Wallace v. United States America Appellant's Brief

    I n  t h e

(ftmtrt uf thv Imtpfc States
Octobee Teem, 1970 

No. 498

North Carolina State B oard of E ducation, et al.,

Appellants,
v.

James E. Swann , et al.,
Appellees.

ON A PPE A L FROM  T H E  U N IT E D  STATES D ISTR IC T COURT 

FOR T H E  W E STE R N  D ISTRICT OF N O R T H  CAROLINA

MOTION TO AFFIRM OR DISMISS

Jack Greenberg 
James M. Nabrit, III 
Norman J. Chachkin 

10 Columbus Circle 
New York, New York 10019

J. L eV onne Chambers 
A dam Stein

Chambers, Stein, F erguson &  Lanning 
216 West Tenth Street 
Charlotte, North Carolina 28202

C. O. Pearson

203% East Chapel Hill Street 
Durham, North Carolina 27702

Attorneys for Appellees



I N D E X

Opinions B elow ...............    1

Jurisdiction ........................      2

Questions Presented............................................................  2

Statement ...................................   3

Introduction ...............    3

Proceedings during 1969-70 before a Single Dis­
trict Judge ....     4

Obstruction of the District Court Orders; Conven­
ing of Three-Judge Court..........................................  6

A rgument—

I. The Case Presents No Substantial Questions 
Not Previously Decided by This C ourt........... 11

A. This Court Decided in 1809 in United
States v. Peters That State Legislatures 
Could Not Validly Annul Federal Court 
Judgments ......................................................  11

B. This Court Decided in Green v. County
School Board of New Kent County That 
School Boards Must Take Affirmative 
Action to Disestablish Dual Segregated 
School Systems ..............................................  16

II. The Appeal Should Be Dismissed Because 
the Case Was Not Required to Be Heard by 
a Three-Judge Court ..........................................  17

PAGE



11

PAGE

A. The Case Involved Primarily a Supremacy 
Clause Issue and Thus no Three-Judge 
Court Was Required Under the Doctrine
of Swift & Co. v. Wickham ........................... 17

B. The Anti-Bussing Law Is So Obviously
Unconstitutional That no Three-Judge 
Court Was Required...........................   18

Conclusion ...........    19

Table op A uthobities

Cases:

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

296 P. Supp. 199 (D. S.C. 1968), judgment affirmed,
393 U.S. 222 (1968)............................. ............ ...............  13

Bryant v. State Board of Assessment, 293 F. Supp.
1379 (E.D. N.C. 1968)....................................................  15

Bush v. Orleans Parish School Board, 194 F. Supp. 182 
(E.D. La. 1961), judgment affirmed, sub nom. Tug- 
well v. Bush, 367 U.S. 907 (1961) and G-remillion v.
United States, 368 U.S. 11 (1961)....................... ........  13

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

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



I l l

Bush v. Orleans Parish School Board, 188 P. Supp. 916 
(E.D. La. 1960), stay denied sub nom. United States 
y. Louisiana, 364 U.S. 500 (1960), judgment affirmed,
365 U.S. 569 (1961)....................................... ..... .......... 12,14

Bush v. Orleans Parish School Board, 187 P. Supp. 42 
(E.D. La. 1960), stay denied, 364 U.S. 803, judgment 
affirmed, Orleans Parish School Board v. Bush, 365 
U.S. 569 (1961)................................................................ 12,14

Cooper v. Aaron, 358 LT.S. 1 (1958)........................... ...12,16

Ex parte Poresky, 290 U.S. 30 (1933)............................... 18

Faubus v. United States, 254 F.2d 797 (8th Cir. 1958), 
cert, denied, 358 U.S. 829 ..............................................  15

Godwin v. Johnston County Board of Education, 301 
P. Supp. 339 (E.D. N.C. 1969)......................................  15

Green v. County School Board of New Kent County,
391 U.S. 430 (1968)........................................................ 16,18

Hall v. St. Helena Parish School Board, 197 P. Supp.
649 (E.D. La. 1961), judgment affirmed, 368 U.S. 515 
(1961) .... .............. ................. ............. ............... .............  13

Harvest v. Board of Public Instruction of Manatee 
County, 312 P. Supp. 269 (M.D. Pla. 1970)............... 15

Lee v. Macon County Board of Education, 267 P. Supp.
458 (M.D. Ala. 1967), affirmed sub nom. Wallace v. 
United States, 389 U.S. 215 (1967)..........................13,15

Louisiana Education Commission for Needy Children 
v. U. S. District Court, 390 U.S. 939 (1968)............... 13

PAGE

Marbury v. Madison, (US) 1 Cranch 137.........
Meredith v. Pair, 328 F.2d 586 (5th Cir. 1962)

16
15



IV

PAGE

Mitchell v. Donovan, 398 U.S. 427 (1970)....................... 10
Moore v. Charlotte-Meeldenburg Board of Education,

No. 444, O.T. 1970 ....... ..................................................  3
Moore v. Charlotte-Mecklenburg Board of Education,

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

Poindexter v. Louisiana Financial Assistance Commis­
sion, 275 F. Supp. 833 (E.D. La. 1967), judgment af­
firmed, 389 U.S. 571 (1968)..........................................  13

Poindexter v. Louisiana Financial Assistance Commis­
sion, 296 F. Supp. 686 (E.D. La. 1968), judgment 
affirmed, sub nom. Louisiana Education Commission 
for Needy Children v. Poindexter, 393 U.S. 17 (1968) 13

Rockefeller v. Catholic Medical Center, 397 U.S. 820
(1970) ................................................................................ 10

Sterling v. Constantin, 287 U.S. 378 (1932)................... 15
Swann v. Charlotte-Mecklenburg Board of Education,

312 F. Supp. 503 (W.D. N.C. 1970)....................... .......  1
Swann v. Charlotte-Mecklenburg Board of Education,

No. 281, O.T. 1970 ........................................................ 3,4, 5
Swann v. Charlotte-Mecklenburg Board of Education,

243 F. Supp. 667 (W.D. N.C. 1965), affirmed, 369 
F.2d 29 (4th Cir. 1966); 300 F. Supp. 1358 (1969);
300 F. Supp. 1381 (1969); 306 F. Supp. 1291 (1969);
306 F. Supp. 1299 (1969); 306 F. Supp. 1301 (1969);
306 F. Supp. 1306 (1969) ; 311 F. Supp. 265 (1970).... 4

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

Thomason v. Cooper, 254 F.2d 808 (8th Cir. 1958).......  15
Turner v. Memphis, 369 U.S. 350 (1962)....................... 18

United States v. Peters, (US) 5 Cranch 115, 3 L.Ed. 53 11 
United States v. Wallace, 222 F. Supp. 485 (M.D. Ala. 

1963) 15



V

Statutes: p a g e

Constitution of the U. S., Article VI, Supremacy Clause
2,10

28 U.S.C. §1253 .............................................................. 2, 4,17

28 U.S.C. §2281 .................................................... ....... 5,10,17

28 U.S.C. §2283 .......      14

28 U.S.C. §2284 .................................................................. 5

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

Other Authorities :

1A Moore’s Federal Practice............................................  14

Rule 16, Rules of the Supreme Court of the United 
States ...............................................................................  1



I n th e

Bnpnmt (Emtrt of %  lotted States
October Term, 1970 

No. 498

North Carolina State B oard of E ducation, et al.,

Appellants,
v.

James E. Swann, et al.,
Appellees.

o n  a p p e a l  f r o m  t h e  u n i t e d  s t a t e s  d i s t r i c t  c o u r t  

FOR T H E  W ESTERN  D ISTRICT OF N O R T H  CAROLINA

MOTION TO AFFIRM OR DISMISS

Appellees, pursuant to Rule 16 of the Rules of the Su­
preme Court of the United States, move that the final judg­
ment and decree of the district court be affirmed on the 
ground that it is manifest that the questions are so unsub­
stantial as not to warrant further argument, or, in the 
alternative, to dismiss the appeal herein on the ground 
that it is not within the jurisdiction of the Court.

Opinions Below

The opinion of the three-judge district court is reported 
as Swann v. Charlotte-Mecklenburg Board of Education 
(also Moore v. Charlotte-Mecklenburg Board of Educa­
tion), 312 F. Supp. 503 (W.D. N.C. 1970).



2

Jurisdiction

Appellees submit that the Court does not have juris­
diction of a direct appeal pursuant to 28 U.S.C. §1253 
because the case is not a “ civil action, suit or proceeding 
required by any Act of Congress to be heard and deter­
mined by a district court of three judges” (emphasis 
added). Appellees’ argument in support of the contention 
that a three-judge court was not required appears infra 
in Argument II.

Questions Presented

1. Whether the judgment below may be affirmed on the 
ground that N.C. Glen. Stat. §115-176.1 was an unconsti­
tutional legislative attempt to nullify rights of the appel­
lees under a prior judgment of a United States District 
Court, and that the state statute thus violates the Suprem­
acy Clause of Article VI of the Constitution of the United 
States.

2. Whether the court below was correct in determining 
that portions of N.C. Gen. Stat. §115-176.1, known as the 
anti-bussing law, are unconstitutional because they inter­
fere with a school board’s performance of its affirmative 
constitutional duty under the equal protection clause of 
the Fourteenth Amendment to eliminate racial segregation 
in the public schools.

3. Whether the appeal should be dismissed on the ground 
that no direct appeal from the district court is provided 
where the case was not one required to be heard by a dis­
trict court of three judges since:

(a) the case involves an issue under the Supremacy 
Clause (the conflict of a state law with a prior federal



3

court order) and thus no three-judge court is required 
under the doctrine of Swift <& Co. v. Wickham, 382 U.S. 
I l l  (1965); and

(b) numerous prior decisions of this Court make it plain 
that the statute is unconstitutional and thus no three-judge 
court is required under the doctrine of Bailey v. Patterson, 
369 U.S. 31 (1962).

Statement

Introduction

This is a direct appeal by the North Carolina State Board 
of Education and a group of state officials1 from the order 
of a three-judge district court ruling that a portion of 
N.C. Ben. Stat. §115-176.1, known as the anti-bussing law, 
was unconstitutional because it interfered with the affirma­
tive duty of local school boards under the Fourteenth 
Amendment to desegregate the public schools. A companion 
appeal involving the same judgment is also pending here 
as No. 444, O.T. 1970, sub nom. Moore v. Charlotte-Mecklen­
burg Board of Education. The proceeding in the three- 
judge court was an ancillary proceeding connected with the 
school desegregation case involving Charlotte-Mecklenburg 
which is also now pending here as Swann v. Charlotte-Meck­
lenburg Board of Education, O.T. 1970, No. 281, certiorari 
granted June 29, 1970.

This direct appeal is in an unusual posture in that it 
has been scheduled for argument and briefing, prior to any 
action by the Court on the Jurisdictional Statement. (Order 
of the Chief Justice herein dated August 31, 1970.) Not­

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



4

withstanding this action, appellees believe it appropriate 
to file this response to the Jurisdictional Statement because 
we believe the case involves no substantial issues not pre­
viously decided by the Court and because we doubt that 
the necessary jurisdictional requisites for direct appeal are 
present under 28 U.S.C. §1253.

Proceedings during 1969-70 before a Single District Judge

The school desegregation case brought by Negro pupils 
and parents against the Charlotte-Mecklenburg Board of 
Education was commenced in 1965 and there has been ex­
tensive litigation ever since which has culminated in the 
Swann case now pending in this Court. A  full statement 
of the history of the proceedings from 1965 to date is 
contained in Petitioners’ Brief in Swann, No. 281, O.T. 
1970. The case has resulted in numerous reported deci­
sions which are cited in the note below.2

On April 23, 1969, after a plenary hearing, the district 
judg'e rendered a decision and order finding that the school 
system was still unlawfully segregated and directing that 
that defendants file a plan for complete desegregation of 
the system {Swann, swpra, 300 P. Supp. 1358). The court 
specifically directed that the school board consider altering 
attendance areas, pairing or consolidation of schools, trans­
portation or bussing of students and any other method 
which would effectuate a racially unitary system. Exten­
sive litigation ensued as the board submitted a series of 
proposals and the court rejected them as unsatisfactory to 
disestablish the segregated system. In the midst of this

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



5

litigation about the remedy to implement the April 23 deci­
sion, the North Carolina legislature enacted the anti-bussing 
bill proposed by a member of the Mecklenburg delegation. 
The measure which was ratified July 2, 1969, included the 
following two sentences (later held unconstitutional):

No student shall be assigned or compelled to attend 
any school on account of race, creed, color or national 
origin, or for the purpose of creating a balance or 
ratio of race, religion or national origin. Involuntary 
bussing of students in contravention of this Article is 
prohibited, and public funds shall not be used for any 
such bussing.

Plaintiffs in the Swann case promptly obtained leave to 
file a supplemental complaint which sought injunctive and 
declaratory relief against the above-quoted portion of the 
anti-bussing law; they asked that a three-judge court be 
convened pursuant to 28 U.S.C. §§2281 and 2284 (App. 
No. 281, pp. 460a-479a). However, no three-judge court 
was convened at that time and the court took no action 
on the requests for relief because the school board thought 
that the anti-bussing law did not interfere with the school 
board’s proposed plan to bus about 4,000 black children 
to white suburban schools (306 F. Supp. at 1295).

After further hearings to consider the board’s further 
proposals during the fall of 1969 and the operation of the 
interim plan (which involved bussing black children to 
formerly white schools), the district court finally directed 
that a plan be prepared by the court’s expert consultant. 
The court consultant’s plan was ordered into effect in an 
order entered February 5, 1970, reported at 311 F. Supp. 
265. The February 5 order provides for the alteration of 
some school attendance areas, the creation of certain “ satel­
lite” or non-contiguous zones from which pupils would be 
transported to school, the pairing and clustering of certain



6

schools with the alteration of grade structures, and trans­
portation for pupils who live more than walking distance 
(as determined by the board) from the school to which 
they are assigned. The pairing and clustering of 10 black 
and 24 white elementary schools will result in pupils of 
both races being transported to schools which were for­
merly segregated. The district court made extensive sup­
plemental findings about the amount of transportation re­
quired and its relation to the large school bus transportation 
system which was already in operation in the community 
(App. No. 281, p. 1198a).

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

Following the order of February 5, 1970, numerous citi­
zens, under the banner of “ Concerned Parents Association,” 
held meetings to protest the order, vowing to defy, delay, 
obstruct and in any way prevent its implementation. On 
January 30, 1970, they filed a proceeding in the Mecklen­
burg County Superior Court (Harris v. Self) and obtained 
an ex parte temporary restraining order, purportedly pre­
venting the superintendent from paying the fees and ex­
penses of the corrrt consultant as directed on December 2,
1969. They filed an amended complaint on February 12,
1970, in the Mecklenburg County Superior Court and ob­
tained an amended temporary restraining order which en­
joined the Charlotte-Mecklenburg Board of Education from 
expending any money for the purpose of purchasing or 
renting any motor vehicle or operating or maintaining such 
for the purpose of involuntarily transporting students in 
the Charlotte-Mecklenburg school system from one school 
to another and from one district to another. The order 
entered by the Mecklenburg Superior Court on January 30, 
1970, was modified to permit payment of the court con­
sultant on approval of the Board of Education.



7

On February 11, 1970, Governor Robert W. Scott issued 
a public statement to the effect that North Carolina General 
Statute §115-176.1 prohibited the involuntary bussing of 
students, that he had taken an oath to uphold the laws of 
the State of North Carolina, and that he was directing all 
officials to enforce this statute. On February 12, 1970, 
Governor Scott instructed the Director of the Department 
of Administration that “use of public funds for providing 
bus transportation shall be strictly in accordance with the 
appropriations made by the 1969 General Assembly, and 
for no other purpose. No authorization will be given for 
use of any other funds to provide bussing to achieve school 
attendance for the purpose of creating a balance or ratio, 
religion or national origins” (sic.). Copies of the letter 
were forwarded to Dr. A. Craig Phillips, the Superin­
tendent of Public Instruction; Dr. Dallas Herring, Chair­
man of the State Board of Education; Mr. A. C. Davis, 
the Controller of the State Board of Education; and Mr. 
Tom White, Chairman of the State Advisory Budget Com­
mission. Shortly thereafter, Dr. A. Craig Phillips issued 
a similar statement and further advised that he was op­
posed to bussing. On February 23, 1970, he wrote to Dr. 
William S. Self, Superintendent of the Charlotte-Mecklen- 
burg Schools and advised, “ No additional State funds will 
be allocated to the Charlotte-Mecklenburg Board of Educa­
tion to provide bussing of students for the purpose of 
creating a balance or ratio of students in the schools.” 
On the same date, Mr. A. C. Davis directed a memorandum 
to the superintendent of each local school system in the 
State advising that the General Assembly had appro­
priated funds for the operation of 9,510' buses during the 
1969-70 school year and 9,635 buses during the 1970-71 
school year. The memorandum advised that approximately 
9,443 buses were presently in use and that, “The appro­
priation does not include funds for the transportation of



8

thousands of additional students and the operating costs 
of hundreds of additional buses which might be made neces­
sary by the reorganization of schools. No additional State 
funds will be allocated to school administrative units to 
provide bussing of students for the purpose of creating 
a balance or ratio of students in schools.”

On February 13, 1970, plaintiffs moved the court (App. 
No. 281, p. 840a) to add as additional parties-defendant the 
Governor of the State; Mr. A. C. Davis, Controller of the 
State Board of Education; the Honorable William K. 
McLean, the Superior Court Judge who issued the tem­
porary restraining order, each plaintiff in the Superior 
Court proceeding and their attorney. Plaintiffs also asked 
the court to add as additional parties-defendant the Honor­
able James Carson who initially proposed the statute here 
in question and who had made several public statements 
of his intention to file a proceeding in the state court to 
enjoin the school board from complying with the Feb­
ruary 5, 1970, order of the court. Plaintiffs further sought 
an injunction against the enforcement of the state court 
restraining order as modified on February 12, 1970, and 
to enjoin the defendants from further interference with 
the implementation of the orders of the district court.

On February 20, 1970, the resident district judge entered 
an order reciting the various events and requesting that 
the Chief Judge of the Circuit designate a three-judge 
district court (App. No. 281, p. 845a). A  three-judge court 
was designated on February 24, 1970, and additional par­
ties were added by order of February 25, 1970 (App. No. 
281, p. 901a).

Meanwhile, on Sunday night, February 22, 1970, approxi­
mately 50 adults on behalf of themselves and their children 
filed another proceeding (Moore v. Gharlotte-Mecklenburg 
Board of Education) in the Mecklenburg County Superior



9

Court seeking to restrain desegregation of the Charlotte- 
Mecklenburg schools as directed by the district court. At 
10:16 p.m. on that Sunday night, the Honorable Frank 
Snepp issued an ex parte temporary restraining order en­
joining the Charlotte-Mecklenburg Board of Education and 
its Superintendent

from instituting or implementing or putting* into oper­
ation or effect, or expending any public funds upon, 
any plan or program under which children in the City 
of Charlotte or Mecklenburg County are denied access 
to any Charlotte-Mecklenburg public school because 
of their race or color or are compelled to attend any 
prescribed Charlotte-Mecklenburg public school be­
cause of their race or color.

On Thursday, February 26, 1970, the board removed the 
Moore case to the United States District Court. At a spe­
cial meeting of the board on Friday, February 27, 1970, 
the board chose to comply with the order of the state court 
rather than the orders of the federal district court. The 
Superintendent announced that all planning and activities 
then underway for implementation of the district court’s 
order of February 5, 1970, were terminated. On the same 
date, plaintiffs moved the court to add the plaintiffs in 
the Moore case, their lawyers and the Honorable Frank 
Snepp as additional parties-defendant in this case. Plain­
tiffs further sought an order enjoining the enforcement of 
the state court order and enjoining any further efforts by 
all of the defendants from taking steps which would prevent 
or inhibit the implementation of the orders of the district 
court. Plaintiffs also sought an order finding all members 
of the Charlotte-Mecklenburg Board of Education and its 
Superintendent in contempt and imposing a fine or im­
prisonment for each day that the defendants failed to 
comply with the court’s orders.



10

The district court on March 6, 1970, entered an order 
decreeing that the order by Superior Court Judge Snepp 
in the Moore case “is hereby suspended and held in abeyance 
and of no force and effect pending the final determination 
by a three-judge court or by the Supreme Court of the 
issues which will be presented to the three-judge court on 
March 24, 1970” (App. No. 281, pp. 925a-927a). The three- 
judge court eventually ruled in an opinion dated April 28, 
1970, that the challenged portions of the anti-bussing law 
were unconstitutional in violation of the equal protection 
clause of the Fourteenth Amendment and the Supremacy 
Clause of Article VI of the Constitution (312 F. Supp. 
503, 510). The initial opinion denied injunctive relief and 
granted only a declaratory judgment. However, this por­
tion of the original opinion was withdrawn3 and the court 
enjoined all of the parties in the Swarm and Moore cases 
from “ enforcing, or seeking the enforcement of” the uncon­
stitutional portion of N.C. Gen. Stat. 115-176.1.

Although plaintiffs Swann, et al. originally sought a 
three-judge court, they subsequently urged upon the dis­
trict court that it was empowered to act on the matter as 
a single judge and that a three-judge court was not re­
quired by 28 U.S.C. §2281 because of the doctrine of Sivift 
<& Co. v. Wickham, 382 U.S. I l l  (1965), and Bailey v. Pat­
terson, 369 U.S. 31 (1962). The three-judge court rejected 
these arguments that a three-judge court was not required.4 
(312 F. Supp. 503, 507.)

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

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



11

A R G U M E N T

It
The Case Presents No Substantial Questions Not Pre­

viously Decided by This Court.

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

It is manifest that the challenged provisions of the -anti­
bussing- law, which forbid the consideration of race in the 
assignment of pupils, and forbid their being “involuntarily 
bussed” attempt to nullify the April 23, 1969, order of the 
United States District Court requiring the desegregation 
of the public schools in the Charlotte-Mecklenburg system. 
The anti-bussing law is a bald attempt to legislatively re­
peal the judgment of a court of the United States deciding 
rights of litigants under the Constitution and laws of the 
United States. The district court order required, inter alia, 
the implementation of plans to reassign pupils so as to 
eliminate racially segregated schools and the consideration 
of the use of transportation facilities to effect that purpose. 
The effect of N.C. Gen. Stat. §115-176.1 is to forbid the 
school board from engaging in affirmative steps to bring 
about racial integration of the schools and eliminate the 
dual system established under the compulsion of state segre­
gation laws.

This Court unanimously rejected such an assertion of 
state power to set aside a federal court decree in an historic 
opinion by Chief Justice John Marshall delivered on Feb­
ruary 20, 1809, and such assertions have been emphatically 
rejected ever since. In United States v. Peters, (US) 5 
Cranch 115, 136, 3 L.Ed. 53, 59, it was stated:



12

If the legislatures of the several states may, at will, 
annul the judgments of the courts of the United States, 
and destroy the rights acquired under those judgments, 
the constitution itself becomes a solemn mockery, and 
the nation is deprived of the means of enforcing its 
laws by the instrumentality of its own tribunals. So 
fatal a result must be deprecated by all; and the people 
of Pennsylvania, not less than the citizens of every 
other state, must feel a deep interest in resisting prin­
ciples so destructive of the Union, and in averting 
consequences so fatal to themselves.

In recent years there have been a number of attempts 
by state officials to nullify decrees of the federal courts 
requiring implementation of this Court’s decisions in Brown 
v. Board of Education, 347 U.S. 483 (1954), and Brown v. 
Board of Education, 349 U.S. 294 (1955). The most serious 
such attempt prompted a unanimous opinion of all the 
Justices of the Court in 1958 in Cooper v. Aaron, 358 U.S. 
1, 18 (1958) : “No state legislator or executive or judicial 
officer can war against the Constitution without violating 
his undertaking to support it.”

Ever since Cooper v. Aaron, the Court has disposed of 
similar contentions in per curiam decisions nullifying ef­
forts at legislative interposition and nullification of deseg­
regation decrees of the lower federal courts. Bush v. Or­
leans Parish School Board, 187 F. Supp. 42 (E.D. La. 
1960; three-judge court), stay denied, 364 U.S. 803, judg­
ment affirmed, Orleans Parish School Board v. Bush, 365 
U.S. 569 (1961); Bush v. Orleans Parish School Board, 
188 F. Supp. 916 (E.D. La. 1960; three-judge court), stay 
denied, sub nom. United States v. Louisiana, 364 U.S. 500 
(1960), judgment affirmed, 365 U.S. 569 (1961); Bush v. 
Orleans Parish School Board, 190 F. Supp. 861 (E.D. La. 
I960; three-judge court), judgment affirmed, New Orleans



13

v. Bush, 366 U.S. 212 (1961); Bush v. Orleans Parish School 
Board, 191 F. Supp. 871 (E.D. La. 1961; three-judge court), 
judgment affirmed, sub nom. Legislature of Louisana v. 
United States, 367 U.S. 907 (1961) and Benny v. Bush, 
367 U.S. 908 (1961); Bush v. Orleans Parish School Board, 
194 F. Supp. 182 (E.D. La. 1961; three-judge court), judg­
ment affirmed, sub nom. Tug well v. Bush, 367 U.S. 907 
(1961) and Gremillion v. United States, 368 U.S. 11 (1961); 
Lee v. Macon County Board of Education, 267 F. Supp. 458 
(M.D. Ala. 1967; three-judge court), affirmed, sub nom. 
Wallace v. United States, 389 U.S. 215 (1967); Hall v. 
St. Helena Parish School Board, 197 F. Supp. 649 (E.D. 
La. 1961; three-judge court), judgment affirmed, 368 U.S. 
515 (1961); Poindexter v. Louisiana Financial Assistance 
Commission, 275 F. Supp. 833 (E.D. La, 1967; three-judge 
court), judgment affirmed, 389 U.S. 571 (1968); Poindexter 
v. Louisiana Financial Assistance Commission, 296 F. Supp. 
686 (E.D. La. 1968; three-judge court), judgment affirmed, 
sub nom. Louisiana Education Commission for Needy Chil­
dren v. Poindexter, 393 U.S. 17 (1968); Louisiana Educa­
tion Commission for Needy Children v. U. S. District Court, 
390 U.S. 939 (1968) (prohibition denied); Brown v. South 
Carolina State Board of Education, 296 F. Supp. 199 (D. 
S.C. 1968; three-judge court), judgment affirmed, 393 U.S. 
222 (1968).

The decisions of the district court in this case to require 
the further desegregation of the schools and to require 
the use of bussing and other techniques were of course not 
final until appropriate appeals were exhausted. But rather 
than resorting to appeals in due course, the state officials 
in North Carolina engaged in discreditable attempts to 
review and nullify the judgments of the district court by 
resort to state legislative, executive and judicial actions. 
These assertions of power were sought to be justified by 
arguments that decisions of the district court need not be



14

obeyed and were not lawful until upheld by this Court. 
Such a premise must be emphatically rejected, as it was 
in the Bush case:

From the fact that the Supreme Court of the United 
States rather than any state authority is the ultimate 
judge of constitutionality, another consequence of equal 
importance results. It is that the jurisdiction of the 
lower federal courts and the correctness of their deci­
sions on constitutional questions cannot be reviewed 
by the state governments. Indeed, since the appeal 
from their rulings lies to the Supreme Court of the 
United States, as the only authoritative constitutional 
tribunal, neither the executive, nor the legislature, nor 
even the courts of the state, have any competence in 
the matter. It necessarily follows that, pending re­
view by the Supreme Court, the decisions of the sub­
ordinate federal courts on constitutional questions 
have the authority of the supreme law of the land 
and must be obeyed. Assuredly, this is a great power, 
but a necessary one. See United States v. Peters, 
supra, 5 Cranch 135, 136, 9 U.S. 135, 136. (Bush v. 
Orleans Parish School Board, 188 F. Supp. 916, 925 
(E.D. La. I960).)

The power of the federal district court to stay state 
court proceedings where necessary to “ protect or effectuate 
its judgments” against threatened relitigation in state 
courts is conferred by 28 U.S.C. §2283. See 1A Moore’s 
Federal Practice, 2319-2320, 2614-2616. Such orders re­
straining conflicting state court proceedings have been is­
sued in a number of school desegregation cases. Bush v. 
Orleans Parish School Board, 187 F. Supp. 42 (E.D. La. 
I960; three-judge court), affirmed, 365 U.S. 569 (1961) 
(both the litigants and state judge were enjoined in Bush) •



15

Thomason v. Cooper, 254 F.2d 808 (8th Cir. 1958); Mere­
dith v. Fair, 328 F.2d 586 (5th Cir. 1962; en banc).

Nor does it matter that one of the state officers involved 
is the Governor of the State, for governors are in no dif­
ferent position than other state officials in terms of their 
duty to obey federal court judgments. Sterling v. Constan­
tin, 287 U.S. 378, 393 (1932); Faubus v. United States, 254 
F.2d 797 (8th Cir. 1958), cert. den. 358 U.S. 829; Meredith 
v. Fair, 328 F.2d 586 (5th Cir. 1962); United States v. 
Wallace, 222 F. Supp. 485 (M.D. Ala. 1963); Harvest v. 
Board of Public Instruction of Manatee County, 312 F. 
Supp. 269 (M.D. Fla. 1970).

The appellants’ argument that the State Board o f Ed­
ucation, Superintendent of Public Instruction and other 
state officers are not properly named as defendants is 
plainly without merit for it was undisputed that they 
threatened to interfere with implementation of the de­
segregation order in Charlotte in reliance upon the anti­
bussing law. Furthermore, these state officials share the 
affirmative duty to bring about desegregation of the schools 
with local officials. Godwin v. Johnston County Board of 
Education, 301 F. Supp. 339 (E.D. N.C. 1969); Bryant v. 
State Board of Assessment, 293 F. Supp. 1379 (E.D. N.C. 
1968; three-judge court); cf. Lee v. Macon County Board 
of Education, 267 F. Supp. 458 (M.D. Ala. 1967; three-judge 
court), affirmed, sub nom. Wallace v. United States, 389 
U.S. 215 (1967) (a state-wide school desegregation suit).

The anti-bussing law stands on no different footing than 
the previous attempts to nullify the desegregation orders 
of federal courts revealed in the cases cited above. The 
efforts of state executive, legislative and judicial officers 
to annul the judgments of the United States District Court 
for the Western District of North Carolina in the Char- 
lotte-Mecklenburg school case must be emphatically re­



16

pudiated. As this Court made clear in Cooper v. Aaron, 
358 U.S. 1, 17-19, it has been clearly settled law since 
Marbury v. Madison (US) 1 Cranch 137, 177 that the 
“ federal judiciary is supreme in the exposition of the law 
of the Constitution.” The efforts of state officers in this 
case to nullify the desegregation decrees merit no serious 
consideration by this Court. Those actions were plainly 
blameworthy and discreditable, and the district court was, 
if anything, too mild in not issuing contempt citations or 
condemning the obstructions of its orders in more explicit 
terms. Although the cause has been set for oral argument 
in this Court, we suggest that the case does not merit 
such further consideration.

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

Section 115-176.1 is an attempt to prevent North Caro­
lina school boards from performing their constitutional 
duty to desegregate the public schools. Under Green v. 
County School Board of New Kent County, 391 U.S. 430, 
437-438 (1968), the school boards throughout the State of 
North Carolina are “charged with the affirmative duty to 
take whatever steps might be necessary to convert to a 
unitary system in which racial discrimination would be 
eliminated root and branch.” It is entirely obvious, that 
as the court below held, school boards cannot effectively 
eliminate racial segregation of pupils without considering 
the race of pupils when planning new assignments. It is 
also obvious that they must use the conventional tools of 
school administration, including school bus systems, to 
convert to unitary nonsegregated systems. Section 115- 
176.1 attempts to severely disable North Carolina school 
officials in dealing with state imposed racial segregation. 
As the court below wrote:



17

A flat prohibition against assignment by race would, 
as a practical matter, prevent school boards from 
altering existing dual systems. Consequently, the stat­
ute clearly contravenes the Supreme Court’s direction 
that boards must take steps adequate to abolish dual 
systems. (312 F. Supp. 503, 509-510.)

The decision of the district court holding that the anti­
bussing law violates the equal protection clause is plainly 
correct for the reasons stated in the opinion below (312 
F. Supp. 503, 507-510). The judgment below should be 
summarily affirmed.

II.

The Appeal Should Be Dismissed Because the Case 
Was Not Required to Be Heard by a Three-Judge Court.

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

It is submitted that the Court does not have jurisdiction 
of a direct appeal pursuant to 28 U.S.C. § 1253 because 
the case is not one required by any Act of Congress to be 
heard by a three-judge district courts Jn Swift d  Co. v. 
Wickham, 382 U.S. 111 (1965)t|ftie"' Court held that 28 
U.S.C. section 2281 did not require that a three-judge 
court be convened to decide a claim based on the Su­
premacy Clause of the Constitution that a state law was 
invalid because it conflicted with an Act of Congress. We 
think that there is no sound reason not to apply the Swift 
doctrine and reach the same result in a case such as this 
where a state law is alleged to be invalid under the Su­
premacy Clause because it conflicts with the judgment of 
a court of the United States. We believe that the same 
considerations relating to the efficient operation of the



18

lower federal courts which were held dispositive in cases 
where a state statute must be compared for conflict with 
a federal statute apply equally where the comparison must 
be made between the statute and the decrees of a federal 
court.

In the circumstances of the Charlotte case a federal dis­
trict judge was faced with a series of orders by state 
judges purporting to rely upon a newly enacted state law 
to forbid that which the district judge’s decisions had com­
manded to be done. Similarly, state executive officers, de­
fendants in the case, threatened to defy the federal court 
orders in reliance upon the state law. In such a situation 
the power of the single federal district judge to protect 
his own orders should be entirely clear. There should be 
no need to resort to a three-judge court to put down bla­
tant defiance of a district judge’s orders by state officials.

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

In Bailey v. Patterson, 369 U.S. 31, 33 (1962), this Court 
held that when “prior decisions make frivolous any claim 
that a state statute on its face is not unconstitutional.” 
See also Turner v. Memphis, 369 U.S. 350, 353 (1962); cf. 
Ex parte Poresky, 290 U.S. 30 (1933). We believe that 
these principles apply in this case. For the reasons stated 
by the court below in its opinion the challenged portions 
of the ahti-bussing law are plainly in conflict with this 
Court’s decision in Green v. County School Board of New 
Kent County, 391 U.S. 430 (1968). This conflict was open 
and obvious. Indeed, it was plainly intended. The state 
legislature sought to insulate a freedom of choice basis 
for desegregation from federal court attack notwithstand­
ing this Court’s decision that free choice plans may be 
constitutionally inadequate. The legislature openly sought 
to prevent the school board from taking effective action



19

to disestablish the dual system. A three-judge court should 
not be required to deal with such a patent evasion of the 
Brown decision after sixteen years of such experimenta­
tion with disobedience. Efforts to obstruct Brown should 
be dealt with in the most efficient manner possible with­
out the necessity of convening three-judge courts.

CONCLUSION

For the foregoing reasons it is respectfully submitted 
that the judgment below should be affirmed, or, in the al­
ternative, that the appeal should be dismissed.

Jack Greenberg 
James M. Nabrit, III 
N orman J. Chachkxn 

10 Columbus Circle 
New York, New York 10019

J. L eV onne Chambers 
A dam Stein

Chambers, Stein, Ferguson & Lanning 
216 West Tenth Street 
Charlotte, North Carolina 28202

C. 0. Pearson

203% East Chapel Hill Street 
Durham, North Carolina 27702

Attorneys for Appellees



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