faults
of the plan are obvious.
It leaves two schools (Double Oaks and Oaklawn)
completely black; it leaves more than a score of other
schools completely white; it would withdraw from nu
merous white schools the black students who were
transported to those schools during the 1969-70 school
year. The clusters proposed by HEW would for the
most part continue to be thought of as “black” in this
county because the school populations of most of the
clusters would vary from 50% to 57% black and the
lowest black percentage in any cluster is 36%. Recom
mended HEW faculty assignments to these clusters of
schools contemplated faculties which in the main would
be less than half white, and this would be another
retrogression from the arrangements already made by
the School Board for the fall term! Contrary to the
orders of the district court and the Circuit Court, the
HEW people limited their zoning to contiguous areas.
All witnesses except the HEW representatives them
selves joined in hearty criticism of the HEW plan be
cause of its ignorance of local problems, because of its
threat of resegregation, and because it tends to con
centrate upon the black and low- or middle-income com
munity a race problem that is county wide.
In other days and other places the HEW plan would
have looked good; and in those districts where black
students are in the majority, much of such a plan could
well be reasonable today. However, “reasonableness”
has to be measured in the context; and in this context
the HEW plan does not pass muster. It also on the
facts of this case would fail to comply with the Con
stitution (Br. A28-A29).
c. The Finger Plan, the Board Minority Plan and the
Preliminary Finger Plan—Judge McMillan found each of
the three remaining plans to be basically acceptable, but
found the original Finger plan to be the only finished plan.
“ The original court ordered (Finger) plan is the only
complete plan before the court” (Br. A2).
The Minority plan created clusters of two or more ele
mentary schools zones using the old (1969-70) attendance
areas and included all elementary schools. Each cluster
contains approximately 2,000 students with a white-black
ratio in the neighborhood of 70%-30%. There is no method
specified as to how the students would be assigned within
the clusters, although the principal author of the plan, Dr.
Carlton Watkins, testified that he favored some kind of
random assignment plan which would produce the desired
racial ratio at each school. He also favored having each
school serve grades 1 through 6 rather than having altered
grade structures as in the Finger plans where each school
would serve either grades one through four or five and six.
In terms of the number of children to be transported and
transportation costs the plans are not greatly different.45
“ All plans which desegregate all the schools will require
transporting approximately the same number of chil
dren. The overall cost, if a zone pupil assignment
method is adopted, the minority Board Plan may be a
little cheaper than the Finger plan” (Br. A23). 46
46 The HEW plan would require somewhat less busing at less
cost because it leaves two schools all-black. I f those schools were
desegregated, however, the number of children to be bused would
be about the same at a cost not significantly less than any of the
other plans.
34
As to the preliminary Finger plan: “From the standpoint
of economics it may he the cheapest plan available”
(Br. A23).
Judge McMillan indicated the relative advantages and
disadvantage, of these three plans. He judged each plan
to be constitutional since each plan is feasible, reasonable
and desegregates the schools. He, therefore, continued in
effect the February 5 order, but allowed the Board to choose
one of the other acceptable plans or some combination
thereof on or before August 7, 1970. At a meeting on Au
gust 6, 1970, the board decided not to exercise any of these
options (Br. A40). The court therefore ordered the Feb
ruary 5 plan to be implemented (Br. A39).
Summary of Argument
I
Both courts below held that the Charlotte-Mecklenburg
school system was unconstitutionally racially segregated
during the 1968-69 and 1969-70 school years. These hold
ings were clearly correct.
During the 1969-70 school year, the school board’s de
segregation plan which provided for the assignment of
pupils by geographic attendance zones with pupils allowed
a “free transfer” to other schools had resulted in: more
than 16,000 of the 24,714 black pupils attending all-black
or predominantly black schools; over 45,000 of the 59,000
white students attending schools which were obviously
white; 16 schools were 98-100% black; 9 other schools were
readily identifiable as black; 57 schools were identifiable
as white; only 24 schools were not identifiable by race;
and the faculties of 90% of the schools were still obviously
white or black. In the elementary schools about three-
fourths of the 13,010 black elementary pupils attended
black or predominantly black schools. The courts below,
35
in applying the teachings of Brown v. Board of Education,
347 U.S. 483 (1954); Green v. School Board of New Kent
County, 391 U.S. 430 (1968) and Monroe v. Board of Com
missioners, 391 U.S. 450 (1968), properly found the schools
to he unlawfully segregated.
The district judge found that the segregation of black
students in Charlotte had produced its inevitable results
in retarded achievement. Although this case does not
depend upon such findings of harm to black children,
Cooper v. Aaron, 358 U.S. 1, 19 (1958), these facts pro
foundly impressed Judge McMillan and underscored the
importance of his holding that the school board has “ a duty
to act positively to fashion affirmatively a school system as
free as possible from the lasting effects of such historical
apartheid” (293a).
The courts below found that the segregation of school
children in Charlotte was caused by actions of govern
mental officials. The school board, for its part had over
the years chosen school sites, determined capacities and
drawn zone lines in a fashion to promote segregation. The
residential segregation found in Charlotte was in large
part created and maintained by the official actions of those
involved in planning, zoning, public housing, urban renewal
and other activities. Neighborhoods were kept white by
the use of racial covenants, the functional equivalent of
racial zoning ordinances. (Bell v. Maryland, 378 U.S. 226,
329 (1964), Mr. Justice Black dissenting.) Thus, no claim
that the schools should remain segregated by reference to
a “neighborhood school” policy is tenable. As this Court
made plain in Cooper v. Aaron, 358 U.S. 1, 16-17 (1958),
school boards are agents of the state and will not be ex
cused from their duty to guarantee the constitutional rights
of Negro children because the “vindication of those rights
was rendered difficult or impossible by actions of other
state officials.”
36
II
The goal set by the district court to eliminate the racial
identity of the present “black” schools in the Charlotte-
Mecklenburg system is in conformity with the decisions
of this Court. Upon finding that the continued existence
of all-black schools in Charlotte was the result of racial
discrimination by the school board and other governmental
agencies, the court was required to seek ways to eliminate
the consequences of these discriminatory actions. This
Court has said in Green v. County School Board of New
Kent County, 391 U.S. 430 (1968) that “the system of seg
regation and its effects” (id. at 440) must be dismantled
(id. 391 U.S. at 437), and eliminated “root and branch”
(id. at 438). A desegregation plan must “promise realis
tically to convert promptly to a system without a ‘white’
school and a ‘Negro’ school, but just schools” (id. at 442)
and courts are to enter decrees “which will so far as possi
ble eliminate the discriminatory effects of the past as well
as bar like discrimination in the future” (id. at 438, note 4).
The trial judge, therefore, when he found it was necessary
to appoint a consultant to assist him in preparing a plan
because of the recalcitrance of the school board, appropri
ately instructed the consultant that black schools were
illegally segregated in Charlotte and that “efforts should
be made to reach a 71-29 [white-black] ratio in the various
schools so that there will be no basis for contending that
one school is racially different from the others, but to
understand that variations from that norm may be un
avoidable.” This specific, although flexible, goal for pupil
assignments is exactly parallel to the kind of goal for
faculty desegregation set by the district court and approved
by this Court in United States v. Montgomery County
Board of Education, 395 U.S. 225 (1968).
37
In contrast to the complete relief sought by the district
court, the court of appeals has announced a new rule look
ing toward less than complete relief. The new principle
requires that in each case a court must decide whether the
goal of complete desegregation to eliminate racially identi
fiable schools is a “reasonable” goal in that it can be ac
complished by “reasonable” means. The new rule portends
serious consequences for the general course of school de
segregation. It is a new litigable issue which will produce
less desegregation and at a slower pace. The rule is vague
and ambiguous. The only thing clear about it is that it
means less desegregation than the standard which we un
derstood to apply before, that is, whether a plan is feasible.
And there is no question as to the feasibility of the plan
set aside by the court of appeals.
The court of appeals agrees with the district court that
the segregation sought to be dismantled is illegal, but holds
that, for some reason, the remedy is not worth the price.
We think such a finding is unacceptable in the United States
and conflicts with Griffin v. School Board, 377 U.S. 218
(1964). The techniques to right the wrong found to exist
in Charlotte are at hand as the court ordered plan so clearly
demonstrates. The holding of the court of appeals threatens
to water down or temper the duty to convert to a unitary
system. It should be rejected.
The defendants have argued that provisions of the Civil
Rights Act of 1964 (Sections 401(b) and 407(a)(2), codi
fied as 42 U.S.C. §§2000e(b) and 2000c-(a) (2)) forbid the
busing ordered by the district court. We think the dis
position of this issue by the court below was clearly correct
in ruling that the Civil Rights Act placed “no limitations
on the power of school boards or the courts to remedy un
constitutional segregation” (1274a). This is the construe-
38
tion placed on the statute by all four circuits which have
addressed the issue. Moreover, the district court did not
impose racial balance. Under its order the schools would
vary from 3% to 41% black. What the court did do was
to set a specific, yet flexible goal, the purpose of which was
“the compliance of this school system with the Constitu
tion by eliminating the racial characteristics of its schools”
(Br. A10).
I l l
The court-ordered desegregation plan meets the most im
portant test of Green v. County School Board of New Kent
County, 391 U.S. 430 (1968), in that the plan does promise
to actually dismantle the dual system and provide a unitary
system of schools. The principle characteristics of the dual
system—the all-black schools—will be gone. The plan
works.
The plan was produced because the district judge under
took the duty imposed upon him by law to seek means of
desegregating the schools. It would seem beyond question
that the court, having a detailed, feasible plan before it
which desegregated all the schools was correct in judging
that the board had failed to meet its “heavy burden . . . to
explain its preference for an apparently less effective
method.” Green, supra, at 439.
We agree with the dissenters below that the proper test
is whether a plan is “ feasible” and whether it provides
“effective relief,” (Green, supra, at 439) not whether in
the subjective judgment of a court the means are “reason
able.” We do not understand the court below to question
the feasibility of the plan. The plan calls for a transporta
tion system which would be commensurate with the per
centage of pupils transported in the state. The additional
39
busing would be for considerably shorter distances and take
less time than the average distance and time for the bus
trips for the 23,000 students presently transported in 1969-
70. Nearly 11,000 elementary children are now being bused
in the system. About 700 pre-school children are being
transported great distances. The cost of the additional
transportation will be a tiny fraction of the school budget.
Enough buses are either on hand or available to be pur
chased or borrowed to implement the plan. The plan is
educationally sound. The only impediment to the immediate
conversion to a unitary school system under the court’s
plan is the board’s unwillingness to do so.
The courts below approved of the techniques of pairing
and clustering with transportation as appropriate and here
necessary means, to desegregate the schools. Pairing was
approved in Green (supra at 442, n. 6) and has been re
quired in scores of school districts. Bus transportation is
an ordinary tool of desegregation and has been required to
desegregate schools. Since the constitutional imperative
in this case is the desegregation of the schools, we can con
ceive of no reason why the courts below were wrong in hold
ing that busing be employed.
We think that the courts below were also correct in re
jecting the defendants’ arguments that there is something
wrong with assigning children to schools outside of their
zones of residence. School boards have traditionally and
necessarily reserved the right to alter attendance lines,
grade structures and educational programs for their
schools. As the district court’s decision plainly shows, seg
regation can be eliminated by choosing to alter grade struc
tures and provide transportation. The only reason for
limiting assignments to adjacent zones in Charlotte would
be to preserve segregation. In Charlotte only 541 of 17,000
of the children in black schools ride buses. At the white
40
schools, however, over 40% of the children already ride
school buses. The question is not whether children will
ride school buses, but where the buses will go.
The neighborhood school theory cannot be invoked now
in support of segregation when it has been traditionally
ignored to promote segregation. This is particularly true
in a state which buses over 54% of the children in public
schools.
The court of appeals has violated traditional standards
of review in overturning the decision of the district court.
In school desegregation eases district courts have been
admonished to assess “the circumstances present and op
tions available in each instance.” Green, supra, at 439. And
“ in this field the way must always be left open for experi
mentation.” United States v. Montgomery County Board
of Education, supra, at 235. The equitable decree entered
by the district court was faithful to those instructions and
should not have been disturbed without a strong showing
of abuse of discretion. United States v. W. T. Grant Co.,
345 U.S. 629 (1953). Instead of the traditional standards
of review, the court of appeals fashioned its own subjective
rule of reasonableness and vacated the district court’s judg
ment. This new rule signals to district judges that their
room for “ experimentation” and their “ options” are strictly
limited. The signal is “go slow.” We submit that the deci
sion below has not only undercut Green and Montgomery
County} but runs counter to the philosophy of Alexander v.
Holmes County Board of Education, 396 U.S. 19 (1969)
which requires immediate and effective relief. As Judge
Sobeloff observed in dissent “reasonableness” is “all de
liberate speed” in a new guise.
41
ARGUMENT
I.
The Public Schools of the Charlotte-Mecklenburg
School System Are Racially Segregated in Violation of
the Equal Protection Clause of the Fourteenth Amend
ment as the Result of Governmental Action Causing
School Segregation and Residential Segregation.
A. The Schools Are Organized in a Dual
Segregated Pattern.
Both courts below held that the Charlotte-Mecklenburg
system was still unconstitutionally racially segregated.
The record amply supports that finding and conclusion.
Prior to this suit in 1965 there had been only a token break
of the pattern of total racial segregation mandated by state
law. The desegregation plan adopted in 1965 and continued
in effect through the 1969-70 school term provided for the
assignment of pupils by geographic attendance zones with
pupils allowed a “free transfer” to attend the schools out
side their areas of residence.46 This is substantially the
same kind of plan considered by this Court and found to
be inadequate in Monroe v. Board of Commissioners, 391
U.S. 450 (1968).47 The court below concluded that: “ The
neighborhood school concept and freedom of choice as ad
ministered are not furthering desegregation” (313a; 300
F. Supp. at 1372). The court concluded that the Mecklen
burg “ rural schools are largely desegregated” but that in
46 The plan was approved in 1965, and affirmed on appeal. Swann
v. Charlotte-Mecklenburg Board of Education, 243 F. Supp. 667
(W.D. N.C. 1965), affirmed, 369 F.2d 29 (4th Cir. 1966).
47 A similar plan for geographic assignments and free transfers
was also involved in Northcross v. Board of Education of Memphis,
397 U.S. 232 (1970).
42
the city of Charlotte “schools are still largely segregated”
(302a; 300 F. Supp. at 1367-1368). Although the plan was
modified in July 1969 to attempt to increase desegreation
by closing certain black schools, there was little actual im
provement.48 Judge McMillan summarized the extent of
desegregation during the 1969-70 term in these words:
Of the 24,714 Negroes in the schools, something above
8,500 are attending “white” schools or schools not
readily identifiable by race. More than 16,000, however,
are obviously still in all-black or predominantly black
schools. The 9,216 in 100% black situations are con
siderably more than the number of black students in
Charlotte in 1954 at the time of the first Brown deci-
cision. The black school problem has not been solved.
The schools are still in major part segregated or
“dual” rather than desegregated or “unitary” (661a).
The court found that “nearly 13,000 out of 24,714 black
students still attend schools that are 98% to 100% black” ;
that “nine-tenths of the faculties are still obviously ‘black’
or ‘white’ ” ; and that “ over 45,000 out of 59,000 white stu
dents still attend schools which are obviously ‘white’ ”
48 The July 29, 1969, plan, which was approved for one year
only, did not produce the promised improvement and the court
held that there had been a wide “gap” between the school board’s
promise and its performance (659a). The court found that “only
1,315 instead of the promised 4,245 black pupils” were transferred
to white schools under the 1969 plan (659a). Even worse, the
manner in which the free transfer feature operated threatened to
transform some integrated schools into all-black schools threatening
a “rapid shift from white to black, [so that] the net result of the
1969 pupil plan would be nearly zero” (659a). By March 1970, the
court found even less progress: “ In substance, the plan which
was supposed to bring 4,245 children into a desegregated situation
had been handled or allowed to dissipate itself in such a way that
only about one-fourth of the promised transfers were made; and as
of now only 767 black children are actually being transported to
suburban white schools instead of the 4,245 advertised when the
plan was proposed by the board” (1226a).
43
(702a). During the school term just ended there were 11
schools which were 100% black, 5 schools 98-99% black, 3
schools 90-97% black, and 6 schools 55-89% black (660a).
Thus, in a school system where black pupils were but 29%
of the total, there were 25 schools out of 106 which the
district judge held were “ readily identifiable as black”
(660a).49
Segregation was particularly intense at the elementary
school level. About three-fourths of black elementary pupils
attended predominantly black or all-black schools. There
were 9,718 (or 74.6%) of the 13,010 black elementary pupils
in schools which were from 65% to 100% black (832a-834a)
and 60.7% of all black elementary pupils attended schools
that were 98-100% black (id.).50
The court of appeals agreed with the district court that
there was still a dual segregated system saying: “Notwith
standing our 1965 approval of the school hoard’s plan, the
district court properly held that the board was imper
missibly operating a dual system of schools in the light of
subsequent decisions of the Supreme Court, Green v. School
Bd. of New Kent County, 391 U.S. 430, 435 (1968), Monroe
v. Bd. of Comm’rs, 391 U.S. 450 (1968), and Alexander v.
Holmes County Bd. of Ed., 396 U.S. 19 (1969)” (1263a-
1264a).
49 The judge classified 57 schools as readily indentifiable as white
schools and 24 as not readily identifiable by race (660a).
60 The 1969-70 elementary school breakdown for heavily black
schools is as follows (832a-834a) :
No. of Elemen- No. of Elementary Students
% Black tary Schools White Black Totals
100% 8 1 5,311 5,312
98-99% 4 32 2,536 2,568
92% 1 83 902 985
65-80% 3 378 969 1,347
16 494 9,718 10,212
44
The several desegregation plans proposed by the school
hoard were rejected by the courts below because they failed
to accomplish sufficient desegregation.61 The board sought
to defend its fourth plan, filed in February 1970, in the
court below. But the court of appeals held that “ The dis
trict court properly disapproved the school board’s ele
mentary school proposal because it left about one-half of
both the black and white elementary pupils in schools that
were nearly completely segregated.” 62
The district judge examined the academic achievement
test results of pupils in the segregated and desegregated
schools in Charlotte and concluded that black children in
61 The board’s May 1969 plan was the same basic plan which had
been rejected in April 1969 with some modification of pupil trans
fer rules. The district court found that the free transfer plan did
not accomplish desegregation. See 300 F. Supp. at 1384; 453a.
The board’s July 1969 plan was approved “reluctantly” for one
year only. This plan closed 7 all-black schools and allowed pupils
from the closed schools to be transported (if they so chose) to
white schools. There was substantial opposition in the black com
munity to the fact that this plan operated by one-way busing of
blacks to white schools but closed black schools instead of desegre
gating them. The court found that the plan accomplished little
increase in desegregation. The board’s third proposal, the Novem
ber 17, 1969, plan was rejected in the order of December 1, 1969.
This plan called for rezoning. The court found that it would main
tain 7 all-black schools and that most of the 25 black schools serving
16,197 of the 24,714 black children would be continued as black
schools (701a).
62 The board’s senior high school plan, involving rezoning, was
approved by the trial court with one exception. The court changed
the zones to shift 300 black pupils in a designated area to Inde
pendence High School. This change created a satellite zone for In
dependence and the court of appeals rejected the board’s appeal,
and approved the change as one which “will tend to stabilize the
system by eliminating an almost totally white school in a zone to
which other whites might move with consequent ‘tipping’ or re
segregation of other schools” (1273a). The board’s proposals for
junior high schools were found unacceptable because the plan would
have left Piedmont Junior High 90% black and shifting toward
100% black.
45
Charlotte were suffering a substantial educational depri
vation caused by segregation. Judge McMillan found that:
Segregation produces inferior education, and it
makes little difference whether the school is hot and
decrepit or modern and air-conditioned.
It is painfully apparent that “quality education”
cannot live in a segregated school; segregation itself
is the greatest barrier to quality education (588a).
The judge found that “segregation in Mecklenburg County
has produced its inevitable results in the retarded educa
tional achievement and capacity of seg’regated school
children” (587a). Sixth grade students in black schools
were on the average achieving at a fourth grade level on
national achievement tests, whereas there was substantially
higher levels in integrated and white schools (304a; 588a;
702a-704a).
More recent data was reviewed in the opinion entered
on August 3, 1970. The gross disparities remained. Judge
McMillan concluded:
Of factors affecting educational progress of black
children, segregation appears to be the factor under
control of the State., which still constitutes the greatest
deterrent to achievement (Br. A9).
As noted above, Judge McMillan was persuaded by the
expert testimony63 and by the facts of the case that
“ segregation itself is the greatest barrier to quality educa- 53
53 Plaintiffs’ experts had testified at the hearing in March, 1969
in agreement with the conclusion of the Civil Rights Commission
that: “ The evidence indicates that Negro children attending deseg
regated schools that do not have compensatory education programs
perform better than Negro children in racially isolated schools with
such programs.” Racial Isolation in the Public Schools, A Report
of the United States Commission on Civil Rights, 205 (1967).
46
tion” (588a). And the school board apparently does not
perceive compensatory education as a viable substitute for
desegregation in creating equal educational opportunities
for its black children:
The defendants have come forward with no pro
gram nor intelligble description of ‘compensatory
education,’ and they advance no theory by which
segregated schools can be made equal to unsegregated
schools (Br. A16).
Whatever doubts there may be about the standardized
achievement tests as measuring instruments, the results
profoundly impressed the trial judge that black children
in Charlotte’s all-black schools were not receiving an equal
education. Of course, the case does not depend as a legal
matter upon such local findings of educational harm. “ The
right of a student not to be segregated on racial grounds
in schools so maintained is indeed so fundamental and
pervasive that it is embraced in the concept of due process
of law.” Cooper v. Aaron, 358 U.S. 1, 19 (1958). The
segregation system was a massive intentional disadvantag
ing of the Negro minority by the white majority and its
elimination is an urgent task. The district judge correctly
held that the school board has “a duty to act positively
to fashion affirmatively a school system as free as possible
from the lasting effects of such historical apartheid”
(293a).
B. Governmental Agencies Created Black Schools in
Black Neighborhoods by Promoting School Seg
regation and Residential Segregation.
The findings of the district court make it plain that the
existing pattern of school segregation in Charlotte-Meck-
lenburg is the deliberate result of state action designed to
create a segregated school system. The court found that all
47
the school segregation in Charlotte was illegal and that
there was no aspect of possibly innocent or adventitious
segregation. Each and every black school in the system
was held to be segregated in violation of the constitutional
prohibitions against racial discrimination:
On the facts in this record and with this background
of de jure segregation extending full fifteen years since
Brown I, this court is of the opinion that all the black
and predominantly black schools in the system are il
legally segregated, Green v. New Kent County; Henry
v. Clarksdale; United States v. Hinds County (711a).
The district court made no attempt to proclaim a general
principle that all-black schools are illegally segregated per
se. He held only that the particular all-black schools in
Charlotte were illegally segregated.54 That conclusion was
supported by substantial evidence and findings.
Judge McMillan found that the school board had gerry
mandered school attendance areas to promote segregation,
selected the sites and sizes of schools to promote segrega
tion, and used the school transportation system toward the
same end. It was held that the racial makeup of the
schools had been controlled:
. . . the court finds as a fact that no zones have ap
parently been created or maintained for the purpose
of promoting desegregation; that the whole plan of
“building schools where the pupils are” without fur
ther control promotes segregation; and that certain
schools, for example Billingsville, Second Ward,
Bruns Avenue and Amay James, obviously serve school
54 Judge McMillan stressed this point in his recent opinion. See
section headed, “ This is a local case in a local court— a lawsuit to
test the constitutional rights of local people (Br. A12).
48
zones which were either created or which have been
controlled so as to surround pockets of black students
and that the result of these actions is discriminatory.
These are not deemed as an exclusive list of such
situations, but as illustrations of a long standing policy
of control over the makeup of school population which
scarcely fits any true “neighborhood school” philos
ophy (455a-456a).
The court heard extensive evidence about the extent
of residential segregation in Charlotte and the govern
mental responsibility for the existing pattern of almost
total residential separation. About 98% of the black in
habitants of Charlotte reside in the northwest quadrant
of Charlotte. Judge McMillan summarized the findings
about how this extensive segregation came about in these
words:
The black schools are for the most part in black
residential areas. However, that does not make their
segregation constitutionally benign. In previous opin
ions the facts respecting their locations, their con
trolled size and their population have already been
found. Briefly summarized, these facts are that the
present location of white schools in white areas and
of black schools in black areas is the result of a varied
group of elements of public and private action all
deriving their basic strength originally from public
law or state or local governmental action. These ele
ments include, among others, the legal separation of
the races in schools, school busses, public accommoda
tions and housing; racial restrictions in deeds to land;
zoning ordinances; city planning; urban renewal; loca
tion of public low rent housing; and the actions of the
present School Board and others, before and since
1954, in locating and controlling the capacity of schools
49
so that there would usually be black schools handy to
black neighborhoods and white schools for white neigh
borhoods. There is so much state action embedded in
and shaping these events that the resulting segrega
tion is not innocent or “ de facto,” and the resulting
schools are not “ unitary” or desegregated (1228a-
1229a).
The Fourth Circuit accepted these findings and conclu
sions stating that they were “supported by the evidence”
(A. 1264a). The Fourth Circuit opinion mentions that
“North Carolina courts, in common with many courts else
where, enforced racial restrictive covenants on real prop
erty until Shelley v. Kramer, 334 TJ.S. 1 (1948), prohibited
this discriminatory practice” (ibid.). See, e.g., Phillips v.
Wearn, 226 N.C. 290, 37 S.E.2d 895 (1946) (involving prop
erty in Mecklenburg County); Eason v. Buff aloe, 198 N.C.
520, 152 S.E. 496 (1930); Vernon v. R. J. Reynolds Realty
Co., 226 N.C. 58, 36 S.E.2d 710 (1946). Racial restrictive
covenants operated to exclude Negroes from entire areas
of cities. They had the same effect and purpose as residen
tial segregation laws and ordinances of the kind outlawed
by Buchanan v. Warley, 245 TJ.S. 60 (1917). Indeed, re
strictive covenants were the functional and practical equi
valent of such segregation ordinances when they were en
forced by injunctions as in Shelley, supra, or damage suits
(see Barrows v. Jackson, 346 TJ.S. 249 (1953)). Mr. Jus
tice Black has pointed out that Shelley was argued to this
Court on this basis by the Solicitor General, among others:
This type of agreement constituted a restraint on
alienation of property, sometimes in perpetuity, which,
if valid, was in reality the equivalent of and had the
effect of state and municipal zoning laws accomplish
ing the same kind of racial discrimination as if the State
had passed a statute instead of leaving this objective
50
to be accomplished by a system of private contracts.
(Bell v. Maryland, 378 U.S. 226, 329 (1964), Mr. Justice
Black, dissenting.)
Judge McMillan’s findings about the causes of residential
segregation in Charlotte are entirely corroborated by the
national experience as reported by the United States Com
mission on Civil Rights. The Commission’s formal findings
were:
5. Within cities, as within metropolitan areas, there
is a high degree of residential segregation—reflected
in the schools—for which responsibility is shared by
both the private housing industry and government.
(a) The discriminatory practices by city landlords,
lending institutions, and real estate brokers have con
tributed to the residential confinement of Negroes.55
(b) State and local governments have contributed to
the pattern of increasing residential segregation
through such past discriminatory practices as racial
zoning ordinances and racially restrictive covenants
capable of judicial enforcement. Current practices in
such matters as the location of low-rent public housing
projects, and the displacement of large numbers of low-
income nonwhite families through local improvement
programs also are intensifying residential segrega
tion.56
(c) Federal housing programs and policies serve to
intensify racial concentrations in cities. Federal poli
cies governing low- and moderate-income housing pro- * * 66
66 See the testimony of Daniel 0. Hennigan covering this kind
of discrimination in Charlotte (28a-57a).
66 See the testimony of Yale Rabin concerning state and local ac
tions in Charlotte (174a-241a).
51
grams such, as low-rent public housing and FHA 221
(d)(3) do not promote the location of housing outside
areas of intense racial concentration. Federal urban
renewal policy is insufficiently concerned with the im
pact of relocation on racial concentrations within cities.
6. Individual choice contributes to the maintenance
of residential segregation, although the impact of such
choice is difficult to assess since the housing market
has been restricted. (Racial Isolation in the Public
Schools, supra, at 201-202.)
The Commission reported that the policy of the Federal
Housing Administration in the 1930’s and 1940’s was a
“principal impetus to housing discrimination” (Id. at 254).67
The FHA not only recommended the insertion of racial
covenants, but even after Shelley v. Kraemer, supra, the
Commission reports, “the FHA continued to treat racial
integration in housing as a reason for denying benefits to
an applicant” (id. at 254; citing Abrams, Forbidden Neigh
bors, 233 (1955), and Weaver, The Negro Ghetto, 71-73
(1948)).
The court below thus accepted the finding of the trial
court that the schools in Charlotte were illegally segre
gated. Judge Butzner wrote:
The fact that similar forces operate in cities through
out the nation under the mask of de facto segregation
67 A glaring example of the nearly inevitable effect of the policy
of the federal government to promote residential segregation and
the school board’s policy of building schools in accommodation of
that policy is the Double Oaks School. The federal housing officials
and the local housing authority built a low-income housing develop
ment for blacks, leaving space for a school. The school board built
a school to serve the children of that project. In 1969-70, as in pre
vious years, only black children attended Double Oaks— over 800
(832a). This is one of the ten schools the board would leave all
black (id.) and is one of the two schools HEW would leave all
black.
52
provides no justification for allowing us to ignore the
part that government plays in creating segregated
neighborhood schools (A. 1264a-1265a).
The court below thus rejected the board’s argument that
segregation in the Charlotte schools could be justified by
reference to a “neighborhood school” policy. The Fourth
Circuit cites a number of decisions where courts have
reached similar conclusions about the relation between seg
regated housing policies and segregated schools, e.g., Henry
v. Clarksdale Munic. Separate School Dist., 409 F.2d 682,
689 (5th Cir. 1969), cert, denied, 396 U.S. 940 (1969);
United States v. School Dist. 151 of Cook County, 404 F.2d
1125, 1130 (7th Cir. 1968), aff’g 286 F. Supp. 786, 798 (N.D.
111. 1968); Brewer v. School Bd. of City of Norfolk, 397
F.2d 37, 41 (4th Cir. 1968); Keyes v. School Dist. No. One,
Denver, 303 F. Supp. 279 and 289 (D. Colo. 1969), stay
vacated, 396 U.S. 1215 (1969); Dowell v. School Bd. of
Oklahoma City, 244 F. Supp. 971, 975 (W.D. Okla. 1955),
a ff’d, 375 F.2d 158 (10th Cir.), cert, denied, 387 U.S. 931
(1967).58
It does not matter, for purposes of judging the constitu
tionality of the resulting school segregation, that agencies
of the state, other than the local school board, are in part
ss gpe ais0 Holland v. Board of Public Instruction of Palm Beach
County. 258 F.2d 730. 732 (5th Cir. 1958). In a number of recent
decisions the Fifth Circuit has held that geographic zoning plans
are acceptable only if they tend “to disestablish rather than rein
force the dual svstem of segregated schools. ’ United States v.
Gree nwood Municipal Sep. School Dist.. 406 F.2d 1086. 1093 ( 5th
Cir. 1969 : Tnited States v. Indianola Municipal Sep. School Dist.,
410 F.2d 626 (5th Cir. 1969). cert, denied.------ U .S .------- (19701:
Davis v. Board of School Comm'rs of Mobile County. 393 F.2d 690.
694 • 5th Cir. 1968 : United States v. Choctaec County Board of
Ed.. 41" F.2«t 838 5th Cir. 19691: Braxton v. Board of Public
Iml'nteti.in Du vU County. 4ft? F.2d 900 ( 5th Cir. 1968 : ToLVjr
v. Empties Parish School Board. 423 F.2d 1132 (5th Cir. 1970 ' :
Youngblood t . Boar# j~ Public Instruction or Bay County. Fix..
------ F .2 d -------- 5th Cir . No. 29369. Julv 24.' 1970 .
53
responsible for the residential segregation pattern. As
this Court made plain in Cooper v. Aaron, 358 IT.S. 1, 16-17
(1958), school boards are agents of the state and will not
be excused from their duty to guarantee the constitutional
rights of Negro children because the “vindication of those
rights was rendered difficult or impossible by the actions of
other state officials.” Nor is the local board’s responsibility
relieved by the fact that private as well as governmental
discrimination in housing has contributed to the segregated
residential pattern. As Judge McMillan has found, the
board has made choices in locating schools, fixing the sizes
and grade structures of schools, determining the trans
portation patterns, and adopting the policy of assigning
pupils by residences. The board has defined the relevant
school “neighborhoods” by its own decisions. Housing
segregation results in school segregation only in the con
text of these choices by the school board—an agency of the
state. Thus, a situation which has the appearance of in
evitability—school segregation in Charlotte’s black ghetto
—is revealed as the product of governmental decision
making. As the Fourth Circuit held in Brewer v. School
Board of the City of Norfolk, 397 F.2d 37, 41-42 (4th Cir.
1968):
If residential racial discrimination exists it is im
material that it results from private action. The school
board cannot build its exclusionary attendance areas
upon private racial discrimination. Assignment of pu
pils to neighborhood schools is a sound concept, but it
cannot be approved if residence in a neighborhood is
denied to Negro pupils solely on the ground of color
(Footnotes omitted).
The reasoning in Brewer is all the more apt where, as
here, government has contributed heavily to creating the
segregated housing pattern.
54
II.
The District Court Was Correct in Ruling That the
Dual Segregated System in Charlotte-Mecklenburg Must
Be Disestablished by Reorganizing the System So That
No Racially Identifiable Black Schools Remained. The
Court of Appeals Erred in Substituting a Less Specific
Desegregation Goal.
A. This Court’s Decisions Require Complete
School Desegregation.
The district court sought to afford complete relief in
this case by requiring a desegregation plan which would
eliminate the racially identifiable “black” schools and
leave “just schools” . The trial judge’s decision that each
predominantly black or all-black school in Charlotte must
be reorganized on an integrated basis by reassigning pupils
and faculties is in conformity with this Court’s decisions
defining the duty to eliminate state-imposed segregation
in the public schools. Brown v. Board of Education, 347
U.S. 483 (1954) (Brown I), and Brown v. Board of Educa
tion, 349 U.S. 294 (1955) (Brown II). Brown II speaks of
the need “to achieve a system of determining admission to
the public schools on a nonracial basis.” (349 U.S. at 300-
301) In Cooper v. Aaron, 358 U.S. 1, 7 (1958), the Court
wrote of the duty of “initiating desegregation and bring
ing about the elimination of racial discrimination in the
pubic school system.” In 1968, in Green v. County School
Board of New Kent County, 391 U.S. 430 (1968), the Court
made it plain that Brown required more than simply a sys
tem of nondiscriminatory admission of Negroes to “white”
schools. Rather, the whole system of segregation must be
dismantled {id., 391 U.S. at 437), and discrimination must
be eliminated “root and branch” {id. at 438). The Con-
55
stitution requires “abolition of the system of segregation
and its effects” (id. at 440).
This Court has called for the abolition of racially iden
tifiable schools saying that desegregation plans must
“promise realistically to convert promptly to a system
without a ‘white’ school and a ‘Negro’ school, but just
schools” (id. at 442). The requirement of complete relief
was emphasized by the holding in Green, supra,, that courts
should render decrees “which will so far as possible elim
inate the discriminatory effects of the past as well as bar
like discrimination in the future” (391 U.S. at 438, note 4).
Mr. Justice Brennan’s opinion said that the courts should
“retain jurisdiction until it is clear that state-imposed
segregation has been completely removed” (id. at 439).
Thus it ought to be entirely clear that this Court’s decisions
require fundamental reform of racially segregated dual
systems to abolish every vestige of segregation and prevent
its recurrence. The courts are not limited to requiring a
mere minimum amount of desegregation which might give
the bare appearance of non-discriminatory assignments.
Rather, the lower courts have been admonished to strike
out the roots and branches of the segregated system. The
district court’s decision was faithful to the duty set out in
Green, supra.
Judge McMillan, having determined that the black
schools in Charlotte were illegally segregated, directed his
expert consultant to devise a plan which eliminated the
black schools. Judge McMillan had to appoint his own con
sultant to devise a plan because of what Judge Sobeloff
has aptly described as the school board’s “total lack of
cooperation” and the fact that the board “has resisted and
delayed desegregation at every turn” (1293a; see note 9 at
1291a-1293a). Accordingly, the court set forth detailed
guidelines for the court consultant to follow in preparing
56
the plan. Among the criteria set forth in the December 1,
1969, opinion are the following:
2. Drawing school zone lines, like “freedom of trans
fer,” is not an end in itself; and a plan of geographic
zoning which perpetuates discriminatory segregation
is unlawful . . . [citations omitted].
# # *
12. Fixed ratios of pupils in particular schools will
not be set. If the board in one of its three tries had
presented a plan for desegregation, the court would
have sought ways to approve variations in pupil ratios.
In default of any such plan from the school board, the
court will start with the thought, originally advanced
in the order of April 23, that efforts should be made
to reach a 71-29 ratio in the various schools so that
there will be no basis for contending that one school
is racially different from the others, but to understand
that variations from that norm may be unavoidable.
# # #
14. Where pupils live must not control where they
are assigned to school, if some other approach is neces
sary in order to eliminate racial segregation . . . [cita
tions omitted],
15. On the facts in this record and with this back
ground of de jure segregation extending full fifteen
years since Brown I, this court is of the opinion that
all the black and predominantly black schools in the
system are illegally segregated . . . [citations omitted].
# # *
17. Pairing of grades has been expressly approved
by the appellate courts . . . [citations omitted]. Pair
ing, grouping, clustering, and perhaps other methods
57
may and will be considered and used if necessary to
desegregate the schools.
18. Some 25,000 out of 84,000 children in this coun
try ride school busses each day, and the number eligible
for transportation under present rules may be more
than 30,000. A transportation system already this mas
sive may be adaptable to effective use in desegregating
schools (708a-712a).
Petitioners urge that the desegregation goals for Char
lotte which were set forth in the trial court’s instructions
to the expert consultant were entirely appropriate under
this Court’s decision in the Green case. This Court’s de
cision in United States v. Montgomery County Board of
Education, 395 U.S. 225 (1968), also provides a substantial
precedent for the trial judge’s approach in setting a con
crete desegregation objective. Judge Winter’s dissenting
opinion below states this well (1301a-1302a):
The district court wisely attempted to remedy the
present dual system by requiring that pupil assign
ment be based “as nearly as practicable” on the racial
composition of the school system, 71% white and 29%
black. The plan ordered fell short of complete realiza
tion of this remedial goal. While individual schools
will vary in racial composition from 3% to 41% black,
most schools will be clustered around the entire sys
tem’s overall racial ratio. It would seem to follow from
United States v. Montgomery Board of Education, 395
U. S. 225, 232 (1968), that the district court’s utiliza
tion of racial ratios to dismantle this dual system and
remedy the effects of segregation was at least well
within the range of its discretion. There the Supreme
Court approved as a requirement of faculty integra
tion that “in each school the ratio of white to Negro
58
faculty members is substantially the same as it is
throughout the system.” It did so recognizing that it
had previously said in New Kent County, 391 U. S.
at 439, “ [t]here is no universal answer to complex
problems of desegregation; there is obviously no one
plan that will do the job in every case. The matter
must be assessed in light of the circumstances present
and the options available in each instance.” If in a
proper case strict application of a ratio is an approved
device to achieve faculty integration, I know of no
reason why the same should not be true to achieve
pupil integration, especially where, as here, some wide
deviations from the overall ratio have been permitted
to accommodate circumstances with respect to par
ticular schools.
B. The Fourth Circuit’s New Reasonableness Rule
Makes the Goal of Desegregation Less Complete
and Specific and Threatens to Undermine Brown
v. Board of Education.
The court below, by a narrow vote (actually, only three
members of the court), has explicitly announced a new
rule of law to govern all school desegregation cases. The
new principle requires that in each case a court must decide
whether the goal of complete desegregation to eliminate
racially identifiable schools is a “reasonable” goal in that
it can be accomplished by “reasonable” means. Thus we
have not merely an issue about the reasonableness of
particular desegregation plans or techniques, but rather,
an issue about the reasonableness of the goal of desegrega
tion.
As Judge Sobeloff has stated so clearly in his dissent,
the new rule portends serious consequences for the general
course of school desegregation:
59
. . . Handed a new litigable issue—the so-called
reasonableness of a proposed plan—school boards can
be expected to exploit it to the hilt.59 The concept is
highly susceptible to delaying tactics in the courts.
Everyone can advance a different opinion of what is
reasonable. Thus, rarely would it be possible to make
expeditious disposition of a board’s claim that its
segregated system is not “ reasonably” eradicable.
Even more pernicious, the new-born rule furnishes a
powerful incentive to communities to perpetuate and
deepen the effects of race separation so that, when
challenged, they can protest that belated remedial
action would be unduly burdensome” (1290a-1291a).
We believe that the court of appeals erred by not adopt
ing the trial court’s more specific requirement that each
black school in Charlotte be reorganized so that it would
no longer be a racially identifiable black school. The
district judge made no effort to announce a rule of law
to govern any case but the Charlotte case (Br. A 12-A13).
He found that the Charlotte schools were unlawfully seg
regated and that it was educationally feasible to desegre
gate each of them. The Finger Plan demonstrates that
desegregation of all the schools is indeed feasible, and we
69 It was only two weeks later that Judge SobelofFs prediction
was realized. The trustees of School District No. 1 of Clarendon
County, South Carolina urged upon the court of appeals the “ rea
sonableness” of a freedom of choice plan which had not worked.
Brunson v. Board of Trustees of School District No. 1 of Clarendon
County, No. 14571,------ F .2 d -------- (4th Cir., June 5, 1970) (sep
arate concurring opinion by Judge Sobeloff) :
“ This case is the lineal descendant of Briggs v. Elliot, one
of the four cases consolidated in Brown v. Board of Educa
tion, 347 U.S. 483 (1954). [Footnote omitted] That it is still
being litigated at this date, nineteen years since Briggs was
initiated and sixteen years after the decision in Brown is a
most sobering thought.” Ibid.
60
do not understand the court of appeals majority to seri
ously question the general feasibility or educational sound
ness of the Finger Plan. However, the reasonableness
doctrine was applied to set aside the Finger Plan for
elementary schools on the ground that the board “ should
not be required to undertake such extensive additional
busing to discharge its obligation to create a unitary school
system” (1276a). At the same time, the reasonableness rule
was applied to approve the Finger Plan for secondary
schools involving busing, non-contiguous and satellite zon
ing, and similar techniques to eliminate each predomi
nantly black secondary school.
The Fourth Circuit has explicitly attempted to formulate
a legal principle to be applied in desegregation cases on
a national basis. The rule was announced as one neces
sitated by the problem of some cities “which have black
ghettos so large that integration of every school is an im
probable, if not an unattainable goal” (1267a-1268a). It is
particularly inappropriate and unecessary to attempt to
frame such a rule in a case such as this, for Charlotte has
no vast intractable desegregation problem as the Finger
Plan demonstrates.60 Desegregating the Charlotte schools
is not a difficult matter in the technical sense. The tech
nology to desegregate school systems of this size is readily
available. The problem is and has been a problem of
political and legal resistance to desegregation.61 The
60 Judge McMillan again found this to be so :
There is no ‘intractable remnant of segregation’ in this school
system. No part of the school system is cut off from the rest
of it, and there is no reasonable way to decide what remnant
shall be deemed intractable (Br. A18).
61 Judge McMillan thoughtfully addressed this point in his re
cent decision. (See section headed “ The Issue Is One of Constitu
tional Law—Not Politics, Br. A13-A14) :
Civil Rights are seldom threatened except by majorities.
One whose actions reflect accepted local opinion seldom need
61
United States Commission on Civil Rights has recently
made the point:
It is a mistake to think of the problems of deseg
regation and the extent that busing is required to
facilitate it solely in the context of the Nation’s rela
tively few giant urban centers such as Chicago, New
York, or Los Angeles. In most of our cities the tech
niques necessary to accomplish desegregation are rela
tively simple and create no hardships. The experience
in communities which have successfully desegregated
could easily be transferred to cities of greater size.
(Statement of the United States Commission on Civil
Rights Concerning the “ Statement by the President
on Elementary and Secondary School Desegregation” ,
April 12, 1970.)
The real thrust of the “reasonableness rule” as applied
to reject the elementary school plan is as Judge Sobeloff
wrote:
. . . no more than an abstract, unexplicated judgment
—a conclusion of the majority that, all things con
sidered, desegregation of this school system is not
worth the price. This is a conclusion neither we nor
school boards are permitted to make.
If the reasonableness of school desegregation as a goal is
to be litigated in every case by a subjective assessment of
to call upon the Constitution. It is axiomatic that persons
claiming constitutional protection are often, for the time being,
out of phase with the accepted “right” thinking of their local
community. If in such circumstances courts look to public
opinion or to political intervention by any other branch of the
government instead of to the more stable bulwarks of the
Constitution itself, we lose our government of laws and are
back to the government of man, unfettered by law, which our
forefathers sought to avoid (Br. A14).
62
whether the end justifies the cost involved, then the Brown
decision will in many places become a practical nullity.
As the National Education Association Brief Amicus
Curiae in support of the Petition for Certiorari in this case
has pointed out, the Fourth Circuit decision is paradoxical
in that while it “creates a wide ambit for the exercise of
discretion to limit desegregation, it severely, and NEA
believes unwarrantedly, restricts the traditional discretion
of the district court to frame a plan which will secure the
constitutional objective.” (NEA Brief Amicus Curiae, p.
21, note 19.)
The reasonableness rule is so vague, ill-defined, and, in
Judge Sobeloff’s phrase, “inherently ambiguous” (1289a)
that it is “highly susceptible to delaying tactics in the
courts” (1290a). The Charlotte-Mecklenburg board illus
trates this by the Cross-Petition for Certiorari which de
fends the reasonableness rule but argues that the Fourth
Circuit has misapplied its own rule in approving the junior
and senior high school desegregation plans ordered by the
district court. The point is that the opinion below contains
no standards by which to judge the reasonableness ques
tion. The specific application in Charlotte, in which the
plan for high schools and junior high schools was approved
by the court of appeals, yet the elementary plan was dis
approved, leaves the law in great uncertainty. The result
implies that it may be legal to deny a desegregated educa
tion to some black children and that the only requirement
is to offer constitutional protections to a reasonable num
ber of them. Such a doctrine is alien to the requirement
that the States shall not deny “to any person within their
jurisdiction, the equal protection of the laws” (emphasis
supplied). The reasonableness rule, if applied in this fash
ion, would conflict with the tradition of personal constitu
tional rights under the Fourteenth Amendment. (See Br.
A 13.)
63
Judge Butzner’s decision suggests that complete deseg
regation can be achieved only in “towns, small cities, and
rural areas” (1267a). The ruling implies that some in
definite number of elementary pupils will remain in pre
dominantly black and perhaps all-black schools, by its state
ment that “not every school in a unitary system need be
integrated” and that while boards “must use all reasonable
means to integrate the schools” sometimes “black residen
tial areas are so large that not all schools can be integrated
by using reasonable means.”62 This holding, by acknowl
edging that the black schools are the product of illegal
segregation practices holds that the wrong is without a
remedy.
We urge that this Court reject the notion that the con
stitutional rights of black citizens to equal protection of
the laws may be left without a remedy in the courts of the
United States. The concept that a state may violate the
constitutional rights of citizens because it is too expensive
to protect those rights is unworthy of our legal system
and a betrayal of our constitutional heritage. Judge Mc
Millan stated the correct rule: “ The alleged high cost of
desegregating schools (which the court does not find to be
a fact) would not be a valid legal argument against de
segregation, Griffin v. School Board [377 U.S. 218 (1964)] ;
United States v. Cook County, Illinois [404 F. 2d 1125 (7th
Cir. 1968)]” (710a). See also, Shapiro v. Thompson, 394
U.S. 618 (1969); cf. Baldwin v. New York, 26 L.ed 2d
437 (1970).
The court below suggests three measures which might be
taken instead of eliminating racially identifiable schools,
e.g., providing an integrated school for each child in later
62 There is perhaps some slight unclarity in the application of
the rule to this case, for the court fails to state categorically that
Charlotte’s black residential area is of such size that schools must
remain black.
64
years (as at the secondary school level), establishing special
integrated programs in the black schools, and permitting
black pupils the right of free transfer to leave the all-black
schools. None of these suggestions represents a satisfactory
substitute for the constitutional right to attend school in a
system where racial identification of the schools has been
removed and there are “just schools.” Green v. County
School Board of New Kent County, 391 U.S. 430, 442 (1968).
The idea of providing integration in later years is merely
a postponement of the right of desegregation and conflicts
with this Court’s determination that the dual system must
be abolished “now and hereafter.” Alexander v. Holmes
County Board of Education, 396 U.S. 19 (1969). The pro
vision of special integrated programs at black schools is
by its terms limited to peripheral activities not central to
the daily classroom experience of grade school children.
The provision of free transfers for blacks has proven an
unsuccessful method of desegregating the schools in Char-
lotte-Mecklenburg and it cannot be expected that any but
a few blacks would benefit from the proposed rule allowing
black students to transfer from majority black schools.
Monroe v. Board of Commissioners, 391 U.S. 450 (1968).
These three measures, while unobjectionable in themselves,
are simply no substitute for a desegregated school system.
The reasonableness rule threatens to undermine the
Brown decision. As Judge Sobeloff has suggested in dis
sent, the holding threatens to water down or temper the
duty to convert to a unitary system (1281a). Sixteen years
after Brown I there is no room for retreat from the prin
ciple that racial segregation is unconstitutional and must
be abolished. This Court has just recently rejected the
doctrine of “all deliberate speed” because of the long ex
perience of evasion and delay of the duty of desegregation.
Alexander v. Holmes County Board of Education, 396 U.S.
65
19 (1969); Dowell v. Board of Education of the Oklahoma
City Public Schools, 396 U.S. 269 (1969); Carter v. West
Feliciana Parish School Board, 396 U.S. 290 (1970). The
new and subjective reasonableness rule portends a new era
of litigation under a subjective standard sanctioning a
great deal of continuing racial segregation. It should not
be followed.
C. The Goal of Integrating Each School in Charlotte
Is Consistent With Federal Statutory and Consti
tutional Requirements.
The defendants have argued that provisions of the Civil
Eights Act of 1964 (Sections 401(b) and 407(a)(2), codi
fied as 42 U.S.C. §§2000c(b) and 2000c-6(a) (2)) forbid the
busing ordered by the district court. The court of appeals
rejected this reasoning stating that the argument “mis
reads the legislative history of the statute,” and that the
sections “are not limitations on the power of school hoards
or courts to remedy unconstitutional segregation” (1274a).
The same argument has been rejected on numerous occa
sions by other courts and we think the treatment of this
issue by the court below is sufficient to dispose of the ques
tion (1247a-1248a). Other courts have come to the same
conclusion in a number of cases: United States v. Jefferson
County Board of Education, 372 F.2d 836, 880-881 (5th Cir.
1966), aff’d en banc, 380 F.2d 385 (5th Cir. 1967), cert. den.
sub nom. Caddo Parish School Board v. United States, 389
U.S. 840 (1967) ; United States v. Board of Trustees of
Crosby Independent School District, 424 F.2d 625 (5th Cir.
1970); Tillman v. Board of Public Instruction of Volusia
County, No. 29180,------F.2d-------(5th Cir., April 23, 1970);
Andrews v. City of Monroe, No 29358 ------F .2d------- (6th
Cir., April 23, 1970) ; United States v. School District 151,
Cook County, III., 404 F.2d 1125, 1130 (7th Cir. 1968),
affirming 286 F. Supp. 786 (N.D. 111.); Keyes v. School
66
District No. One, Denver, 303 F. Supp. 289, 298 (D. Colo.
1969), stay granted,------F.2d — — (10th Cir. 1969), stay
vacated, 396 U.S. 1215 (1969) ; Moore v. Tangipahoa Parish
School Board, 304 F. Supp. 244, 250 (E.D. La. 1969).
The board’s construction of the Act would render it
an unconstitutional attempt by the Congress to authorize
the States to violate the Fourteenth Amendment by con
tinuing segregation. But, of course, “Congress may not
authorize the states to violate the Equal Protection Clause.”
Shapiro v. Thompson, 394 U.S. 618, 641 (1969); Katzen-
bach v. Morgan, 384 U.S. 641, 651, n. 10 (1966).
This case does not present the abstract question of
whether any racial balance of the schools is required. By
requiring the elimination of racially identifiable schools
the trial judge did not impose any strict requirement that
each school be a racial microcosm of the entire system.
Certainly there was no question of balance unrelated to
the requirement of eliminating unconstitutional racial
segregation caused by the State. The district judge did
not require any fixed racial ratios of pupils. He merely
adopted the racial ratio “as a starting guide, expressed a
willingness to accept a degree of modification, and departed
from it where circumstances required” (1287a). As he
recently wrote:
The November 7, 1969 order expressly contemplated
wide variations in permissible school population; and
the February 5, 1970 order approved plans for the
schools with pupil populations varying from 3% at
Bain Elementary to 41% at Cornelius. This is not
racial balance but racial diversity. The purpose is not
some fictitious “mix,” but the compliance of this school
system with the Constitution by eliminating the racial
characteristics of its schools (Br. A10).
67
Petitioners do not contend that the Constitution requires
that formerly segregated systems must invariably convert
to an arrangement in which every school has an approxi
mate ratio which reflects the system-wide ratio of the
races. The trial judge did not proceed on the theory that
any such balancing was required by the Constitution, al
though the board’s arguments continue to characterize the
holding in this manner. But petitioners do urge that it
is within the discretion of district courts to adopt as a
remedial goal some specific target to measure progress
toward eliminating racial identifiability of schools. United
States v. Montgomery County Board of Education, 395
TT.S. 225 (1969). The objective of desegregation plans,
to convert to a unitary system, might in some cases achieve
a balanced system where every school is a racial microcosm
of the entire system. Such racial balance plans may often
be feasible as recent experience in Greenville, South Caro
lina demonstrates, for example. Whittenberg v. School
District of Greenville County, C.A. No. 4396, D. S.C., Order
of Feb. 4, 1970. The Greenville plan produced a ratio of
about 20% black and 80% white in each school in a system
with 58,000 children in 105 schools; it included transporta
tion for pupils living more than 1% miles from school.
As we have said previously, this nation has more than
adequate technology to integrate the schools and afford a
quality education. It is generally possible to eliminate all
black schools by feasible desegregation plans. However, we
take no absolutist position which ignores the possibility
that there are exceptions to this rule. It is sufficient to de
cide this case to conclude that a feasible and workable plan
to eliminate “black schools” and “white schools” is at hand.
68
III.
The District Court Acted Within the Proper Limits
of Its Discretion by Ordering a Plan Consistent With
the Affirmative Duty to Desegregate the Schools and
the Objective of Preventing Resegregation.
A. The Finger Plan Promises to Establish a Unitary System.
The court-ordered desegregation plan meets the most
important test of Green v. County School Board of New
Kent County, 391 U.S. 430 (1968), in that the plan does
promise to actually dismantle the dual system and provide
a unitary system of schools. It is undisputed that the
plan will eliminate the principal characteristics of the dual
system—the all-black schools. This is the essential thing
that a plan must accompish in order to be an “ adequate”
plan under Brown v. Board of Education, 349 U.S. 294,
301 (1955), and Green, supra. Green calls for results in
accomplishing desegregation. The trial judge understood
this, stating:
The courts are concerned primarily not with the tech
niques of assigning students or controlling school
populations, but with whether those techniques get
rid of segregation of children in public schools. The
test is pragmatic, not theoretical. (582a)
Jndge McMillan was also cognizant of this Court’s ad
vice that no “universal answer” or “one plan will do the
job in every case.” Green, supra, 391 U.S. 430, 439. He
knew also that this Court had emphasized that “in this
field the way must always be left open for experimenta
tion.” United States v. Montgomery County Board of Edu
cation, 395 U.S. 225, 235 (1969). Thus Judge McMillan
undertook a detailed and conscientious study, aided by the
69
skilled and intelligent advice of an unusually capable ex
pert consultant working with the local school administra
tive staff, to devise “alternatives which may be shown as
feasible and more promising in their effectiveness.” Green,
supra, 391 U.S. at 439. The Finger Plan was the product
of this study.63
Where there is an available plan which will completely
desegregate the schools and the board opposes it, “ that
may indicate a lack of good faith; and at the least it places
a heavy burden upon the board to explain its preference
for an apparently less effective method.” Green, supra at
439. The board has never sustained the “heavy burden” of
opposing the Finger Plan. Indeed, the board has never
had any viable legal theory. The board’s arguments rest
largely on ideological positions against “racial balance”
which are premised on a denial of the duty to integrate
the schools and are in the teeth of the Green decision.
B. The Court Ordered Plan Is Feasible.
Petitioners agree with the dissenting judges below that
the “feasibility” of a desegregation plan is the proper
matter for inquiry. Green, supra, indicates that plans
must be shown to be “ feasible” and to “provide effective
relief” (391 U.S. at 439).
The district court made detailed findings of fact sup
porting the conclusion that the Finger Plan is feasible
and these findings are supported by substantial evidence.
It was error for the court of appeals to substitute its own
63 We do not contend that the Finger Plan is the only plan which
will satisfy constitutional requirements in Charlotte, nor did the
court below. In February, the court ordered the board to imple
ment the Finger Plan or any other plan it might devise which
would work (824a-825a). In August, the court specifically ap
proved two other plans which the board could employ if it chose
to do so and if the details were completed (Br. A33-34).
70
opinion that the plan required the board to engage in too
much increased bussing where there was no claim that any
of the district court’s findings on this issue were clearly
erroneous. Cf. Northcross v. Board of Education of Mem
phis, 397 U.S. 232, 235 (1970). As Judge Sobeloff has shown,
in dissent, “there is no genuine dispute” on the feasibility
of the plan; it is “ simple and quite efficient” (1284a). Here
are the facts.64
The Finger Plan requires transportation of pupils to ac
complish desegregation. The system now transports 23,600
pupils by school bus and another 5,000 by common carrier.65
The school board’s proposed plan would bus about 5,000 ad
ditional children,66 but still would not desegregate the
64 The facts discussed in this section covering the feasibility of
the Finger Plan are those that were in the record in the Court of
Appeals.
Many of these matters were re-litigated at the hearing in July,
1970. And the significant findings of March. 1970 were reaffirmed
Br A16-A26).
There were some new findings, all of which support our view
that the Finger Plan is feasible. 1 Funds are now available from
the State for the operational costs of transportation of all city
taxMren who live more than I1* miles from the school to which
thev ire assigned Br. A ll . 2 There are sufficient buses on hand
or available on lean so that m capital expenditures are required
to implement the Finger Plan, immediately (Br. A13-A20. A23.
Aft? 3 Pre-school dmdren are presently bused the greatest
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71
system, leaving 10 Negro schools.67 The Finger plan by
busing about 8,000 more children than the board’s proposal
(a total of about 13,000 more than at present)68 will elimi
nate racial identifiability from every school in the system.
The court of appeals affirmed the order as to the secondary
students (1,500 senior high and 2,500 junior high pupils),
but reversed the requirement as to elementary pupils (9,300
pupils, including 1,300 in schools to be simply rezoned, and
8,000 involved in cross busing between paired schools).69
The court carefully considered the busing from the stand
point of the children. The crucial finding is this:
The court finds that from the standpoint of distance
travelled, time en route and inconvenience, the children
bussed pursuant to the court order will not as a group
travel as far, nor will they experience more inconve
nience than the more than 28,000 children who are al
ready being transported at state expense. (1205a)
At present the average one-way trip in the system is over
15 miles requiring one hour and fourteen minutes.70 Eighty
percent of the buses in the system require more than one
hour for a one-way trip now.71 The average one-way trip
under the court plan “for elementary students is less than
seven miles, and would appear to require not over 35 min
67 The board plan would produce 9 elementary schools 83% to
100% black serving over half of the entire black elementary popula
tion (826a). In this plan Piedmont Junior High would be 90%
black and shifting toward 100% black; segregation would actually
increase by 1% more black pupils (830a).
68 See 1219a.
88 Ibid.
70 See 1204a, 1215a.
71 See 1204a.
72
utes at most, because no stops will be necessary between
schools.72
The court of appeals ruled that busing is “a permissible
tool for achieving integration” and stated that the factors
to be considered in appraising busing were “the age of the
pupils, the distance and time required for transportation,
the effect on traffic, and the cost in relation to the board’s
resources” (1272a). Only the cost factors seems to have
been used to support the court’s decision that the elementary
school plan involved too much busing. The age of the
pupils seems not to have been a decisive factor since busing
elementary pupils is an established tradition in Charlotte-
Mecklenburg with 10,441 elementary pupils already being
bused in 1969-70 (619a). There was no suggestion that the
times and distances were decisive since they compared most
favorably with the present practice. The average ele
mentary school busing distances under the Finger Plan
were shorter than the average trips now made and only a
little over half as long as the busing distances approved by
the Court of Appeals for the black high school students as
signed to Independence High School (1273a).
With respect to the costs of the Finger Plan, we believe
that this ground for disapproving the elementary plan is,
in Judge Winter’s phrase “insubstantial and untenable.”73
The court below states the cost issue in terms of the in
72 See 1215a. “ The average straight line mileage between the
elementary schools paired or grounded under the ‘cross-bussing’
plan is approximately 5% miles” (1201a). The trip mileage was
arrived at by the bus superintendent’s method of taking straight
line mileage and adding 25%.”
73 Indeed, Judge McMillan’s recent findings that no capital out
lay will be required to immediately implement the total court
ordered plan (Br. A23) would seem to dispose of the matter en
tirely.
73
creased percentage of pupils who will he bused. The court
recites that the additional elementary pupils who must be
bused represent an increase of 39% over all pupils pres
ently bused requiring a 32% increase in the bus fleet
(1276a). The court also stated that the added secondary
busing which was approved brought the total percentage
increases to “pupils 56%, and buses 49%” (ibid.). These
were the facts recited to support the conclusion that the
board “ should not be required to undertake such extensive
additional busing to discharge its obligation to create a
unitary school system” (1276a).
The ruling below does not contain any discussion of the
costs of the Finger Plan busing “in relation to the board’s
resources” but only a discussion of the cost in relation to
present expenditures for busing. As we have stated else
where in this brief, we do on any account accept the premise
that such a monetary consideration should be decisive of
important individual rights. All the more does it seem
clear that the prior level of expenditures in operating an
unconstitutional, segregated system should not be decisive
in defining what constitutes a nonsegregated unitary sys
tem. But in any event, there is no foundation in this record
for a conclusion that the board lacks sufficient resources
to implement the Finger Plan. The board’s resources are
much broader than local funds because in North Carolina
transportation costs for school children are largely met by
the state board of education, which bears most of the
operating costs and also replaces worn out buses after local
authorities make the initial purchase. The capital outlay
required for the 90 buses needed in the elementary school
phase of the Finger Plan will be about $5,400 per bus or
$486,000, an investment which will buy not only vehicles
with useful lives of up to 15 years, but also the right to
have them perpetually replaced at no further cost to the
74
local board.74 * The State will bear the operational cost
of the 90 buses which was found to be $186,000 annually.
When these expenditures are considered in the context of
the local education budget figures, which exceeded 57 mil
lion dollars in 1969-70,76 and the 3.5 billion dollar state
education budget, they are so small as to be insignificant.
Moreover, the discussion of these costs ignore a vital
fact. The State Board of Education, a defendant in this
case, already has in its possession a sufficient number of
buses to implement the Finger Plan. The case thus in
volves merely a decision about whether existing state
resources—buses already owned by the defendant State
Board of Education—will be used to integrate the Charlotte
schools. Judge McMillan found that the State Board of
Education had “approximately 400 brand new school busses
and 375 used busses in storage, awaiting orders from school
boards” (1219a).76 As Judge McMillan put it:
The problem is not one of availability of busses but
of unwillingness of Mecklenburg to buy them and of
the state to furnish or make them available until final
decision of this case (1220a).
Since the State Board of Education already owns suffi
cient used busses in storage to implement the Finger Plan
74 And, of course, none of these vehicles need be bought imme
diately.
“No capital outlay will be needed to supply buses for the
1970-71 school year. The state is ready and willing to lend
the few busses the board may need; replacements can be bought
after actual need has been determined under operating con
ditions” (Br. A23).
76 The local budget is approximately $66,000,000 for the 1970-71
school year (Br. A21, A23).
76 The facts as to availability of busses in July, 1970 are found
at Br. A18-A20.
75
there really is no legitimate issue in this case about the
financial burden of the plan. Even if the local board had
insufficient money to pay for these busses (which is not
true), desegregation may not be defeated on the basis
that one agency of the state does not have sufficient funds
to reimburse another state agency which has an equal duty
to aid in desegregation of the public schools. The appro
priate principle was stated in Cooper v. Aaron, 358 U.S. 1,
19 (1958), where the Court unanimously declared that:
State support of segregated schools through any ar
rangement, management, funds or property cannot be
squared with the Amendment’s command that no state
shall deny to any person within its jurisdiction the
equal protection of the laws.
It would plainly be within the power of the district court,
if it proved necessary, to require the State Board of Educa
tion to loan—-or even grant—the necessary buses now in
storage to the Charlotte-Mecklenburg board. Cf. Griffin v.
County School Board, 377 U.S. 218 (1964), where the Court
required that money be levied and spent to redress con
stitutional rights.
C. The Finger Plan Utilizes Appropriate Techniques
to Achieve Pupil Desegregation.
We believe that the court below was correct in rejecting
the board’s objections to a variety of desegregation tech
niques used in the court ordered plan, such as busing to
promote integration, creating satellite school zones in non
contiguous areas, and creating paired or clustered schools
with altered grade structures. The court below pointed to
the direction in Brown II about using “practical flexibility”
in shaping remedies, as support for use of the satellite zone
technique (1247a). Brown v. Board of Education, 349 U.S.
76
294, 300 (1955). The court also noted that the pairing and
clustering of schools was approved in Green v. Cownty
School Bd. of New Kent County, 391 U.S. 430, 442, n. 6
(1968), and Hall v. St. Helena Parish School Bd., 417 F.2d
801, 809 ( 5th Cir. 1969), cert, denied, 396 U.S. 904 (1969).
There are a great many other decisions in which courts
have required use of pairing and clustering techniques,
sometimes necessitating transportation, in order to ac
complish desegregation.77 Adoption of the hoard’s argu
ment would require repudiation of techniques widely em
ployed to accomplish the dismantling of segregated systems.
School bussing is an ordinary tool of educational ad
ministration which may properly be employed to desegre
77 Cases where courts have employed the pairing or clustering
technique include: Nesbit v. Statesville City Board of Education,
418 F.2d 1040, 1042 (4th Cir. 1969) (en banc) ; Brunson v. Board
of Trustees of School District No. 1, No. 14571, ------- F.2d ------
(4th Cir., June 5, 1970) ; Green v. School Board of Roanoke, No.
14335,------ F .2 d -------- (4th Cir., June 17, 1970) ; Brewer v. School
Board of Norfolk, No. 14544, ------ F.2d -------- (4th Cir., June 22,
1970), cert. den. 38 U.S.L. Week 3522; Kail v. St. Helena Parish
School Board, 424 F.2d 320 (5th Cir. 1970) ; United States v.
Board of Trustees of Crosby Independent School District, 424 F.2d
625 (5th Cir. 1970) ; Mannings v. Board of Public Instruction of
Hillsbrough County, No. 28643, —— F .2 d ------ (5th Cir., May 11,
1970); Davis v. Board of School Commissioners of Mobile County,
No. 29332,------ F .2 d -------- (5th Cir., June 5, 1970), cert, pending
on other issues, No. 436, O.T. 1970; Harvest v. Board of Public
Instruction of Manatee County, No. 29425, -—— F.2d ------ (5th
Cir., June 26, 1970) ; Bradley v. Board of Public Instruction of
Pinellas County, No. 28639, ------ F.2d ------ (5th Cir., July 1,
1970) ; Tillman v. Board of Public Instruction of Volusia County,
No. 29180,------ F .2d -------- (5th Cir., July 21, 1970) ; United States
v. School District 151, Cook County, 111., 404 F.2d 1125 (7th Cir,
1968), affirming 286 F.Supp. 786 (N.D. 111.) ; Kemp v. Beasley,
423 F.2d 851, 856 (8th Cir. 1970); and Jackson v. Marvell School
District No. 22, 425 F.2d 211 (8th Cir. 1970).
77
gate the schools.78 Generalized objections to school busing
to promote desegregation do not sustain the board’s bur
den. Obviously some transportation is necessary in the
system. It is plainly not a valid objection to busing that it
is used to promote integration, for this is the constitutional
imperative. The hoard has no satisfactory theory to dif
ferentiate that busing which is admittedly necessary from
that which it finds objectionable, i.e., to legally differenti
ate between “good” and “bad” busing.
The board attacks arrangements which involve transport
ing children from their zone of residence to a non-adjacent
zone. But pupils have no inherent right to attend any par
ticular school because of their place of residence. A child’s
“own neighborhood school zone” does not exist in the order
of natural phenomena. It is the product of school board
decision, i.e., state action. Attendance areas and the grades
served by particular buildings are always subject to change
and often are changed. There is no good reason not to use
available transportation facilities to desegregate the
schools, or to limit that transportation to an artificial
“adjacent” zone. Segregated schools need not inevitably
follow segregated housing patterns. There is nothing in
exorable about such segregation; there is merely the ap
pearance of inevitabilty. The general case for busing to
promote integration is well stated in “On The Matter of
78 Busing to promote desegregation has been approved in a num
ber of cases including: Kemp v. Beasley, 423 F.2d 851 (8th Cir.
1970) ( “bussing is only one possible tool in the implementation of
unitary schools” ; per Blackmun, J . ) ; Clark v. Board of Education
of Little Bock, No. 19795,------ F .2 d ------- (8th Cir, May 13, 1970),
cert, pending No. 409 O.T. 1970; United States v. Board of Trustees
of Crosby Independent School District, supra; Harvest v. Board
of Public Instruction of Manatee County, supra; Tillman v. Board
of Public Instruction of Volusia County, supra; and United States
v. School District No. 151, Cook County, 111., supra.
78
Bussing: A Staff Memorandum from the Center For Urban
Education” (February 1970) :
Good education, as well as the moral imperatives of a
pluralistic society, demands desegregation of the
schools. How can school desegregation be accomplished
in cities and suburbs with long-established racial hous
ing patterns? What method can circumvent the hard
fact that segregated neighborhoods foster segregated
neighborhood schools? One tried and tested means is
the transportation of children out of their immediate
neighborhoods by school bus.
Riding the yellow school bus is as much a symbol of
American education in 1970 as the little red schoolhouse
was in 1900. And, until recently, it had conveyed no
emotional overtones other than nostalgia for lost youth.
In a country as large as ours, neighborhood schools
within walking distance are a relatively recent luxury
of the cities.
Most children take a bus or car to school. Children
in rural areas ride to central schools. Children in sub
urbia queue up on the corner for the bus that their par
ents at open school board meetings insist is theirs by
right. Private and parochial school pupils board school
busses and ride often for half an hour to their destina
tion. In large cities children travel public subways and
busses, sometimes more than an hour each way, to
special schools of music and art, performing arts, or
science. And parents of handicapped children have
maintained steady pressures on state legislatures to
provide state-supported bussing to schools filling spe
cial educational needs. More recently, southern parents
have rented their own busses to transport white chil
dren to private, segregated schools. In none of these
cases have parents complained of harm to their chil
dren by the bus ride, or of the expense of the busses.
79
Transferring children from one school to another
is literally a means to an end—the end of the bus ride
should be better schooling. In cases where the transfer
becomes an end in itself, the results are predictably
disappointing. Other things being equal, a child from
a racially isolated neighborhood will find an integrated
school a better environment for learning than a school
in which his classmates are equally isolated. But there
is no magic in a bus ride which offsets poor planning,
a teacher’s dislike or lack of respect for a child, or a
disregard of emergency procedures.
The poverty of the board’s ideas in its arguments against
busing to integrate schools is emphasized by the facts with
respect to the current use of busing in Mecklenburg. Many
new white schools are located so that few pupils can walk
to schools. The walk-in school is basically a phenomenon
of the black neighborhoods. Of 17,000 children in black
schools, only about 541 are now transported to school
(1204a). The white schools have the opposite pattern. For
example, in six white high schools and two junior high
schools with a total of 12,184 pupils, only 96 students live
within the mile and a half walking distance (1203a). Some
12,088 of these pupils are eligible for transportation and
5,349 of them ride the school buses (id.). Many pupils use
private transportation.
The more one studies the detailed facts with respect to
school bus transportation in Charlotte, and the data in the
record with respect to such transportation in North Caro
lina generally, the more it seems clear that the only reason
not to use buses to integrate the schools is to keep them
segregated.
Judge Sobeloff found the majority’s conclusion with re
spect to the elementary plan so inconsistent with the deci
80
sion approving the use of busing, satellite zoning, and
similar techniques for secondary students that he said the
“decision totally baffles me” (1289a). The major distinction
between the busing which is approved and that which is
rejected is that the secondary plans primarily increased
busing of black students to formerly white schools while
the elementary plan requires busing of white children as
well as Negroes. We are unlikely to ever end the dual
school systems until it becomes accepted that the incon
veniences incident to reorganizations of the school systems
will not be borne by black pupils alone but will be shared
by the white community. Equal protection does require
that desegregation plans be generally equitable and not
place the entire burden on blacks. Judge McMillan an
nounced at the time he approved the interim plan for
1969-70 that he would not again approve a plan for one-way
busing (590a-591a). He wrote that:
If, as the school superintendent testified, none of the
modern, faculty-integrated, expensive, “ equal” black
schools in the system are suitable for desegregation
now, steps can and should be taken to change that
condition before the fall of 1970. Unsuitability or
inadequacy of a 1970 “black” school to educate 1970
white pupils will not be considered by the court in
passing upon plans for 1970 desegregation. (591a)
D. The Neighborhood. School Theory Cannot Be Justified
on the Basis of History and Tradition Because It Was
Widely Disregarded in Order to Promote Racial Seg
regation.
Much of the argument about preserving the neighbor
hood school and against busing is simply a fake—a spuri
ous attempt to suggest that there is a great traditional
right that pupils have always had to go on foot to a nearby
81
school located conveniently to their homes. That concept
has little reality in a state like North Carolina where 54.9
percent of the pupils ride a school bus every day an aver
age trip of 12 miles one way (1199a). The real tradition
of North Carolina schools, and other states in the Fourth
Circuit, is a tradition not of neighborhood schools, but of
separate “white” and “Negro” schools, whether or not the
neighborhoods were separate.
It has not been so very many years since the Fourth
Circuit solemnly assembled to hear school men attempt to
justify busing Negro children not only out of their neigh
borhoods but out of their counties to segregated all-black
schools. These cases give one an interesting perspective
about the arguments current now. The following are some
busing arrangements revealed in cases in the Fourth
Circuit:
1. Griffin v. Board of Education of Yancey County, 186
F. Supp. 511 (W.D. N.C. 1960). The court found that
Negro pupils were being bused every day an 80 mile round
trip from Burnsville to Asheville. While the case was pend
ing without any relief, the board finally built a school for
the 25 Negroes in Yancey County with a changed grade
structure: to wit, all 12 grades were taught in two rooms
for 25 pupils. Judge Warlick’s opinion notes that bus trans
portation was used extensively throughout the State.
2. School Board of Warren County, Va. v. Kilby, 259
F.2d 497 (4th Cir. 1958). The school board appealed an
order requiring desegregation where some Negro pupils
were bused out of the county 25 miles each way and others
were bused 50 miles each way to a boarding school where
they were required to remain all week and return home on
weekends. We repeat: the school board appealed seeking
to preserve this arrangement.
82
3. Goins v. County School Board of Grayson County,
Va., 186 F. Supp. 753 (W.D. Va. 1960), stay denied, 282
F.2d 343 (4th Cir. 1960). Negro pupils bused 30-40 miles
out of their county.
4. Corbin v. County School Board of Pulaski County,
Va., 177 F.2d 924 (4th Cir. 1949) (bus travels out of county
60 miles per day). Eleven years later, see Crisp v. County
School Board of Pulaski County, Va. (W.D. Va. 1960), 5
Eace Eel. L. Eep. 721.
Similar arrangements involving out of county assign
ments were condemned in Buckner v. County School Board
of Greene County, Va., 332 F.2d 452 (4th Cir. 1964), and
Walker v. County School Board of Floyd County, Va.
(W.D. Va. 1960), 5 Eace Eel. L. Eep. 714.
The conception that pupils were entitled to go to their
nearest school got short-shrift in the context of the segre
gated system. Dual overlapping attendance areas within
which blacks were often denied access to nearby white
facilities were common, Jones v. School Board of Alex
andria, Va., 278 F.2d 72, 76 (4th Cir. 1960). Also common
were “ satellite zones” and non-contiguous attendance zones.
See, e.g., Haney v. County Board of Education of Sevier
County, Ark., 410 F.2d 920 (8th Cir. 1969). See, generally,
the excellent monograph commissioned by the U.S. Office
of Education, Weinberg, “Eace and Place, A Legal History
of the Neighborhood School” (U.S. Govt. Printing Office,
1967). Weinberg recalls the non-contiguous satellite zone
in the Arlington County, Virginia case called the “North-
Hoffman Boston Zone” which was an all-black satellite
zone located a 20 minute bus ride from the school:
In much-litigated Arlington County, Va., 30 Negro
children applied under the State pupil placement law
for transfer to a white school. The school board re
83
jected 26 of the 30 applications, claiming it based its
decision on five criteria: “attendance area, overcrowd
ing at [white] Washington and Lee High School, aca
demic accomplishment, psychological problems, and
adaptability.” 26 Seven of the students had applied for
transfers on the ground that three white schools were
nearer to their home. As the court explained: “How
ever, the school authorities had other factors to con
sider, such as the adoption of presently established
school bus routes, walking distances and the crossing
of highways, as well as that [all-Negro] Hoffman-
Boston was but a 20 minute bus ride for these pupils.” 27
26 Thompson v. County School Board of Arlington County,
166 F. Supp. 529, 532 (1958).
27 Ibid, at 533.
Of course, current practices in Charlotte-Mecklenburg
sanction deviations from the neighborhood school ideal to
promote segregation. The district judge disapproved a
board request for a modification of the 1969-70 plan saying,
“As this court pointed out before, bus transportation has
too long been used as a tool to promote segregation. The
year 1969 is too late in the day to start using this tool for
that purpose in new situations” (595a). The free transfer
plan now in effect allowed 1,200 white students to transfer
out of their neighborhood schools in black neighborhoods
in 1968-69 (453a).
Judge McMillan was right when he ruled: “The neighbor
hood school theory has no standing to override the Consti
tution” (300 F. Supp. at 1369; 306a).
E. The Finger Plan Is Necessary to Accomplish the
Constitutional Objective.
If there was some proposal in the record which would be
equally effective or more effective in eliminating segrega
84
tion, there would be room for discussion about which plan
is most desirable. Judge McMillan demonstrated that he
was prepared to accept school board alternatives which
produced equal results in accomplishing desegregation. He
preferred such “home-grown products” even where he be
lieved the expert consultant’s proposals were more efficient.
But an essential finding which supports the Finger Plan
for elementary schools is Judge McMillan’s conclusion that
it was necessary to adopt a plan of this type to accomplish
the result of desegregation. The court found:
Both Dr. Finger and the school hoard staff appear
to have agreed, and the court finds as a fact, that for
the present at least, there is no way to desegregate
the all-black schools in Northwest Charlotte without
providing (or continuing to provide) bus or other
transportation for thousands of children. All plans
and all variations of plans considered for this purpose
lead in one fashion or another to that conclusion.
(1208a)
Judge Sobeloff’s dissenting opinion noted that “ The
point has been perceived by the counsel for the board, who
have candidly informed us that if the job must be done
then the Finger plan is the way to do it” (1282a).
F. The Court of Appeals Applied an Improper Standard
for Appellate Review of the District Court’s Discre
tionary Determination in Formulating Equitable Relief.
Where the constitutional objective of integration is ac
complished a district court’s judgments on issues relating
to the feasibility of particular local arrangements should
not be upset except for plain abuse of discretion. There is,
of course, no “discretion” to keep schools segregated. But
there must be a substantial area of discretion for trial
85
judges to make practical judgments about the feasibility
of local school desegregation arrangements.
The Finger elementary plan ought to be upheld if the
case is governed by the traditional rule for appellate review
of a chancellor’s decree in equity. The prevailing rule is
that equitable discretion in framing remedies is necessarily
broad and that a strong showing of abuse of discretion
must be made to reverse such a decree. United States v.
W. T. Grant Co., 345 U.S. 629 (1953); Continental Illinois
Nat. Bank <& Trust Co. v. Chicago R. I. <& P. R. Co., 294 U.S.
648, 677 (1935); United States v. Corrick, 298 U.S. 435
(1936); Rogers v. Hill, 289 U.S. 582 (1933). In order to
set aside the equity decree the appellant “must demonstrate
that there was no reasonable basis for the district judge’s
decision,” and thus that the remedy is so lacking in ra
tionality as to amount to an abuse of discretion. United
States v. W. T. Grant Co., supra, 345 U.S. at 634.
This Court’s decisions in school cases have relied on
traditional equitable principles on remedial issues. In the
second Brown decision the Court invoked the tradition of
equity which was said to be “characterized by a practical
flexibility in shaping its remedies and by a facility for
reconciling public and private needs” (349 U.S. at 300).
The Brown II Court cited with approval a passage in
Alexander v. Hillman, 296 U.S. 222, 239 (1935), stating.
Treating their established forms as flexible, courts of
equity may suit proceedings and remedies to the cir
cumstances of cases and formulate them appropriately
to safeguard, conveniently to adjudge and properly to
enforce substantial rights of all the parties before
them.
In Griffin v. School Board, 377 U.S. 218, 232-233 (1964),
the Court said that “ relief needs to be quick and effective,”
86
and that a federal court could require a county to levy
taxes if necessary to maintain a non-discriminatory public
school system. Green v. County School Board, 391 U.S.
430, 439 (1968), emphasized that in formulating a remedy
district courts were to assess “ the circumstances present
and the options available in each instance.” In United
States v. Montgomery County Board of Education, 395 U.S.
225, 235 (1969), the Court emphasized that “in this field the
way must always be left open for experimentation.” In
the Montgomery County case the Court reversed a court
of appeals decision which labeled the district judge’s order
too rigid and inflexible in favor of the trial court’s “more
specific and expeditious order.”
There is nothing in this development of school desegrega
tion law since Brown which warrants the departure an
nounced by the plurality opinion of Judge Butzner for the
court below from the traditional rule of appellate review.
This new test of “reasonableness” enables the reviewing
court to set aside the trial court’s discretion on the ground
that the appeals court majority would prefer another
mode of relief albeit less effective. This runs exactly
counter to the spirit of Green which declares that the
result—actual desegregation—is the imperative thing and
that the methodology of desegregation plans is secondary.
It also runs counter to the philosophy of Alexander,
Carter and Dowell, swpra, which place a premium on the
immediate implementation of constitutional rights pending
the completion of litigation. The reasonableness test allows
so much scope for unpredictable reversals of those decrees
which accomplish actual desegregation as to substantially
nullify Alexander. The reasonableness test signals the
need for trial courts to adopt a “go-slow” cautious ap
proach. Although busing is approved in principle in the
opinion below, the result makes it clear that busing must be
87
limited. The standard of “reasonableness” is broad and
vague, but it does not allow broad discretion for trial courts
to order busing. Any plan found objectionable by a school
board can colorably be said to be “unreasonable” justifying
at least a stay pending* appeal. The “reasonableness” test
is “deliberate speed” in a new guise.
CONCLUSION
For the foregoing reasons, it is respectfully submitted
that the judgment of the court of appeals should be re
versed and the judgment of the district court reinstated
with directions that the desegregation of the schools pro
ceed forthwith.
Respectfully submitted,
J ack Gbeenbebg
J am es M. N abbit , III
NORMAN J . C h ACHKIN
10 Columbus Circle
New York, N. Y. 10019
J . L eV o nne C h am bebs
A dam S te in
C h am bebs , S t e in , F eegtjson & L a n n in g
216 West Tenth Street
Charlotte, N. C. 28202
C. 0. P eabson
2031/2 East Chapel Hill Street
Durham, N. C. 27702
A tto rn ey s fo r P etition ers
APPENDIX
Br. A1
Memorandum of Decision and Order,
dated August 3, 1970
I.
Summary
Pursuant to the mandates of the Supreme Court of the
United States and the Fourth Circuit Court of Appeals,
further hearings (eight days of them) have been conducted
July 15-24, 1970, regarding- methods for desegregation of
the public schools of Charlotte and Mecklenburg County,
North Carolina, and the known plans for desegregation of
the elementary schools have been reconsidered.
The Court again finds as a fact that compliance with all
parts of the desegregation order for senior high, junior
high and elementary schools now in effect will require, at
the most, transportation of 13,300 children on 138 busses.
The elementary portion of the order will require, at the
most, transporting 9,300 children on 90 buses. The de
fendants already own or control at least 80 safely operable
busses not in use on regular routes, and they expect early
delivery of 28 more new ones. Such buses as may be needed
beyond these 108 can be borrowed for a year without cost
from the State.
No capital outlay will be required this year to comply
with the court’s order. The School Board and the county
government have ample surplus and other funds on hand
to replace with new busses as many of the used buses as
1970-71 experience may show they actually need. If they
have to buy 120 new ones, at $5,500 each, the cost will
approach $660,000, which is less than the cost of two days’
operation of the schools.
Br. A2
Regardless of any order of this court, all children as
signed to any school more than l x/2 miles from home are,
under state law and regulation, now entitled to bus
transport.
The 5/4 School Board majority have not obeyed the
orders of the Circuit Court to prepare a new plan for
elementary schools in place of their rejected plan. The
court ordered plan for all schools has been in effect since
June 29, 1970 under the mandate of the Supreme Court.
The School Board has not used all reasonable means to
desegregate the elementary schools.
At least three reasonable plans are available to the
Board: (1) the court ordered (Finger) plan; (2) the 4/5
minority Board (“Watkins” ) plan; and (3) an earlier draft
of the Finger plan.
The Circuit Court directed this court to have a plan in
effect for the opening of schools in the fall, and the
Supreme Court on June 29, 1970 put this court’s February
5 order back into effect pending these proceedings. The
court ordered (Finger) plan is the only complete plan be
fore the court, and it is a reasonable plan. The Board is
herein directed to put the court ordered plan (with au
thorized modifications, if desired) into effect with the
opening of school in the fall, unless they exercise 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 these three plus excerpts from
the HEW plan, which complies with the directives in the
February 5 order. The Board is directed to notify the
court in writing by noon on August 7, 1970, as to the course
of action which it has voted to follow.
Board plans for desegregation of the faculties of all
schools and of the student bodies of the senior high schools
and the junior high schools are approved.
Memorandum of Decision and Order, dated August 3, 1970
Br. A3
II.
B kief H istory of P roceedings.
On April 23, 1969, after lengthy hearings and research,
an order was entered that the defendants submit a plan
for the desegregation of the schools of Charlotte and Meck
lenburg County, North Carolina, to be predominantly
effective in the fall of 1969, and to be completed by the
fall of 1970. Among other things the court found that
under North Carolina law there is no “freedom of choice”
to attend any school; that the Board of Education has the
total control over the assignment of students to schools;
and that residence has never created a right to attend a
particular school. It was further found that all the black
and predominantly black schools of this school system are
illegally segregated. The November 7, 1969 opinion con
tained detailed guidelines for desegregating this particular
group of schools, and included the following findings:
“The black schools are for the most part in black
residential areas. However, that does not make their
segregation constitutionally benign. In previous opin
ions the facts respecting their locations, their com
trolled size and their population have already been
found. Briefly summarized, these facts are that the
present location of white schools in white areas and
of black schools in black areas is the result of a varied
group of elements of public and private action, all
deriving their basic strength originally from public
law or state or local governmental action. These ele
ments include among others the legal separation of
the races in schools, school busses, public accommoda
tions and housing; racial restrictions in deeds to land;
Memorandum of Decision and Order, dated August 3, 1970
Br. A4
zoning ordinances; city planning; urban renewal;
location of public low rent housing; and the actions
of the present School Board and others, before and
since 1954, in locating and controlling the capacity of
schools so that there would usually be black schools
handy to black neighborhoods and white schools for
white neighborhoods. There is so much state action
embedded in and shaping these events that the result
ing segregation is not innocent or “ de fa c to ,” and the
resulting schools are not “unitary” or “desegregated.”
Segregation of black children into black schools is not
because of residential patterns, but because of assignment
and other policies of the School Board, including the call
upon segregated housing and school site selection to lend
respectability to those policies.
(There is attached hereto an 18-page exhibit listing ap
proximately 65 sections of the General Statutes of North
Carolina and 2 sections of its Constitution under which
the segregation of the black race in North Carolina has
been the policy of our Constitution and the letter of our
statutes for many years. Many of these provisions were
repealed by the 1969 General Assembly, but most of them
were still on the books when the April 23, 1969 opinion
was written.) [The exhibit referred to is not printed here
in.]
A consultant, Dr. John A. Finger, Jr., was appointed by
the court in December, 1969, to draw a desegregation plan
after it became apparent that the defendants had no such
plan and had not resolved to prepare one which would de
segregate the schools. The development of the plan is de
scribed in the order of February 5, 1970, the supplemental
historical memorandum of March 21, 1970, and the supple
Memorandum of Decision and Order, dated August 3, 1970
Br. A5
mental findings of fact dated March 21,1970. Briefly stated,
the court-appointed consultant prepared plans for the de
segregation of all the black schools. Faced with the immi
nent existence of valid desegregation plans, the Board then
went to work and prepared some plans of its own.
This court approved the Board’s plan for senior high
schools (with one minor change) ; it gave the School Board
a choice of several plans or procedures as to junior high
schools; and it disapproved the Board’s plan for elementary
schools, because it left half the black children in black
schools, and ordered into effect one of the plans designed
by the consultant, Dr. Finger, for desegregation of the
elementary schools.
The Circuit Court of Appeals granted a stay as to the
elementary schools and the Supreme Court left the stay in
effect. The district court then, in the order of March 25,
1970, postponed until September 1, 1970, the implementa
tion of the plans for junior and senior high schools because
the stays issued by the Circuit Court and the Supreme
Court had taken off the pressure for mid-year 1969-70 de
segregation.
Before the appeal to the Fourth Circuit was concluded,
the defendants, including the Governor and the State Board
of Education, voiced strenuous opposition to compliance
with the court order, basing their objections in part upon
parts of the 1964 Civil Rights Law and upon North Caro
lina’s “anti-bussing law” which had been passed by the
General Assembly a few weeks after this court’s original
April 23, 1969 order. A three-judge court was convened
and has met and has decided that the “anti-bussing law” in
pertinent part is unconstitutional, and eventually issued
appropriate injunctions.
Memorandum of Decision and Order, dated August 3, 1970
Br. A6
The Circuit Court of Appeals then issued its opinion on
May 26, 1970. It affirmed the principal findings of fact and
legal conclusions of the district court, including the finding
that the segregated residential housing upon which the de
fendants relied for defense was caused by forces deriving
their basic strength from governmental action. It (1) ap
proved the desegregation of faculties, (2) approved the
plans for desegregation of junior high schools, and (3)
approved the plans for desegregation of senior high schools
all as ordered by the district court. It expressly disapproved
the Board’s plan for elementary schools because it left half
the black elementary children in “black” schools, and it
remanded the matter for the school board to prepare a new
plan using all reasonable means of desegregation, and for
the district court to reconsider the assignment of elementary
pupils under a theory of “ reasonableness” . The district
court was directed to put a plan into effect for the fall
term 1970.
The Supreme Court on June 29, 1970, entered an order
reading in pertinent part as follows:
“ . . . The petition for a writ of certiorari is granted,
provided that the judgment of the Court of Appeals is
left undisturbed insofar as it remands the case to the
district court for further proceedings, which further
proceedings are authorized, and the district court’s
judgment is reinstated and shall remain in effect pend
ing those proceedings.”
At the July 15-July 24 hearings the defendants an
nounced that:
(a) Faculties have been assigned for all schools ac
cording to the February 5, 1970 order, so that when
Memorandum of Decision and Order, dated August 3, 1970
Br. A7
schools open in September all faculties will have about
75% white teachers and about 25% black teachers;
(b) The senior high schools will be desegregated this
fall in accordance with the plan previously approved
by the district court and by the Circuit Court;
(c) The junior high schools will be desegregated
this fall in accordance with the plan previously ap
proved by the district court and by the Circuit Court;
and
(d) As to elementary schools the majority of the
defendants have no official plan and no plan of action
for desegregation except the plan, previously rejected
by both district court and the Circuit Court, which
would leave half the black elementary children in segre
gated schools.
Since the school board has refused to obey the Circuit
Court’s instructions to file a new elementary plan by June
30,1970, it might, were this an ordinary case, have no stand
ing to be heard further. However, the case affects numer
ous people who, though not Board members, are entitled to
have the matter further considered as fully and fairly as
possible.
This court has tried to follow faithfully the orders of the
Supreme Court and the Circuit Court. This presents some
unique problems; the Circuit Court’s “reasonableness”
order is vague; the Supreme Court’s order allowing
certiorari is cryptic, and raises and leaves unanswered
several major questions; neither order is a clear guide for
this court. However, this court believes that, regardless of
the Board’s continued default, this court’s duty is to re
consider the elementary desegregation problem in view of
Memorandum of Decision and Order, dated August 3, 1970
Br. A8
the questions whether the methods previously required by
the court are reasonable and whether the Board has ex
hausted all reasonable methods available to it.
III.
T h e E x t e n t of C o n tin u ed S egbegation— A nd I ts R esu lts .
The schools are still segregated as described in this
court’s memorandum opinion of November 7, 1969. Over
9,000 black children attend schools that are 100% black.
Two-thirds (16,000) of the black children still attend racially
identifiable “black” schools. Fifty-seven schools are “white”
and twenty-five are predominantly “black.”
The tangible results of segregation continue to be ap
parent from the 1969-70 Stanford Achievement Tests in
Paragraph Meaning and Arithmetic, given during the sixth
month of school, for grades 3, 6, 8 and 10. In “black” schools
third graders perform at first grade or early second grade
levels, while their contemporaries at “white” schools per
form at levels generally from one to two grades higher.
Sixth graders in the black schools (Double Oaks and Bruns
Avenue, for example) perform at third grade levels while
their contemporaries at Olde Providence, Pinewood, Lans-
downe and Myers Park perform at seventh or eighth grade
levels. In the eighth grade we see Piedmont Junior High
students reading at early fifth grade levels while their
contemporaries at McClintock and Alexander Graham read
at early ninth grade levels. In the tenth grade, on a scale
where the average is 50, the black high school, West Char
lotte, had English scores of 38.30 and mathematics scores
of 35.89; Harding, nearly half black, had scores of 42.89
and 40.76; while the obviously “white” schools had scores
ranging from 43.2 to 52.2. At First Ward Elementary
Memorandum of Decision and Order, dated August 3, 1970
Br. A9
School only two black third graders out of 119 tested scored
as high as third grade, while 100 were still at first grade
level of proficiency as to paragraph meaning.
Of factors affecting educational progress of black chil
dren, segregation appears to be the fa c to r under control o f
the sta te which still constitutes the greatest deterrent to
achievement.
Memorandum of Decision and Order, dated August 3, 1970
IV.
T he L egal B asis F or D esegregation-.
A. S egrega ted public schools are unconstitutional.—De
segregation is based on the Constitution as interpreted in
B row n v. B oard o f Education , 347 U. S. 483 (1954), where
the Supreme Court said:
“ ‘Segregation of white and colored children in public
schools has a detrimental effect upon the colored chil
dren. The impact is greater when it has the sanction
of the law; for the policy of separating the races is
usually interpreted as denoting the inferiority of the
Negro group. A sense of inferiority affects the motiva
tion of a child to learn. S egregation with the sanction
o f law, th ere fo re , has a tendency to [retard\ the edu
cational and, m ental developm ent o f N egro children
and to deprive them o f som e o f the benefits they would
rece ive in a racial\ly] in tegrated school system .’
* * *
“We conclude that in the field of public education the
doctrine of ‘separate but equal’ has no place. S eparate
educational facilities are inherently unequal...............”
(Emphasis added.)
Br. A10
G reen v. N ew K en t C ounty, 391 U.S. 430 (1968) placed
upon school boards the burden
“ . . . to come forward with a plan that promises real
istically to work, and promises realistically to work
now ,” [and]
“ . . .to convert promptly to a system without a ‘white’
school and a ‘Negro’ school, but ju st schools.” (Empha
sis added.)
The principal difference between New Kent County,
Virginia, and Mecklenburg County, North Carolina, is that
in New Kent County the number of children being denied
access to equal education was only 740, whereas in Mecklen
burg that number exceeds 16,000. If B row n and N ew K en t
C ounty and Griffin v. P rin ce E dw ard C ounty and A lexa n d er
v. H olm es C ounty are confined to small counties and to
“ easy” situations, the constitutional right is indeed an il
lusory one. A black child in urban Charlotte whose educa
tion is being crippled by unlawful segregation is just as
much entitled to relief as his contemporary on a Virginia
farm.
B. “ Racial balance” is not required by this court.—The
November 7, 1969 order expressly contemplated wide vari
ations in permissible school population; and the February
5, 1970 order approved plans for the schools with pupil
populations varying from 3% at Bain Elementary to 41%
at Cornelius. This is not racial balance but racial diversity.
The purpose is not some fictitious “mix” , but the compli
ance of this school system with the Constitution by elimi
nating the racial characteristics of its schools.
C. “ B ussing” is still an irrelevan t issue.—Until the end
of the 1969-70 school year, state law and regulations au-
Memorandum of Decision and Order, dated August 3, 1970
Br. A ll
thorized bus transportation for almost all public school
children who lived more than 1% miles from the school to
which they were assigned. The excluded few were those
inner-city children who both lived and attended school
within the old (pre-1957) city limits.
If an inner-city child was assigned to a suburban or a
rural school, or if a rural or suburban child was assigned
to an inner-city school, he was entitled to bus transport.
Under those regulations, virtually all the children cov
ered by the court order of February 5, 1970, were entitled
to bus transport under then existing state regulations even
i f the ord er o f this court had not m entioned transportation.
In Sparrow v. Gill, 304 F.Supp. 86 (1969), a three-judge
federal court ordered an end to the discrimination against
the inner-city children (and thereby in effect ordered bus
transport for those children) by requiring the school au
thorities to discontinue transport for suburban children
unless they also offered it to inner-city children.
The state authorities have announced intention and pro
mulgated rules to comply with this decision by providing
transport on the usual basis for all city children who live
over 1Y2 miles from school.
The local School Board, in its last plan for partial ele
mentary desegregation, stated that
“Transportation will be provided to and from school
for all students who are entitled thereto under state
law and applicable rules and regulations promulgated
by the State.”
(Without such transportation even the Board’s own plan
would have left children, in numbers they estimate at
nearly 5,000, assigned to schools too far away to reach.)
Memorandum of Decision ancl Order, dated August 3, 1970
Br. A12
In view of the above facts, every child assigned to any
school over l 1/ ̂miles from his home is entitled to bus trans
portation in North Carolina.
The issue is not, “ Shall we bus children!” but “ Shall we
w ithhold transportation already available!”
In Griffin v. P rin ce Edw ard C ounty, 377 U.S. 218 (1964),
the Supreme Court held that a county could be required to
recreate an entire public school system rather than keep it
closed to avoid desegregation. The same principle would
seem to apply here.
D. This is a local case in a local court— a lawsuit— to
test the constitutional rights o f local p eop le.—The prin
ciples which outlaw racial discrimination in public schools
certainly are of nationwide application, but the fa cts and
results may vary from case to case. This is a local suit
involving actions of the State of North Carolina and its
local governments and agencies. The facts about the de
velopment of black Charlotte may not be the facts of the
development of black Chicago or black Denver or New
York or Baltimore. Some other court will have to pass on
that problem. The decision of the case involves local his
tory, local statutes, local geography, local demography,
local state history including half a century of bus trans
portation, local zoning, local school boards—in other words,
local and individual merits.
This court has not ruled, and does not rule that “racial
balance” is required under the Constitution; nor that all
black schools in all cities are unlawful; nor that all school
boards must bus children or violate the Constitution; nor
that the particu lar order en tered in this case would he
correct in o th er circum stances not b e fo re this court.
The orders of this court have been confined to the only
area they can properly embrace, and that is the rights o f
Memorandum of Decision and Order, dated August 3, 1970
Br. A13
the particular parties represen ted in this case, on the pa r
ticular fa cts and h istory o f this case.
E. The issue is not the validity o f a “ system ” , but the
rights o f i n d i v i d u a l p e o p l e .-— If the rights of citizens are
infringed by the system, the infringement is not excused
because in the abstract the system may appear valid.
“ Separate but equal” for a long time was thought to be a
valid system hut when it was finally admitted that indi
vidual rights were denied by the valid system, the system
gave way to the rights of individuals.
P. The Issu e Is One O f C onstitutional Law— N ot P o li
tics.—At the hearings the defendants offered public opinion
polls and testimony that parents don’t like “bussing,” and
that this attitude produces an adverse educational effect
upon the minds of the children. The court has excluded
such evidence, and must continue to proceed unaffected, if
possible, by this and other types of political pressure and
public opinion.
This is not out of disregard for the opinions of neighbors.
A judge would ordinarily like to decide cases to suit his
neighbors. Furthermore, as first suggested on August 15,
1969, it may well be that if the people of the community
understood the facts, as the court has been required to learn
and understand them, they would reach about the same
conclusions the court has reached.
To yield to public clamor, however, is to corrupt the judi
cial process and to turn the effective operation of courts
over to political activism and to the temporary local opinion
makers. This a court must not do.
In the long run, it is true, a majority of the people will
have their way. The majority must be a majority of the
pertinent voting group. As our slave-owning grandfathers
Memorandum of Decision and Order, dated August 3, 1970
Br. A14
of the South learned in 1865, the pertinent voting group on
constitutional matters includes the people and their elected
representatives from the nation at large, not just the South,
and not just Mecklenburg County. Methods exist to amend
the Constitution. If the Constitution is amended or the
higher courts rule so as to allow continued segregation in
the local public schools, this court will have to be governed
by such amendment or decisions. In the meanwhile, the duty
of this and other courts is to seek to follow the Constitution
in the light of the existing rulings of the Supreme Court,
and under the belief that the constitutional rights of people
should not be swept away by temporary local or national
public opinion or political manipulation.
Civil rights are seldom threatened except by majorities.
One whose actions reflect accepted local opinion seldom
needs to call upon the Constitution. It is axiomatic that
persons claiming constitutional protection are often, for
the time being, out of phase with the accepted “right” think
ing of their local community. If in such circumstances
courts look to public opinion or to political intervention by
any other branch of the government instead of to the more
stable bulwarks of the Constitution itself, we lose our gov
ernment of laws and are back to the government of man,
unfettered by law, which our forefathers sought to avoid.
Lord Edward Coke, Chief Justice of the Court of Com
mon Pleas of England, may have summed it up when in
1616 he wrote, responding to a peremptory demand from the
King’s attorney general, that he must deny the King’s re
quest because under his oath his obligation was that he
“ . . . shall not delay any person of common right for
the letters of the King or of any person nor for any
other cause . . . .”
Memorandum of Decision and Order, dated August 3, 1970
Br. A15
G. Tine duty to d esegregate schools does not depend upon
the Colem an rep ort, n or an any particular racial p rop ortion
o f studen ts .— The essence of the B row n decision is that
segregation implies inferiority, reduces incentive, reduces
morale, reduces opportunity for association and breadth of
experience, and that the segregated education itself is in
herently unequal. The tests which show the poor perform
ance of segregated children are evidence showing one result
of segregation. Segregation would not become lawful, how
ever, if all children scored equally on the tests.
Nor does the validity of B row n depend upon whether the
system contains ideal proportions of black and white stu
dents. The Charlotte-Meeklenburg system does contain a
theoretical “ideal” 70-30 proportion of white and black
students. This has some bearing upon the reasonableness
of any particular local plan or part of such plan. However,
it does not give rise to any legitimate contention that B row n
may be ignored where you cannot have at least 60% or 70%
white children in a school. The HEW plan providing for
57 % black students in a group of schools may well be con
stitutional in some other system, though unconstitutional
in Mecklenburg where a school 57% black is immediately
racially identifiable as a “black” school.
V .
T h e R easonableness of t h e Specific
M ethods and th e Overall P lan s A vailable
to D esegregate th e B lack C harlotte S chools.
A. The fa cts under which any question o f “ reasonable
n ess” must be judged.—From the lengthy and largely
repetitious testimony at the July 15-24 hearings, and from
previous evidence, the following facts bearing on “ reason
ableness” are found:
Memorandum of Decision and Order, dated August 3, 1970
Br. A16
1. In North Carolina the school bus has been used for
half a century to transport children to segregated con
solidated schools. Last year 610,000 children, comprising
nearly 55% of the state’s public school population, were
transported daily on school busses. With the 1970 exten
sion of transportation to inner-city children, the average
daily school bus population of North Carolina this Septem
ber will reach perhaps three-fifths of all public school
children. Those eligible for transport are far more numer
ous. The “ anti-bussing law” has been held unconstitutional.
2. Some 70.9% of these bussed children are in the first
eight grades. There may be more first graders than
children of any other age riding school busses.
3. The academic achievement tests quoted in this and
previous orders show that the later desegregation is post
poned in this school district the greater the academic
penalties are for the black children. By the sixth grade
the performance gap is several grades wide. By the eighth
grade it may be four grades wide.
4. School bus transportation is safer than any other
form of transportation for school children.
5. The defendants have come forward with no program
nor intelligible description of “compensatory education,”
and they advance no theory by which segregated schools
can be made equal to unsegregated schools.
6. In Charlotte-Mecklenburg approximately 23,300 chil
dren in grades one through twelve (plus more than 700
kindergarten children, ages four and five) ride some 280
schools busses to school every day. The school bus routes
for the four and five years olds vary from seven miles to
thirty-nine miles, one way. The average one way bus route
Memorandum of Decision and Order, dated August 3, 1970
Br. A17
in the system today is about an hour and fifteen minutes.
Average daily bus travel exceeds forty miles.
7. Approximately 5,000 children of all ages rode public
transportation (City Coach Company) every day of the
1969-70 school year at reduced fares, or 20̂ - a day (10 ̂
each trip).
8. The State Department of Public Instruction has
announced that it will pay for transportation of children
on city bus systems or by other contract carriers at what
ever rate may be approved by the North Carolina Utilities
Commission. City Coach Company has requested a fare
increase. City Coach has indicated a capacity to transport
between 6,000 and 7,000 pupils daily if they get fares and
routes satisfactorily established.
9. There are only two adult male drivers out of some
two hundred and eighty regular bus drivers who drove
school busses during the 1969-70 school year, and only
about seventeen adult women who drove kindergarten
school busses during that year. The other 260-plus drivers
are boys and girls, 16, 17 and 18 years old.
10. There is no black residential area in this school
system which is so large that the students can not be
afforded a desegregated education by reasonable means.
The additional length of travel required to implement the
best available plans for desegregating the system is less
than the average distance of bus transportation now being
provided elementary children under existing bus practices,
and the travel times are less than times required by existing
bus routes.
Memorandum of Decision and Order, dated August 3, 1970
Br. A18
11. The oiler of transportation to encourage “freedom
of choice” is ineffectual. It was expressly ordered by this
court on April 23, 1969, and put into effect by the de
fendants in the fall of 1969; and it has had no substantial
effect upon the exercise by black children of freedom of
choice to go to white schools.
12. There is no “ intractable remnant of segregation” in
this school system. No part of the system is cut off from
the rest of it, and there is no reasonable way to decide what
remnant shall be deemed intractable.
13. The regular bus routes are about 280 in number,
including 17 bus routes transporting four and five-year-old
children to child development centers (kindergartens).
14. Up until the July 15, 1970 hearings, the defendants
had allowed the court to believe they only had 280 buses
plus a few spares. On the last day of the hearing, however
(July 24, 1970), some amazing testimony was developed
on cross-examination of the witness J. W. Harrison, the
Transportation Superintendent. He testified and the court
finds as facts that in addition to the 280 “regular” busses,
Memorandum of Decision and Order, dated August 3, 1970
the Board’s bus assets include at least the following:
(i) Spare buses ..................................................... . 20
(ii) Activity buses (each driven less than 1,000
miles a year) ............... ................................... 29
(iii) Used buses replaced by new ones in 1969-70 30
(iv) New buses currently scheduled for replace
ment purposes and expected to be delivered
in near future ................................... ............... 28
Total: 107
Br. A19
15. It only requires, at the most, 138 busses to implement
the court ordered plans for desegregation of all the high
schools, junior high schools, and elementary schools in the
county!
16. In addition to this, the State school Bus Transporta
tion Department informed the local defendants in early
1970 that there were 75 new busses available to the local
school system if they wanted them, out of the 400 new
buses then held by the State.
17. As of July 18, 1970, it was stipulated that the State
Board of Education had 105 new busses on hand and 655
new ones on order, of which some 289 had been manufac
tured.
18. It was stipulated that by September 1st the State
Department of Education would have approximately 400
secondhand busses on hand and available on loan, without
cost, for local school boards to use in 1970-71.
19. According to Defendants’ Exhibit 35, a letter of July
10, 1970 from the State Superintendent of Public Instruc
tion to the Superintendent of the Charlotte-Mecklenburg
school system:
“At the present time approximately 400 discarded busses
are available at various school garages in the state
that could sa fe ly be used, i f necessary, on a temporary
basis for the transportation of additional children.”
(Page 4) (Emphasis added.)
“In the event discarded busses must be used on a tem
porary basis the state will expect a local school unit
to replace the discarded bus pressed back into service
Memorandum of Decision and Order, dated August 3, 1970
Br. A20
as early as possible and at least by the beginning of
the following fiscal year.” (Page 6)
# *
“ W e would request school units that hold title to these
[old] busses to tra n sfer the title w ithout cost to the
school unit needing to use th ese veh icles on a tem po
ra ry basis.” (Page 6) (Emphasis added.)
# # *
“It would be the responsibility of the school unit re
questing temporary use of old busses to put the old
busses in good mechanical repair after they receive
delivery of the bus.” (Page 7)
20. The testimony of Mr. Harrison was that for a 54-
passenger bus a set of new tires, if needed, would cost
$324; a complete overhaul of the brakes with replacement
of all rubber parts and working parts would cost about
$25. (Mechanics are paid on a salary, not a commission,
basis.)
21. The brakes, tires, lights and steering on any second
hand bus which might be put into service can be put into
first-class safety condition for a figure per bus not exceed
ing $500. In the case of the busses already on hand in the
Charlotte-Mecklenburg system, this cost should be less,
because the local system has an excellent preventive main
tenance and parts replacement program and according to
the transportation superintendent anticipates and makes
repairs before trouble develops, rather than wait for break
downs, so that the old rolling stock as well as the new is
kept in good condition.
Memorandum of Decision and Order, dated August 3, 1970
Br. A21
22. The transportation superintendent, Mr. Harrison,
testified that he maintains, and now has, a manpower re
serve of about 100 students who are qualified and available
as school bus drivers, over and above the 280-odd regular
drivers. More are now being trained.
23. The estimated school budget for the year 1970-71 is
approximately $66,000,000, which is $8,000,000 more than
the 1969-70 budget.
24. Of this $66,000,000 the amount of approximately
$21,900,000 was allocated to the School Board by the county
without restriction as to its use, and the School Board is
free to use whatever part of it they find necessary to comply
with court orders. (Blaisdell testimony.)
25. The Board’s opinion evidence, including numerous
exhibits, on numbers of pupils to be transported and num
bers of extra busses required (526 for the entire system,
293 for elementary schools) can not be taken seriously. The
pupil count was made by counting all pupils in each zone
who live more than a mile and a quarter (not a mile and a
half) from each school, and (with some minor but unspeci
fied adjustments) treating all of these children as requir
ing transportation. This method fails to account for several
factors such as (1) the 7% who are absent every day; (2)
the pupils now riding City Coach busses; (3) the pupils
now already receiving school bus transport; (4) those who
go to school in private vehicles.
Moreover, by cutting the “walking distance” from the
statutory figure of 1% miles to 114 miles, the Board method
reduces by 40% (from over seven square miles to just over
five square miles) the area of the walking zone and thereby
sharply increases those eligible for bus transport.
Memorandum of Decision and Order, dated August 3, 1970
Br. A22
In computing needed busses, the Board figures unwar-
rantedly assume: (1) that each bus can make only one
round trip a day instead of the average of 1.8 round trips
a day now made; (2) that each bus can only transport 46
pupils a day instead of the present average of 84.4; (3)
that busses used in the desegregation program must be less
efficient than the others.
All these assumptions are contrary to the evidence which,
for example, shows that one “desegregation” bus (Bus #23,
Exhibit 54) transported 99 children daily among schools
as remote as Northwest Charlotte (9th and Bethune) on
the one hand and Sharon Elementary and Beverly Woods
Elementary, and Quail Hollow Junior High on the other,
with the driver then going on in the bus to South High
School.
The court’s previous findings on these items are re
affirmed. Maximum numbers of pupils to be. transported
and additional busses needed, even if Sparroiv v. Gill were
not in the picture, remain:
Memorandum of Decision and Order, dated August 3, 1970
No. Pupils No. Busses
Senior High 1,500 20
Junior High 2,500 28
Elementary 9,300 90
13,300 138
(Board witnesses after refining lines and making actual
pupil assignments now say that the number of senior high
pupils requiring transportation is 1,815 and the number of
junior high pupils requiring transportation is 2,286.)
Br. A23
26. All plans which desegregate all the schools will re
quire transporting approximately the same number of
children. In overall cost, if a zone pupil assignment method
is adopted, the minority Board plan may he a little cheaper
than the Finger plan.
27. Mecklenburg County had a July 31, 1970 surplus or
“carry-forward” of approximately four million dollars, of
which one million dollars are completely free of any alloca
tion or budgeting commitment.
28. North Carolina, whose biennial 1969-71 budget is
$3,590,902,142.00, regularly has a biennial surplus of many
millions of dollars.
29. The annual cost of pupil transportation is approxi
mately $20 a year per pupil; the state pays it all, except for
certain minor local administrative costs, and the original
purchase of the first bus for a route; thereafter, the state
replaces the bus periodically. Earlier findings that the cost
was $40 per pupil year were in error.
30. No capital outlay will be needed to supply busses
for the 1970-71 school year. The state is ready and willing
to lend the few busses the Board may need; replacements
can be bought after actual need has been determined under
operating conditions.
31. The $66,000,000 school budget amounts to about $366,-
667 a day for a 180-day school year. If the county even
tually has to buy as many as 120 new busses, their cost,
at $5,500 each, would be $660,000, which is less than the
cost ($733,000) of two days of school operation.
Memorandum of Decision and Order, dated August 3,1970
Br. A24
32. Age of children has apparently never prevented their
school bus transportation. There are, of course, more chil
dren between kindergarten and the sixth grade than there
are in the higher grades when the dropout rate increases,
and more elementary children, including first graders, re
ceive transportation than do high schoolers.
The longest bus routes in the entire county are the routes
by which four and five-year-old kindergarten children are
transported to child development centers (see Principals’
Monthly Bus Report, Defendants’ Exhibit 63). The Pine-
ville Child Development Center has one bus, No. 297, which
travels over 79 miles a day on one round trip with four
and five-year-old children. Another such trip is over 70
miles a day. The Davidson Child Development Center has
five busses which travel from 48 to 60 miles a day on one
round trip with five-year-old children. The Bain Elemen
tary School has a bus route, No. 115, which travels over
61 miles on one round trip each day, requiring two hours
in the morning and two hours in the afternoon with elemen
tary children. Routes to numerous elementary schools are
very long in miles and time. The more than 10,000 children
in grades one through six who have been riding school
busses all these years and who now ride at an average
travel time of an hour and a quarter each way are not
shown to have had their education damaged by the ex
perience.
Educationally it appears unreasonable to postpone de
segregation of small children until later grades. The only
concrete evidence of an educational nature in the whole
hearing which rose above the level of opinion is the Stan
ford Achievement Tests which show that the performance
gap, which is ordinarily noticeable in the first grade, has
become several grades wide by the time the segregated
Memorandum of Decision and Order, dated August 3, 1970
Br. A25
black tilliId reaches the sixth grade. The lasting effects of
segregation are minimized if it is eliminated at an early
age.
33. Traffic problems.—The county has over 160,000 pas
senger vehicles and nearly 30,000 trucks registered in it.
It is estimated that the total number of automobile trips in
the county daily other than truck trips is over 869,000.
Traffic is heavy in most parts of the county. Since the so-
called “cross-bussing” of the Finger plan or the minority
plan will not contemplate pick up and discharge of pupils
in the central business area, the busses added by the Finger
plan or the minority Board plan will provide very little
interference with normal flow of traffic. School busses are
no wider than other busses (the law requires that this be
so ) ; they already use all the major streets and traffic
arteries in the county and city every school morning of
the year. There is no evidence to show that adding 138
school busses to the volume of existing traffic will provide
any such impediment as should be measured against the
constitutional rights of children. It would also appear that
a school bus transporting 40 to 75 children should reduce
traffic problems by cutting down on the number of auto
mobiles that parents might otherwise be driving over the
same roads.
34. The schools already operate on staggered schedules.
Today, the opening and closing of schools and the class
hours of school bus drivers are adjusted to serve the prac
tical requirements of transportation. Plaintiffs’ Exhibit 12
shows that the elementary schools already operate on a
staggered opening and closing schedule. Some open at 8 :00;
some at 8 :05; some at 8 :10; some at 8 :15; some at 8 :25 and
Memorandum of Decision and Order, dated August 3, 1970
Br. A26
some at 8 :30 and 8 :45 in the morning, and the schools close
for grades one and two at hours including 1 :30; 1 :35; 2 :00;
2:15; 2:30; 2:45; 3:00; 3:05 and 3:10. The court finds that
staggered opening and closing hours for elementary
schools, and arrangement of class schedules of bus drivers
for late arrival and early departure are facts of life which
will not be eliminated by desegregation of the schools.
35. The defendants have plenty of money, plenty of
know-how, plenty of busses on hand or available upon re
quest, and plenty of capacity to implement the court ordered
plan or the minority plan or any combination of the vari
ous plans. Their contentions to the contrary, and their five
million dollar “ estimates,” when heard against the actual
facts, border on fantasy!*
B. R easonableness o f m ethods.—“Reasonable” is vari
ously defined in more than 1,000 words in Webster’s Un
abridged D ictionary. In the context, the most appropriate
definition seems to come from Black’s Law D ic tio n a ry :
“Reasonable. Just; proper. Ordinary or usual. F it and
appropria te to the end in view .” (Emphasis added.)
The end in view is the desegregation of the schools. The
methods available include the following: (1) consolidation
of schools (which began fifty years or more ago) and for
which the school bus has been the “ ordinary or usual,”
as well as the necessary tool; (2) assignment of pupils;
Memorandum of Decision and Order, dated August 3,1970
# “There was a table set out under a tree in front of the house,
and the March Hare and the Hatter were having tea at i t . . . .
The table was a large one, but the three were all crowded together
at one corner of it. ‘No room! No room!’ they cried out when they
saw Alice coming. ‘There’s plenty of room!’ said Alice indignantly,
and she sat down in a large arm-chair at one end of the table.”
(Lewis Carroll, Alice’s Adventures in Wonderland.)
Br. A27
(3) school bussing; (4) non-contiguous zoning (before
B row n , no black child was allowed to attend the nearest
school if it happened to be white); (5) restructuring of
grades in schools; (6) rezoning; (7) pairing, clustering
and grouping of schools; (8) use of satellite zones; (9)
freedom of choice, with appropriate restrictions; and (10)
closing of schools.
All of these methods have been approved as legal by the
Fourth Circuit Court of Appeals and by other courts. They
work; singly and in combination they can work to accom
plish the reassignment of children to eliminate segregation.
If they are legal, and if they accomplish the end in view,
and if they have been in use for half a century, they cer
tainly qualify as “reasonable” methods. They are “appro
priate to the end in view” ; they desegregate the schools
in a practical way.
C. The various plans .—
1. The 5/4 M a jority B oard Plan.—The original Board
plan was rejected by this court and by the Circuit Court.
The School Board has not obeyed the order of the Circuit
Court of Appeals to file a new plan, and has not drafted
nor attempted to draft another plan. The Board majority
have not explored other methods of desegregation as di
rected by the Circuit Curt (pairing, clustering, grouping,
non-contiguous zoning, re-arranging grade structures), ex
cept to discuss these matters among themselves and to offer
lengthy testimony rationalizing the non-use of alternative
methods. Although parts of the disapproved Board plan
could be used in a current plan, the Board plan as origi
nally proposed is still inadequate because it leaves half
the black elementary students still attending black schools.
The court does not find it to be reasonable.
Memorandum of Decision and Order, dated August 3, 1970
Br. A28
2. The H E W plan.—This plan proposes to adopt the
basic zoning program of parts of the Board majority plan,
and then to re-zone some of the black schools with some
white schools, mostly in low and middle income areas, and
by clustering, pairing, grouping and transportation, to pro
duce a substantial desegregation of most of the black
schools. The faults of the plan are obvious. It leaves two
schools (Double Oaks and Oaklawn) completely black; it
leaves more than a score of other schools completely white;
it would withdraw from numerous white schools the black
students who were transported to those schools during the
1969-70 school year. The clusters proposed by HEW would
for the most part continue to be thought of as “black” in
this county because the school populations of most of the
clusters would vary from 50% to 57% black and the lowest
black percentage in any cluster is 36%. Recommended
HEW faculty assignments to these clusters of schools con
templated faculties which in the main would be less than
half white, and this would be another retrogression from
the arrangements already made by the School Board for
the fall term! Contrary to orders of the district court and
the Circuit Court, the HEW people limited their zoning
to contiguous areas.
All witnesses except the HEW representatives them
selves joined in hearty criticism of the HEW plan because
of its ignorance of local problems, because of its threat of
resegregation, and because it tends to concentrate upon
the black and low-or middle-income community a race prob
lem that is county wide.
In other days and other places the HEW plan would have
looked good; and in those districts where black students
are in the majority, much of such a plan could well be
reasonable today. However, “ reasonableness” has to be
Memorandum of Decision and Order, dated August 3, 1970
Br. A29
measured in the context; and in this context the HEW plan
does not pass muster. It also on the facts of this case would
fail to comply with the Constitution.
3. The court ord er o f F eb ru a ry 5, 1970, including the
F in g er Plan.—This order directs the desegregation of the
schools. It offers the Finger plan as one way to do it, and
encourages the Board to use its own resources to develop
something better. As to the Finger elementary plan itself,
the court, after eight days of further evidence and exten
sive further study, still finds it to be a reasonable method
or collection of methods for solving the problem. The plan
was designed by a qualified educator. It was drafted with
technical assistance of the school staff. It does the complete
job. It has a clear pupil assignment plan. It preserves a
sound grade structure; it is adaptable to ungraded ex
perimentation ; it can be implemented piecemeal, in sections
or by clusters of schools if necessary; it embraces local
knowledge; it can be implemented immediately. It uses
all reasonable methods of desegregation. It takes proper
advantage of traffic movement and school capacity. It
passes all tests of reasonableness.
4. The 4/5 M in ority B oard Plan.—This plan was pre
sented intelligently and clearly by Dr. Carlton Watkins,
its chief drafter, one of a 4/5 minority of the Board. It
was spared any aggressive attack by Board witnesses or
counsel. It is home grown. It was conceived and drafted
by four members of the local Board. It uses all the tech
niques of the Finger plan. It desegregates all the schools.
Like the Finger plan, it involves all communities of the
county. It appears to the court that it can be implemented
with somewhat shorter travel distances for school busses,
Memorandum of Decision and Order, dated August 3, 1970
Br. A30
though perhaps a few more children might have to ride
school busses than under the Finger plan. Its assignments
are made with an eye toward the dynamics of community
growth and shrinkage. It is spontaneous in origin and
shows a willingness on the part of some of the Board to
experiment. Its cost of implementation is roughly on a
par with that of the Finger plan. Like the Finger plan,
it can be implemented one part at a time and it does not
create probabilities of resegregation of black schools. The
principal fault of the minority plan is its present lack of
a system of pupil assignment. Board witnesses were not
willing to admit it outright, but the court has the very
definite impression that they could draft a pupil assign
ment plan and put the minority plan into effect this fall
if so directed by the Board.
5. An earlier draft of the Finger plan.—This draft, il
lustrated by Plaintiffs’ Exhibit 10, is the first comprehen
sive recommendation of Dr. Finger to the court and to the
school staff. It would require less transportation than any
other plan before the court, and for shorter distances. It
would have to be implemented all at once, and it does not
involve all of the county in its scope. From the standpoint
of economics it may be the cheapest plan available. From
the standpoint of avoidance of tendencies toward resegre
gation and from the standpoint of total community involve
ment in the total community plan it is not on a par with the
minority plan nor the final Finger plan. It is however, like
the minority plan and the final Finger plan ordered by
the court, a “ reasonable” plan.
Memorandum of Decision and Order, dated August 3, 1970
Br. A31
VI.
A R eservation C o n cern ing R easonableness
V ersus C o n stitu tio n a l R ights
Reasonable remedies should always be sought. Practical
rather than burdensome methods are properly required.
On facts reported above, the methods required by this
order are reasonable. However, if a constitutional right
has been denied, this court believes that it is the constitu
tional right that should prevail against the cry of “un
reasonableness.” If a home has been illegally searched
and evidence seized, the evidence is suppressed. If a
defendant in a drunk driving case “takes the Fifth” and
puts the state to its proof, the state has to prove its case
without any testimony from him. The unreasonableness of
putting the state to some expense can not be weighed
against nor prevail over the privilege against self-incrimi
nation or the right of people to be secure in their homes.
If, as this court and the Circuit Court have held, the rights
of children are being denied, the cost and inconvenience of
restoring those rights is no reason under the Constitution
for continuing to deny them. Griffin v. Prince Edward
County, supra.
Memorandum of Decision and Order, dated August 3,1970
O R D E R
1. Pursuant to the June 29, 1970 mandate of the Su
preme Court of the United States, this court’s order of
February 5, 1970 will remain in effect pending these pro
ceedings and except as modified herein or by later order
of this court or a higher court.
2. The action of the Board in making faculty assign
ments in accordance with the order of February 5, 1970 is
approved.
Br. A32
3. The action of the Board in making pupil assignments
and other arrangements to operate the senior high schools
in accordance with this court’s order of February 5, 1970
is approved.
4. The action of the Board in making pupil assignments
and other arrangements to operate the junior high schools
in accordance with this court’s order of February 5, 1970 is
approved.
5. Numbered paragraphs 10 [823a] and 11 [824a] of
the February 5, 1970 order of this court are amended by
inserting the words “cumulative” and “ substantially” at
the appropriate points in each paragraph so that the two
paragraphs will read as follows:
“10. That ‘freedom of choice’ or ‘freedom of transfer’
may not be allowed by the Board if the cumulative
effect of any given transfer or group of transfers is
to increase substantially the degree of segregation in
the school from which the transfer is requested or in
the school to which the transfer is desired.
“ 11. That the Board retain its statutory power and
duty to make assignments of pupils for administrative
reasons, with or without requests from parents. Ad
ministrative transfers shall not be made if the cumu
lative result of such transfers is to restore or substan
tially increase the degree of segregation in either the
transferor or the transferee school.”
6. As to the elementary schools:
(a) The order entered by this court on February 5, 1970
having been subjected to three weeks of review under the
Memorandum of Decision and Order, dated August 3, 1970
Br. A33
reasonablness test is expressly found to be reasonable, and
the School Board are directed to put the court ordered
plan of desegregation into effect at the opening of school
in the fall of 1970, unless they avail themselves of some
of the options indicated herein.
(b) The plan for elementary school desegregation pro
posed by a 4/5 minority of the School Board (the Watkins
plan) has been examined and is found to be reasonable,
as far as it goes. It is, however, incomplete because it
contains no plan for pupil assignment. The School Board
are authorized to prepare an appropriate pupil assignment
plan and use the minority plan for elementary school de
segregation instead of the comparable portions of the plan
previously ordered by the court, if they so elect.
(c) The School Board, if they so elect, may use portions
of the minority plan and portions of the court ordered
plan, bearing in mind that the most important single ele
ment in the order of this court on February 5, 1970 is para
graph 16, reading as follows:
“ 16. The duty imposed by the law and by this order
is the desegregation of schools and the maintenance of
that condition. The plans discussed in this order,
whether prepared by Board and staff or by outside
consultants, such as computer expert, Mr. John W.
Weil, or Dr. John A. Finger, Jr., are illustrations of
means or partial means to that end. The defendants
are encouraged to use their full ‘know-how’ and re
sources to attain the results above described, and thus
to achieve the constitutional end by any means at their
disposal. The test is not the method or plan, but the
results.”
Memorandum of Decision and Order, dated August 3, 1970
Br. A34
(d) The Board are free to incorporate into any plan
they may make whatever portions of the work of the De
partment of Health, Education and Welfare staff, or such
parts of the original partial Finger plan (Plaintiffs’ Ex
hibit 10), which are consistent with their duty to carry out
the order to desegregate the schools.
(e) If the Board elect to carry out the Finger plan, they
are authorized, if they find it advisable, to close Double
Oaks school and reassign its pupils in accordance with
the general purposes of the February 5, 1970 order.
(f) The Board are directed to file a written report with
this court on or before noon on Friday, August 7, 1970,
indicating what plan or combination of plans they have
voted to use.
(g) The Board are again reminded, as they were re
minded during the July 15, 1970 hearings, that since the
29th day of June, 1970, they have been and still are subject
to the order of the Supreme Court, which reinstated this
court’s February 5, 1970 order pending these proceedings,
and that this court will be under some duty to measure
the Board’s performance against what they could have
done starting on June 29, 1970.
7. The following portion of this order is taken in modi
fied form from the recommendations in the proposed plan
of the Department of Health, Education and Welfare. It
has been included in part in orders of district courts to
various school systems, such as the school system in Dor
chester County, South Carolina. It is included in this order
not with any idea of impairing or affecting any party’s
l ight of appeal, but with the thought that this community
Memorandum of Decision and Order, dated August 3, 1970
Br. A35
lias a difficult job of implementing a major desegregation
program and that just as in the case of Greenville, South
Carolina, whose schools were desegregated before any final
word came from the Supreme Court, it will take leadership
to do the job. Some of these suggestions of the Depart
ment of Health, Education and Welfare are therefore in
corporated in this order as follows, for such aid as they
may be in working through the difficult administrative and
community problems which must be overcome:
S uggestions fob P la n I m plem en tatio n
Successful implementation of desegregation plans
largely depends upon local leadership and good faith
in complying with mandates of the Courts and the laws
upon which the Courts act. The following suggestions
are offered to assist local officials in planning for im
plementation of desegregational orders.
Community
1. The Superintendent and Board of Education should
frankly and fully inform all citizens of the com
munity about the legal requirements for school de
segregation and their plans for complying with
these legal requirements.
2. The Board of Education should issue a public state
ment clearly setting forth its intention to abide by
the law and comply with orders of the Court in an
effective and educationally responsible manner.
3. School officials should seek and encourage support
and understanding of the press and community or
ganizations representing both races.
Memorandum of Decision and Order, dated August 3, 1970
Br. A36
4. The Board of Education, or some other appropriate
governmental unit, should establish a bi-racial ad
visory committee to advise the Board of Education
and its staff throughout the implementation of the
desegregation plan. Such committee should seek
to open up community understanding and commu
nication, to assist the Board in interpreting legal
and educational requirements to the public.
5. The Superintendent should actively seek greater
involvement of parents of both races through school
meetings, newsletters, an active and bi-racial
P.T.A., class meetings, parent conferences, and
through home visits by school personnel.
6. The Superintendent and Board of Education should
regularly report to the community on progress in
implementing the desegregation plan.
School Persownel
1. The Superintendent should provide all personnel
copies o f the desegregation plan and arrange for
meetings where the personnel will have an oppor
tunity to hear it explained.
2. The Board of Education should issue a policy state
ment setting forth in clear terms the procedures it
will follow in reassignment of the personnel.
3. Assignments of staff for the school year should be
made as quickly as possible with appropriate fol
lowings by school principals to assure both welcome
and support for personnel new to each school. In
vitations to visit school before the new school year
begins should be offered.
Memorandum of Decision and Order, dated August 3, 1970
Br. A37
4. The Superintendent should see that a special orien
tation program is planned and carried out for both
the professional and non-professional staffs (includ
ing bus drivers, cafeteria workers, secretaries and
custodians) preparatory to the new school year.
He should make every effort to familiarize new and
reassigned staff with facilities, services, and build
ing policies, and prepare them to carry out their
important role in a constructive manner. The Su
perintendent should direct each principal to see that
each teacher new to a school is assigned for help
and guidance to a teacher previously assigned to
that school. Such teachers should have an oppor
tunity to meet before the school year actually begins.
5. The Superintendent should arrange an in-service
training program during the school year to assist
personnel in resolving difficulties and improving
instruction throughout the implementation period.
Help in doing this is available from the St. Augus
tine College in Raleigh, North Carolina.
8. The Clerk is directed to serve copies of this order on
the members of the School Board individually, and upon all
other parties by sending copies by certified mail to their
counsel of record.
9. Subject to further orders from higher courts, juris
diction is retained, and the attention of the parties is called
to pages 27 and 28 [1278a-1279a] of the order of the Fourth
Circuit Court of Appeals respecting the duties of the court
and the parties with regard to any desired modification of
the plan or of this order.
Memorandum of Decision and Order, dated August 3,1970
Br. A38
Memorandum of Decision and Order, dated August 3, 1970
This the 3rd day of August, 1970.
/ s / J am bs B. M cM illa n
James B. McMillan
United States District Judge
[The “ 18-page exhibit listing approximately 65 sections
of the General Statutes of North Carolina and 2 sec
tions of its Constitution under which segregation of
the black race in North Carolina has been the policy
of our Constitution and the letter of our statutes for
many years (Br. A4)” is omitted.]
Br. A39
The defendant school board and this conrt are under
order of the Fourth Circuit Court of Appeals to produce
a plan for desegregation of the elementary schools to
“ take effect with the opening of school next fall.”
Pending the proceedings, by order of the Supreme Court
of the United States, this court’s February 5, 1970, judg
ment, including the Finger plan, is in effect.
On August 3, 1970, after lengthy hearings, this court
by order directed the defendants to elect which among
several options they had voted to use to desegregate the
elementary schools.
On August 7, 1970, the board reported to the court that
they have authorized an appeal from this court’s order
of August 3, 1970; that they reject the various options
from among which the court authorized them to choose;
and that the hoard
“has no choice but to acquiesce in the District Court’s
order relative to its own elementary plan of Feb
ruary 5, 1970 . . . In acquiescing the Board is of
the firm continuing opinion that the Court ordered
plan of February 5, 1970, is unreasonable.”
The court accepts the board’s action as its undertaking
to use the plan directed on February 5, 1970, (as modified
on August 3, 1970) in its desegregation of the elementary
schools.
This 7th day of August, 1970.
/a/ J am bs B. M cM illan
J am es B. M cM illan
United States District Judge
Memorandum Decision, dated August 7, 1970
Br. A40
Defendants’ Report of Action Taken as Directed
by the Court in Its Order of August 3 , 1970
The Board of Education met in public session and
adopted the following resolution for submission to the
Court, said resolution being as follows:
“ This written report is submitted to the United States
District Court for the Western District of North Carolina
pursuant to its mandate dated August 3, 1970, and entered
into that certain civil proceedings entitled James E. Swann,
et. al., plaintiff, vs. Charlotte-Mecklenburg Board of Ed
ucation, et. al., defendants.
“ ‘The Board are directed to file a written report with
this Court on or before Noon Friday, August 7, 1970,
indicating what plan or combination of plans they have
voted to use.’
That Court, in its August 3, 1970, Order, provided that
as to elementary schools, Paragraph 6-A.
“ ‘The Order entered by this Court on February 5, 1970,
having been subjected to three weeks of review under
the reasonabless test, is expressly found to be reason
able and the School Board are directed to put the
Court ordered plan of desegregation into effect at the
opening of school in the fall of 1970 unless they avail
themselves of some of the options indicated herein.’
“The School Board concluded that the options referred
to, the Watkins, the early Finger and the HEW plans,
do not offer reasonable alternatives which comply with the
standards prescribed by the Court of Appeals of the Fourth
Circuit and therefore has no choice but to acquiesce in
the District Court’s Order relative to its own elementary
plan of February 5th which, upon rehearing, the District
Br. A41
D efen d an ts ’ R ep ort o f A ction Taken as D irected
by the Court in I ts O rder o f A u gu st 3,1970
Court itself found to be reasonable. In acquiescing the
Board is of the firm continuing opinion that the Court
ordered plan of February 5, 1970, is unreasonable.”
Furthermore, the Board of Education authorized the
Board Attorneys to appeal the Order of August 3, 1970,
as it is deemed to be unreasonable and contrary to law.
/ s / W illiam J. W aggoner
W illiam J. W aggoner
W e in s te in , W aggoner, S turges,
Odom & B igger
1100 Barringer Office Tower
426 North Tryon Street
Charlotte, North Carolina 28202
/ s / B e n ja m in S. H orace:
B e n ja m in S. H oracii
E r v in , H orack and M cCartha
806 East Trade Street
Charlotte, North Carolina
MEIIEN PRESS INC. — N, Y. C. 219