Amicus Curiae Brief of Mrs. H.W. Cullen, Ed H. Franklin and J.W. McCullough, Jr.

     [||b6ead8ce-0ba8-4055-871d-cefa1cee4d9d||] ® » 

IN THE SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1970 

No. 281 

JAMES E. SWANN, ET AL, ) 
) 

Petitioners ) 2 

VS. ) 
) 

CHARLOTTE-MECKLENBURG BOARD ) 
OF EDUCATION, ET AL, ) 

) 
Respondents ) 

AMICUS CURIAE BRIEF OF MRS. H.W. CULLEN, 
ED H, FRANKLIN and J.W. McCULLOUGH, JR. 
  

Mrs. B.W, Cullen 
Ed H¢ Franklin 
JW. McCullough, Jr. 
3830 Richmond Avenue 
Houston, Texas 77027 

OF COUNSEL: 

Joe H. Reynolds 
Mark Wells White, Jr. 
134C Tenneco Building 
Houston, Texas 77002 

 



AUTHORITY TO FILE 

INTEREST 

QUESTIONS PRESENTED 

FIFTEEN YEARS AFTER BROWN 

THE PHENCMENA OF RESEGREGATION 

SOLUTIONS 

CONCLUSIONS 

 



   
IN THE SUPREME COURT OF THE UNITED STATES 

      

    
    

OCTOBER TERM, 1970 

       
281 

  

NO. 

  

   JAMES E. SWANN, ET AL 

Petitioners 

VS. 

CHARLOTTE-MECKLENBURG 

BOARD OF EDUCATION, ET AL 

Respondents D
D
 
O
D
 

C
P
 

D
y
 
D
D
 

      

   
   

  

AMICUS CURIAE BRIEF OF MRS. H. W. CULLEN, 

ED H. FRANKLIN AND J. W. McCULLOUGH, JR.      

  

    

AUTHORITY TO FILE    

  

All parties having consented, this Amicus Curiae Brief           
is filed in behalf of Mrs. H. W. Cullen, Ed H. Franklin and J. W.     

  

McCullough, Jr., three members of the Board of Education of the Houston      
Independent School District, Houston, Texas.    
    

  

INTEREST 

     The Houston Independent School District operating more 

    than 225 schools and housing more than 230,000 pupils is the sixth     
largest school district in the United States. As such, the patrons of     
that school district are exceedingly interested and concerned with the   



  

outcome of this cause inasmuch as it will undoubtedly affect the Houston 

Independent School District. 

QUESTIONS PRESENTED 

1. Is Court-enforced integration a permanent solution for the 

accomplishment of school desegregation? 

9 Does the Constituion of the United States require sdiool 

districts to consider race in student assignment? 

3. Does the Constitution of the United States require school 

districts to be color blind in the assignment of studens ? 

FIFTEEN YEARS AFTER BROWN 

Fifteen years after the Brown decision, the status of 

desegregation in public schools is more chaotic than at any time in 

history. Education has become secondary and racial mixing for the 

purpose of racial mixing would now appear to be the order of the day. 

All such artificial concepts of racial mixing not only create hostilities that 

produce prejudice, but also bring education within the classroom to a stand- 

still. The purposes of public schools are in danger of being lost. 

THE PHENOMENA OF RESEGREGATION 

It was argued before this Court in the Gould, Arkansas 

case that the pairing of two schools in the Gould community would bring 

about the resegregation and creation of a black school district. Since 

the Court order, this has come to pass. Moreover, it is seen partiailarly 

in large urban areas that this phenomena is an even greater problem. 

 



  

       
    

    In Washington, D. C., the enrollment in public schools 

This is not integration.     has reached the staggering figure of 94% Negro. 

    This type of resegregation has occurred in many 
This is segregation. 

    
Experts advise that when a 

    urban centers throughout the United States. 

particular school reaches 40% Negro, in three years it will become 90% 

    
The Court decisiors that force artificial assignments upon school 

    Negro.     
The Court decisions polorarize communities     children accelerate the change.     

For example, among the     and engender hostilities and downgrade education. 

    
under court-ordered pairing     Houston schools, under a court-ordered plan, 

    
% Negro students. It is     and zoning, many schools have in excess of 80 

  

     gs situation. Reason     
unrealistic to believe that the whites will remain in thi 

    
Those whites who can will moe.     tells us that this is temporary. integration.     

Washington, D. C. has taught us that. The bussing of children to achieve 

    
racial balance triggers the moving of residences. The pairing and zoning 

    
of students whereby they are assigned miles from their homes, rather than 

    
across the street, gladdens the hearts of apartments owners in nearby       

ons of the past fifteen years hawe     districts. As a result court decisi       
been selfdefeating. Instead of bringing about a school system that is       
neitiier white nor colored, court decisions have brought about the exact       

black     
opposite result. The result of forced integration is creating 

    

   

  

schools.     
Statistics show that in the Houston     People are mobile.     

27% of the students move annually. Houston     Independent School District,



is a city of apartments. Consequently, when Court orders the artificial 

assignment of students people move. 

School districts neighboring the Houston School District 

are showing a phenomenal increase in scholastics. One neighboring 

district showed an increase last year of over 400%. Another neighboring 

district showed an increase of over 25% in the last three years. Other 

s chool districts surrounding Houston are growing by leaps and bounds. 

At the same time the number of white students living in the inner city 

of Houston dramatically decreased over the past five years. 

John Fischer of Columbia College wrote that pairing on 

the periphery of the ghetto produces temporary racial desegregation. 

We think that it can be safely stated that court-enforced integration 

produces only a temporary racial desegregation. Over the long pull 

forced integration accomplishes resegregation. Another result of court 

forced integration is the increase of private schools. Two years ago 

in the Houston School District, over 20,000 students went to private or 

parochial schools. Since that time additional schools have sprung up and 

all private schools within the Houston District are bursting at their 

“seams. Those who can have enrolled their children in the private schools. 

Again without fear of contradiction, it can be said that this is a result 

of court-forced integration.  



  

         

    
It can be safely stated on the basis of fifteen years of    

experience that sociological problems inherent in integration will never       
be resolved by the courts. Unless and until the courts recognize that     

      voluntary desegregation is the only means of achieving integration, the 

blems will forever remain on the dockets of the courts.     sociological pro     
The problem of desegregation PW comparisons to pro-     

hibition. This court cannot legislate nor adjudicate people's morals or     
prejudices. When it comes to school children, the parents want the     
very best for their children. Consequently, the only means of getting     
parent approval, which is absolutely necessary for public education, is       
a voluntary system. Without coming or arriving at such a decision, the     
courts can be certain of having their dockets cluttered with cases that seek 

        to force parents to do what they are not going to do. 

SOLUTIONS    

  

   
   

  

Any objective study would show that pairing and bussing are 

temporary measures. The only meaningful desegregation that has ocaurred 

      
  Pairing    has been a result of voluntary action on the part of the parents. 

  

     and bussing are not educational tools. Pairing and bussing are court-invented     
methods of desegregation and integration. These devices have been utilized     
because the courts have taken the position that the school districts should      
     not be color blind. These means thought not educational tools have been         

It is this same forced integration     used to justify the results of integration. 

that has resulted in the resentment and feeling of lack of fairness on the 

      part of the courts.



At one time it was Hornbook that the Constitution was 

color blind. No one can object to such a concept. No one an claim 

that being color blind is unfair. Being color blind necessitates the 

ignoring of waste. Being color blind promotes education and downgrades 

bitterness and hostility. With the removal of hostility and bitterness 

voluntary integration can and will work, 

The only plan which has a chance to work on a permanent 

basis is a freedom of choice plan. We are not unmindful that this court 

has previously ruled that freedom of choice is unacceptable unless it 

works (Kent County). On a permanent basis the court must recognize 
  

that artificial plans and non-educational plans have no hope of working. 

It is inevitable that resegregation will either result or some type of 

voluntary plan of desegregation, such as freedom of choice, must be 

adopted. It is said on many sides that with the happening of resegregation 

Negro parents of the future will demand freedom of choice as a means of 

overcoming racial isolation brought about by artificial courtdans. Without 

the problems of desegregation in the public schools, large urban centers 

have a difficult job of attempting to avoid the black inter-city. The school 

problem accentuates this problem. We submit that a voluntary plan, or a 

freedom of choice plan is the only method that will prevent the creation of 

the black inter-city.  



This court has found freedom of choice objectionable 

because "it doesn't work'. The appraisal of freedom of choice was made 

by this court after some three or four years of experience. It can be 

safely predicted that freedom of choice when given the chance of ten 

years of experience would not only have worked but would have produced 

a quality educational system for all to emulate. Contrarywise, it can now 

be safely predicted that the absence of freedom of choice or a wluntary 

plan of desegregation will cause Washington, D. C. to come to Houston. 

The only objection to freedom of choice is and has been 

that it does not produce a racial mix quickly enough. However, a study 

of progress shows that in a period of three years, the number of Negro 

students in the Houston District attending forenerly all-white schools had 

risen from5% to 20%. This was permanent desegregation. Moreover 

freedom of choice has other attributes that make it more appealing than 

any other plan. Most of all, everybody likes it. The only people who 

object to freedom of choice are those who live elsewhere. Under freedom 

of choice there are none of the problems of assigning children of different 

learning ability within the same classroom. Under freedom of choice the 

problems of psychological nature developing by reason of a difference in 

economic advantages do not exist. Under freedom of choice the mental 

attitute of students, reflecting the mental attitude of parents, is positive 

and conducive to learning. Freedom of choice should be elastic enough 

to allow minority children guaranteed rights and opportunities to attend school  



¢ 4 

with the majority. Certainly there is no reason why school boards should 

not . open heir institutions to students who come from any part of the city. 

Likewise there is no reason for the courts to punish a school board when 

it chooses to admit students without regard to race or color. 

The law of the land properly calls for an end to desegregation 

but it does not require integration as a means of correcting racial imbalance. 

which is due to residential patterning or other voluntary action of the 

residents in different communities. 

CONCLUSION 

The courts have been seeking to solve the problems of the 

conscience. The time has come to put that burden upon the parents. 

Further implementation of desegregation at the hands of the court is 

going to lead to more segregation. A voluntary plan of desegregation 

will maintain high education and quality education but will at the same 

time permanent integration. Our citizens want a fair deal for every 

race but they do not want governmental power used as a means of correcting 

racial imbalance arising from natural causes. 

Respectfully submitted, 

ATT 
AJoe H. ReynoMs 
  

OF COUNSEL 

Mark W. White, Jr. 

1340 Tenneco Building 

Houston, Texas 77002 [||b6ead8ce-0ba8-4055-871d-cefa1cee4d9d||]