Brief of Cross Petitioners

     [||84e57b23-fe77-437e-8a34-f96594014675||] No. 281 

In The 

Supreme Court of the United States 
OCTOBER TERM, 1970 

  

  

JAMES E. SWANN, ET AL., Petitioners 

Vv. 

CHARLOTTE-MECKLENBURG BOARD OF 

EDUCATION, ET AL., Respondents 

ON WRIT OF CERTIORARI To THE UNITED STATES COURT 

OF APPEALS FOR THE FOURTH CIRCUIT 

MOTION FOR LEAVE TO FILE BRIEF AMICUS 

CURIAE 

AND 

BRIEF AMICUS CURIAE ON BEHALF OF JACKSON 

CHAMBER OF COMMERCE, INC. and JACKSON 

URBAN LEAGUE 

SHERWOOD W. WISE 

925 Electric Building 

Post Office Box 651 

Jackson, Mississippi 39205 

Attorney for 

Jackson Chamber of Commerce, Inc. 

and Jackson Urban League 

WISE, CARTER AND CHILD 

925 Electric Building 

Post Office Box 651 

Jackson, Mississippi 39205 

OF COUNSEL  



INDEX 

Page 

MOTION FOR LEAVE TO FILE BRIEF 

AMICUS CURIAE |... ...... .........0. I 

BRIEF AMICUSCURIAE . . =...  .. . ....... 1 

Questions Presented... . ... ...  ........ 1 

Interest. of Amicus Cutie ..i....¢.t. civ ci thio 1 

ArgUMEnt ow: ii ne Suis a Basing, SL BL EE 2 

Conclusion... ... “00 7.0.) 7 7, 10 

 



I. 

No. 281 
  

In The 

Supreme Court of the United States 
OCTOBER TERM, 1970 

JAMES E. SWANN, ET AL., Petitioners 

Vv. 

CHARLOTTE-MECKLENBURG BOARD OF 

EDUCATION, ET AL., Respondents 

MOTION FOR LEAVE TO FILE BRIEF AMICUS 
CURIAE ON BEHALF OF JACKSON CHAMBER 
OF COMMERCE, INC. AND JACKSON URBAN 

LEAGUE 

NOW COMES Jackson Chamber of Commerce, Inc., a 

non-profit corporation organized and existing under and 

by virtue of the laws of the State of Mississippi, and Jackson 

Urban League, a non-profit corporation organized and 

existing under and by virtue of the laws of the State of 

Mississippi, both having their domicile in Jackson, Hinds 

County, Mississippi, by their attorney, and hereby respect- 

fully move for leave to file the attached brief amicus curiae. 

The consent of the attorneys for the petitioners and the 

respondents has not been obtained. 

These two entities, being both concerned with the wel- 

fare of the community within which they principally operate, 

and being particularly concerned with its economic growth 

and development, find themselves in common accord on one 

matter of particular and vital interest to their community, 

that is — the continued survival and health of the public  



  

II. 

school system in the Jackson, Mississippi, area, and, there- 

fore, are deeply concerned with the issues here presented. 

The issues here have implications extending far beyond 

the particular situation now before the Court. Accordingly, 

these two entities desire the opportunity to present their 

views on this matter to the Court. 

We feel that our contribution should assist the Court 

in setting the problems here presented in a broader context, 

thus ensuring a readier grasp of the grave import its decision 

may have for public school systems throughout the country. 

For the foregoing reasons, the movants respectfully 

request that this motion be granted. 

Respectfully i 

7A WV 

SHERWOOD W. WISE 
925 Electric Building 
Post Office Box 651 
Jackson, Mississippi 39205 

  

  

WISE, CARTER AND CHILD Attorney for Jackson Chamber of 
925 Electric Building Commerce, Inc. and Jackson Urban 
Post Office Box 651 League 
Jackson, Mississippi 39205 

OF COUNSEL 

   



No. 281 

In The 

Supreme Court of the United States 
OCTOBER TERM, 1970 

JAMES E. SWANN, ET AL., Petitioners 

v. 

CHARLOTTE-MECKLENBURG BOARD 

OF EDUCATION, ET AL., Respondents 

ON WRIT OF CERTIORARI TO THE UNITED STATES 

COURT OF APPEALS FOR THE FOURTH CIRCUIT 

BRIEF AMICUS CURIAE ON BEHALF OF JACKSON 

CHAMBER OF COMMERCE, INC. AND JACKSON 
URBAN LEAGUE 

QUESTIONS PRESENTED 

This case presents questions which go to the very heart 

of the survival of the public school systems of this country. 

The questions presented necessarily include the following: 

1. Must a school district adopt a plan of integration 

which demonstratively will result in resegregation? 

THE INTEREST OF JACKSON CHAMBER OF 

COMMERCE, INC. AND JACKSON URBAN LEAGUE. 

The interest of Jackson Chamber of Commerce, Inc. and 

Jackson Urban League, as amicus curiae is set forth on their 

motion for leave to file this brief amicus, to which motion 

this brief is annexed.  



  

2 

ARGUMENT 

A. PRELIMINARY STATEMENT 

These two entities, being both concerned with the wel- 

fare of the community within which they principally operate, 

and being particularly concerned with its economic growth 

and development, find themselves in common accord on one 

matter of particular and vital interest to their community, 

that is — the continued survival and health of the public 

school system in the Jackson, Mississippi area, and have 

agreed to submit to this Honorable Court certain principles 

which they believe if adhered to, would reverse the present 

destructive trends which are taking place not only in the 

Public School System of Jackson, Mississippi, but in all such 

systems in the Nation, and for that reason and in that spirit 

these two entities have come together for the sole purpose of 

presenting to this Honorable Court for its consideration the 

following facts and conclusions. 

B. HISTORICAL REVIEW OF COURT DECISIONS 

In September of 1969, one year ago, schools of this 

district opened under what was basically a “freedom of 

choice” plan. Enrollment showed 18,227 blacks and 20,966 

whites. Today, one year and three court ordered plans later, 

enrollment is 18,396 black and 12,095 white, — a 42.4 per 

cent decrease in the number of whites. The first court order 

last fall ordered a desegregation of staff at the beginning of 

the second semester. On appeal by the NAACP Legal De- 

fense Fund, counsel for the plaintiff, complete desegrega- 

tion of pupils and staff was ordered at the beginning of the 

second semester. The District Judge ordered into effect an 

HEW plan for elementary schools and a plan of his own 

devising for secondary schools. Plaintiffs appealed this order 

   



3 

as to the secondary plan only. In May the Fifth Circuit Court 

of Appeals acted on this appeal, ordering into effect an 

HEW plan for secondary schools. Although there had been 

no appeal, the Fifth Circuit ordered the District Court to pre- 

pare a new elementary plan and ordered the appointment 

of a Bi-Racial Committee to help devise this plan. The Bi- 

Racial Committee did devise a plan and, after hearings, 

this plan was ordered into effect for September. Plaintiffs 

appealed this order and in their brief made this statement: — 

“the district court’s controlling responsibility is to evaluate 

that plan, not in terms of its educational soundness, but in 

terms of its ability to achieve integration.” 

In August, acting on this appeal, the Fifth Circuit 

ordered into effect a plan which basically consisted of the 

pairing and grouping of approximately half the elementary 

schools. The court stated that this was to be temporary and 

the District Court was ordered to hold hearings and to pre- 

pare a new elementary plan for the second semester, making 

the fourth disruption in four semesters. The traditional 

six grade structure for elementary schools has been destroyed 

and we now have seven different grade-structured types of 

elementary schools. The traditional 3-3 secondary structure 

has been destroyed in favor of a 2-1-1-2 structure. 

Under court plans presently in effect, 95% of the 

children in this district will attend six different schools from 

the first to the twelfth grade. In one extreme case, a small 

group of children will go to seven schools in twelve years. 

Or to look at it another way, it is possible for a family with 

seven children to have them in seven different schools. 

Our superintendent, who came to us one year ago from 

a position as Assistant Superintendent in Atlanta, Georgia,  



    

4 

resigned a month ago, stating that his training, experience, 

and conscience would not permit him to be responsible for 

a system over which the court would allow him no control 

and one which he felt had been made educationally and 

administratively unsound. This man’s imagination and ded- 

ication are demonstrated by the fact that this school sys- 

tem was the first in the country to submit a comprehensive 

plan of educational innovation and to receive a grant under 

the 75 million dollar emergency fund appropriated this 

summer. Under state law (dated prior to the Brown deci- 

sion) and reinforced by an opinion from the Attorney 

General of Mississippi, the local school board has no au- 

thority (even if it had the money) to provide intra-city trans- 

portation. 

C. RECENT STATISTICS 

The following statistics demonstrate forcefully and 

without further argument precisely what is taking place in 

the Public School System of Jackson, Mississippi at the 

present time: 

As of September 15, 1969, there were 18,227 black 

students and 20,966 white students in the Public School 

System of Jackson, Mississippi, or a total of 39,193 students 

The percentage ratio at that time was 47% black and 53% 

white. 

On September 18, 1970, there were in the said school 

system 18,396 black students and 12,095 white students, or 

a total of 30,491 students. The percentage ratio at that time 

was 60% black students and 409% white students. 

   



5 

Thus, it can be seen that with the various court orders 

as set out in the historical review above, withdrawals of 

white students have occurred so that from September 15, 

1969, to September 18, 1970, the number of white students 

attending said school system has dropped from 20,966 to 

12,095, while over the same period the black students in 

said system have increased from 18,227 to 18,396. The per- 

centage change over said period of approximately one year 

has been from 47% black students to 60% black students, 

and from 53% white students to 409 white students. 

Thus, it is self-evident that from September 15, 1969, 

to September 18, 1970, a serious drift toward resegregation 

has taken place in the Jackson public school system. 

D. ECONOMIC IMPACT 

A major concern which bears directly on Jackson’s edu- 

cation problems is the slowdown which has occurred in the 

city’s economic development. During the past decade the 

increase in manufacturing employment has only been one 

half of what was needed. 

A critical problem confronting Jackson’s development 

efforts is the school situation. The present instability is pre- 

venting a major manufacturer from locating a badly needed 

large plant in the Jackson area. Neither this company nor 

many of the other firms which might otherwise come to 

Jackson can be expected to move into the area. 

Paradoxically, Jackson’s schools need to be strengthened 

before it will be possible to attract many of the companies  



    

6 

needed to accelerate the area’s economic growth. The need 

for strengthening the schools was recognized by the School 

Board when they employed Dr. John Martin as superinten- 

dent; his capabilities in the curriculum development field 

were a major factor in his selection. And that strengthening 

cannot occur unless economic growth takes place which pro- 

duces the revenues required. Nor can many of the social 

problems which confront the families in the lower economic 

brackets be solved unless more economic development takes 

place. 

We come full circle then. The city’s schools cannot be 

strengthened substantially without a doubling of the area’s 

economic growth rate. The desired economic growth can- 

not take place without significant improvement in the 

quality of Jackson’s schools. Neither improvement of the 

schools nor the desired economic development can take place 

unless the present instability is eliminated and the basic 

problems involved in the integration of the schools can 

be worked out. 

The importance of this impact is not confined to eco- 

nomics alone. It is obvious that an adverse economic im- 

pact on any community brings with it increased social prob- 

lems and burdens. This community at this time is making 

heroic efforts to solve social problems by providing better 

jobs, better housing, and better living conditions for its 

citizens who are in the lower economic echelons. This re- 

quires expenditures of capital. Anything, including the situa- 

tion we are now concerned with, which adversely affects 

the economics of this community will adversely affect the 

efforts now being made to upgrade the living standards of 

those citizens in this community who are in the lower eco- 

nomic brackets. 

   



7 

E. CERTAIN PRINCIPLES 

We are persuaded that from the experiences of this 

community, as well as the experiences of communities all 

over the Nation, certain basic principles have emerged 

which are worthy of serious consideration. 

1 

Prior to the court orders which changed the same, the 

School System of Jackson, Mississippi, operated on what is 

known as 6-3-3 plan. That is, in the district the elementary 

schools consisted of the first six grades, the junior high 

schools consisted of grades seven, eight and nine, and the 

high schools consisted of grades ten, eleven and twelve. 

This system worked well and served the needs of the people 

in the community better than any other system which has 

ever been devised. There were demonstrable educational 

advantages, as the breaks which occurred between the three 

divisions of the system were natural breaks based on age 

and development of the children. There proved to be less 

disruption in the life of the individual child. The possibili- 

ties of major transportation problems were reduced. It is 

our firm belief that a return to the 6-3-3 concept is essential. 

2 

It is our further conviction that if the integration which 

the courts, by their various decisions and orders have de- 

creed, is to be achieved, it must be done in an orderly man- 

ner which will accomplish the courts’ purposes without 

totally wrecking the public school system. In order to ac- 

complish this, it is necessary that the outflow of whites from 

the public schools be reversed or resegregation is certain to 

result. It is probable that this trend can be reversed and  



    

8 

many whites who have fled the public schools will return 

if certain self-evident facts are recognized and are dealt with 

on a realistic basis. 

Experience has shown that depending upon location of 

the area involved when the ratio of black pupils to white 

reaches a certain percentage, resegregation has resulted. For 

each community the resegregation point varies, depending 

upon the very nature of the community itself. Such conse- 

quences have been experienced in numerous American com- 

munities, including Washington, D. C., Philadelphia, 

Pennsylvania, Cleveland, Ohio, and many others. The 

Jackson statistics quoted above confirm the fact that this 

trend is presently being experienced in the Jackson Public 

Schools. 

There are many and obvious deleterious by-products 

of this trend. Support of the public schools is being re- 

duced. As an example, in November of 1969, a bond issue 

for capital expenditures for public schools in the City of 

Jackson was defeated by both black and white votes. It is 

doubtful if any public school bond issue could pass in this 

area at this time. 

Frustration exists in the families of both the black and 

the white communities in the City, and this frustration is 

resulting in further polarization of the races. 

Once the trend begins of the flight of whites from the 

public schools, it can normally be expected to accelerate. 

This statement is based on the experience of this community 

and others as set out above. In this community the private 

   



9 

schools which now exist, many of which have recently come 

into being, are overloaded and are expanding their facilities. 

3. 

Should the principles set out above be adhered to, it 

will then become incumbent upon this community to commit 

itself unreservedly to an innovative system of superior pub- 

lic education. The time gap which will exist between the 

frustrations and disruptions mentioned above and some 

eventual solution to this problem is all important. Steps 

must be taken immediately which will have the effect of 

compensating educationally for these frustrations and dis- 

ruptions during this period. 

This community has shown its commitment to these 

principles in the past. This commitment must continue. In 

fact, if the trend which is now taking place is to be re- 

versed and the public school system of this area is to be 

saved, this commitment must be strengthened and the edu- 

cational processes in the public school system must be en- 

hanced at all levels. There are many things which can be 

done immediately and in the future to bring this about. We 

believe that with a reasonable, sensible and workable ap- 

proach to the overall problem, this community will respond 

affirmatively in bringing about superior public education 

for its children. It is our firm conviction that this should 

be the primary consideration of all of the courts involved, 

and of all the entities and individuals who are in any wise 

affected by this overall problem.  



    

10 

CONCLUSION 

We conclude that stability in the schools which will 

permit them to continue to survive can only be achieved if 

the principles set out herein are adhered to. 

Respectfully submitted, 

For The 

JACKSON CHAMBER OF 

COMMERCE, INC. 

Ac dot ZI Cal ova 
- Pogsident A 
  

    
    Executive Secretary 

For The 

J CKSON URBAN LEAGUE 

pan. ub. 1 Lnech rai | Ms 
President 

ti 24 AO 5% J 

Executive Secretar 
  

  

  

& es Directors 

  

_SHERWOOD W. WisE, Attorney for 
Jackson Chamber of Commerce, Inc. 
and Jackson Urban League 

925 Electric Building 
Post Office Box 651 
Jackson, Mississippi 39205 

WiSE, CARTER AND CHILD 

925 Electric Building 
Post Office Box 651 
Jackson, Mississippi 39205 

October 9, 1970 

   



1 

CERTIFICATE OF SERVICE 

I, Sherwood W. Wise, the attorney for Jackson Cham- 

ber of Commerce, Inc. and Jackson Urban League, amicus 

curiae herein, and a member of the Bar of the Supreme Court 

of the United States, hereby certify that, on the day 

of October, 1970, I served copies of the foregoing Motion 

For Leave To File Brief Amicus Curiae and Brief Amicus 

Curiae on the several parties thereto, as follows: 

    

1. On the petitioners, James E. Swann, et al, by mail- 

ing three copies in a duly addressed envelope, with 

air mail postage prepaid, to their attorney, James 

Nabrit, III, 10 Columbus Circle, New York, New 

Yor: 10019, 

2. On the respondent, Charlotte-Mecklenburg Board 

of Education, et al, by mailing three copies in a duly 

addressed envelope, with air mail postage prepaid, 

to their attorneys, William J. Waggoner, Wein- 

stein, Waggoner, Sturges & Odom, 1100 Barring 

Office Tower, Charlotte, North Carolina and Ben- 

jamin S. Horack, Ervin, Horack & McCartha, 806 

East Trade Street, Charlotte, North Carolina. 

3. On the United States of America, amicus curiae, by 

mailing three copies in a duly addressed envelope, 

with air mail postage prepaid, to its attorney, Erwin 

Griswold, Esquire, Solicitor General, Department 

of Justice, Washington, D. C. 

It is further certified that al} parties required to be 

  

served have been — g/ / 

¢ y 
_SHERWOOD W. WISE 
Attorney for Jackson Chamber of Commerce, 
Inc., and Jackson Urban League 

925 Electric Building 
Post Office Box 651 
Jackson, Mississippi 39205 [||84e57b23-fe77-437e-8a34-f96594014675||]