Charlotte-Mecklenburg Board of Education v. Swann Brief of Cross Petitioners

    (i)

TABLE OF CONTENTS

Page

INTRODUCTORY STATEMENT REGARDING BRIEF ..........  1
OPINIONS BELOW............................................................................  2

JURISDICTION.................................................................................  2
QUESTIONS PRESENTED ............................................................. 3
CONSTITUTIONAL AND STATUTORY PROVISIONS 

INVOLVED...................................................................................... 4
PRELIMINARY STATEMENT........................................................ 4

STATEMENT OF THE CASE ........................................................ 7
SUMMARY OF ARGUMENT ........................................................ 24

ARGUMENT—
I. General Discussion of Constitutional Problems and

Concepts .................................................................................  26
A. A Child’s Constitutional Right Guaranteed by 

the Fourteenth Amendment Is To Go to School 
in a Unitary System. If the School Is Part of 
Such a System, He Has Been Accorded that
Right . .................      26

B. A Unitary System Is One Within Which No 
Child Is Excluded from any School Because of 
Race. If a Desegregation Plan Promises Realis­
tically To Accomplish This, It Is Constitutionally 
Acceptable Notwithstanding a Residue of Pre­
dominately Black or White Schools that Remain
for Reasons Unrelated to Race......................................... 28

C. A “Rule of Reason” Rather than a “Rule of 
Absolutes” Should be the Standard by Which To
Judge the Sufficiency of a Desegregation P la n ..........  32

D. The Distinction Between De Facto and De Jure 
Is Not a Valid Standard by Which To Determine
Whether a School System Is U nitary .............................. 41

E. The Constitution Does Not Require Racial Balanc­
ing in Schools or Bussing of Children Outside 
Geographic Attendance Zones To Effect Such Bal-



1

ancing. Balancing and Compulsory Bussing In­
fringe on the Personal Rights and Liberties of the 
Children Involved .......................................................   48
1. Racial Balancing and the Bussing To Achieve 

It Were the Bases for the Decisions of the
Trial Court and Court of Appeals .......................... 48

2. Racial Balancing and Compulsory Bussing 
Required by the District and Circuit Courts 
Violate the Constitutional Rights of the
Children Involved ..................................................  52

3. A Neighborhood Plan Fairly Administered
Without Racial Bias Satisfies the Constitu­
tional Requirements of a Unitary System......... 56

4. The Compulsory Bussing Approved by the 
Court of Appeals Is Violative of the Provi­
sions of Section 401(b) and 407(a)(2) of the
Civil Rights Act of 1964 [42 U.S.C. 2000c g7
(b) and 2000c-6(a)(2)] Which Expressly 
Prohibits a United States Court To Order 
Transportation To Achieve Racial Balance 
in S chools.................................................................  60

F. Racial Balance—the Harbinger of Massive Court
Involvement in Social Theories ......................................  63

II. Discussion of Constitutional Principles Applied to
Desegregation P lan s.................................................................  69
A. General Statement Regarding Desegregation Plans

Involved in this Case .......................................................  69
B. The Board Plan Converts the Charlotte-Mecklen- 

burg Schools to a Unitary System. The Fourth 
Circuit Joined in the Error of the Trial Court by

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Disapproving that Plan............... .......................................  70
1. The Board Plan Squares With the Conversion

Checklist Prescribed by Green ..............................  70
2. The Board Plan Based on Geographic Attend­

ance Zones Gerrymandered To Achieve 
Maximum Racial Mix Fully Complies with 
Constitutional Requirements for Desegrega­
tion of the Charlotte-Mecklenburg Schools 
and Their Student Bodies............................



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C. The Court Approved Finger Plan Exceeds Consti­
tutional Requirements by Requiring Racial Bal­
ancing and the Bussing To Implement It. The 
Fourth Circuit Joined in the Trial Court’s Errors 
by Disapproving the Board Plan and Misapplying
Its Own Rule of Reason ................................................... 76
1. An Analysis of the Court Approved Finger 

Plan Shows the Racial Balancing Imposed 
Upon the Charlotte-Mecklenburg Schools . . . .  77

(a) Elementary Schools ........................................  77
(b) Junior High Schools ........................................... 78
(c) Senior High Schools ........................................... 79

2. The Court-Approved Finger Plan Is Unrea­
sonable and Proper Consideration Was Not 
Given to the Burdens Which that Plan 
Imposes on the Charlotte-Mecklenburg Sys­
tem ...........................................................................  80

D. The HEW Elementary Plan is Educationally Un­
sound, Requires Racial Balancing, Fosters Reseg­
regation and Is Unreasonable ........................................

E. The Elementary Plan of the Board Minority Is
Incomplete and Unlawfully Exceeds Constitu­
tional Requirements by Requiring Complete Ra­
cial Balancing of Every Elementary School and 
the Bussing To Implement It. The District Court 
Erred in Approving that Plan as a Reasonable 
Alternative ......................................................................  88

F. The Earlier Draft of the Finger Elementary Plan Is 
Incomplete and Unlawfully Exceeds Constitu­
tional Requirements by Requiring Racial Balanc­
ing. The District Court Erred in Approving that
Plan as a Reasonable Alternative ...................................  90

G. In Assessing the Effectiveness of a Desegregation 
Plan, a Rule of Reason Requires that Due Con­
sideration Should be Accorded School Boards and 
Administrators in Controlling the Destiny of
Public Education ............................................................  91

CONCLUSION  ....................................................................  93



Brief Appendix

Statistical Data Relating to the Charlotte-Mecklenburg
Schools and the Board Plan ....................................................... a -1
Maps Showing Desegregation Plans (Filed as Separate 
Appendix):

Board Elementary Plan.............................................................. No. 1
Board Rezoned Elementary Plan (Superimposed Upon

1969-70 Attendance A reas).................................................... No. 2
Court-Approved Finger Elementary P lan ................................ No. 3
HEW Elementary P la n .............................................................. No. 4
Board Minority Elementary Plan .......................................... No. 5
Board Junior High Plan ......................................................... No. 6
Court-Approved Finger Junior High Plan................................No. 7
Board Senior High Plan ......................................................... No. 8
Court-Approved Finger Senior High Plan................................No. 9

TABLE OF AUTHORITIES
Cases:
Alexander v. Holmes, 396 U.S. 19 (1969) .......... .. 12, 28, 29, 30, 61
Baldwin v. State of New York,__ U.S.___ , 90 S.Ct. 1886

(1970)...............................................................................................  38
Bivins v. Bibb County Board of Education, 419 F.2d 1211 

(5th Cir. 1 9 7 0 ) ................................................................................  91
Brinson v. State of Florida, County of Dade, 273 F. Supp.

840, (S.D. Fla. 1967)......................................................................  38
Brown v. Board of Education, 347 U.S. 483 (1954) .passim
Brown v. Board of Education, 349 U.S. 294 (1955) .passim
Building Service Employees International Union v. Gazzam,
339 U.S. 991 (1950) ......................................................................  61

Cooper v. Aaron, 358 U.S. 1 (1958) ........................................... 44; 64
Cox v. Louisiana, 379 U.S. 536 (1965) ........................................  37
Deal v. Cincinnati Board of Education, 419 F.2d 1387, (6th 
Cir. 1969)............................................................................ 31 ,43 ,53 ,58

Deal v. Cincinnati Board of Education, 419 F.2d 209, (6th 
Cir. 1966)........................................................................................... 57

Dennis v. United States, 341 U.S. 494 (1 9 5 1 )............................... 37,40

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(v)

Duncan v. Louisiana, 391 U.S. 145 (1 9 6 8 ) ...................................  37
Ellis v. Board of Public Instruction of Orange County, 423 

F.2d 203 (5th Cir. 1970) ......................... ..................................  31

Gideon v. Wainwright, 372 U.S. 335 (1963) ..............................  38
Gilbert v. Minnesota, 254 U.S. 325 (1 9 2 0 ) ...................................  37
Gitlow v. People of the State of New York, 268 U.S. 652 

(1925)................................................................................................  37
Goss v. Board of Education, City of Knoxville, Tennessee,

373 U.S. 683 (1 9 6 3 )............ .........................................................  7, 64
Goss v. Board of Education, City of Knoxville, Tennessee,

406 F.2d 1183 (6th Cir. 1969) .................................................. 31
Green v. New Kent County, 391 U.S. 430 (1968) ..................passim

Hawthorne v. Lunenburg County, 413 F.2d 53 (4th Cir.
1969) .......................................................................................   10

Meyer v. Nebraska, 262 U.S. 390 (1923) .......... ........................  68
Mohammad v. Sommers, 238 F. Supp. 806 (E.D. Mich.

1964) ...............................................................................................  37

Northcross v. Board of Education, 397 U.S. 232 (1970) ..........  28

Norwood v. Tucker, 287 F.2d 798 (8th Cir. 1961) .  ...............  64
Pierce v. Society of Sisters, 268 U.S. 510 (1925).........................  67
Plessy v. Ferguson, 163 U.S. 537 (1896) .........................  35 ,44 ,45 ,75
Reynolds v. Simms, 377 U.S. 533 (1964)   67
Ross v. Eckels, Houston Independent School District, No.

10,444,___F.Supp.___ (S.D. Texas 1970) .............................. 33, 54

Schenck v. United States, 249 U.S. 47 (1919) ..............................  37
Shelley v. Kraemer, 334 U.S. 1 (1948) ..................................... 47

Sparrow v. Gill, 304 F. Supp. 86 (M.D.N.C. 1969).........................  19
Swann v. Charlotte-Mecklenburg Board of Education, 242 

F. Supp. 667 (1965) ......................................................................  8
Swann v. Charlotte-Mecklenburg Board of Education, 369 

F.2d 29 (1 9 6 6 ) .................................................................... .. 8, 44

Times Film Corporation v. City of Chicago, 365 U.S. 43 
(1961)................................................................................................ 37



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United States v. Greenwood Municipal Separate School 
District, 406 F.2d 1085 (5th Cir. 1 9 6 9 ) ...................................... 31

United States v. Jefferson County Board of Education, 372 
F.2d, 836 (5th Cir. 1966) Affd on rehearing, en banc,
380 F.2d 385 (5th Cir. 1967) ....................  35 ,54 ,5 5 ,6 0 ,6 2 ,6 3 ,6 4

United States v. Montgomery County Board of Education,
395 U.S. 225 (1 9 6 9 ) .............................................    9,14,51

Statutes:
Civil Rights Act of 1964, 42 U.S.C. 2000c(b) and 2000c-6 

( a ) ( 2 ) ......................................................................................4 ,60 ,61 ,62
N.C. Gen. Stat. Secs. 115 et seq.......................................................  53

Other Authorities:
Bickell, The Supreme Court and the Idea of Progress (1970)..........  74

110 Congressional Record, Page 12717, June 4, 1964..........  63
Nations Schools, June 1970, page 100, “Forced Busing 

Vetoed by 90% of Schoolmen”   72
Petitioners’ Brief in Green v. New Kent County, October 

Term 1967, No. 695 .......................................................  57, 59, 64, 65
PROFILE, Metromedia Radio News, February 27, 1970 . . .  58
Racial Isolation in the Public Schools—Summary of a 

Report by the Commission on Civil Rights (1 9 6 7 ) ............. 20, 47, 56
SCHOOL DESEGREGATION: A Free and Open Society,

(116Cong. Rec. §4351, Daily Ed., March 24, 1970).................. 58,91

United Press International Release, May 17, 1970 ....................... 45
21 U.S.L.W. 3164 (1952)...........................................
Webster’s Seventh New Collegiate Dictionary (1967)

64, 74 
35



IN THE

Supreme Court of the United States
OCTOBER TERM, 1970

No. 349

CHARLOTTE-MECKLENBURG 
BOARD OF EDUCATION, et al,

Cross Petitioners,

v.

JAMES E. SWANN, et al,

Cross Respondents.

BRIEF OF CROSS PETITIONERS

INTRODUCTORY STATEMENT REGARDING BRIEF

The briefs submitted in the companion cases Nos. 281 
and 349 are identical. This statement is made so that this 
Court may be spared the inconvenience of a separate detailed 
analysis of both briefs.

Case No. 281 relates to the Petition filed by the plaintiffs 
for a review of the decision of the Circuit Court of Appeals



2

for the Fourth Circuit. Case No. 349 relates to the Cross- 
Petition of the defendants from the same decision. The plain­
tiff’s Petition in case 281 was granted on June 29, 1970. Al­
though action on the defendants’ Cross-Petition has been de­
ferred until the convening of this Court at its October 12, 
Term, 1970, this Court has advised that both cases will be 
heard on October 12, 1970, and has instructed the defend­
ants to file briefs in both cases. The two cases have not been 
consolidated for briefing.

Each of the two cases involves the same school system, 
the same orders of the district court and Circuit Court and 
the same issues. In order to be of as much assistance as possi­
ble to this Court, it is prudent that one comprehensive pre­
sentation shall be made. It is for this reason that, although 
separate briefs are filed, their text and content are the same.

OPINIONS BELOW

The opinions of the courts below are set forth in Brief for 
Petitioners filed in No. 281 on pages 1 through 3 thereof.

JURISDICTION

The judgment of the Court of Appeals for the Fourth 
Circuit was entered on May 26, 1970. The jurisdiction of 
this court is invoked under 28 U.S.C. 1254(1). The Petition 
for Writ of Certiorari was filed in this court on July 2, 1970. 
On August 31, 1970, the Chief Justice deferred action on 
Cross Respondents’ pending Petition for Writ of Certiorari 
and directed filing of briefs and set this case for oral argu­
ment on Monday, October 12, 1970.



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QUESTIONS PRESENTED

1. Did the Court of Appeals join in the error of the trial 
court in rejecting the desegregation plan offered by the Board 
of Education where 68% of the black students would attend 
schools in which their race was in the minority and where 
the remaining 32% of the black students would attend 
schools having white ratios of 17% to 1% and these black 
students would be taught by a predominantly white faculty 
and further where such black students were offered more 
generous freedom of transfer than that offered by the custo­
mary majority to minority transfers?

2. Did the Court of Appeals join in the error of the trial 
court in rejecting the plan for desegregation of the 72 ele­
mentary schools prepared and offered by the Board of Edu­
cation, where the plan left no all-black schools, though nine 
of 72 schools had white ratios of 1% to 17% and black 
students attending those schools would have an untrammeled 
right to transfer to any one of the 63 remaining elementary 
schools, and upon departure from elementary schools would 
be assured of a desegregated education during the remainder 
of their schooling?

3. Did the Court of Appeals join in the error of the trial 
court in rejecting (by the trial court’s offering the Board a 
“Hobson’s choice”) the Board plan for desegregation of 
junior high schools where only one of 21 junior high schools 
would have more than a 39% black student ratio and the 
remaining predominately black school would house 758 
black and 84 white students and have a predominately white 
faculty by imposing a requirement on the Board to create 
nine black satellite districts containing approximately 2,700 
black students and assigning them to predominately white 
suburban junior high schools?

4. Did the Court of Appeals join in the error of the trial 
court in rejecting the Board plan for desegregation of senior 
high schools where the plan provided that no school would 
have more than a 36% black ratio and that each school would



4

have a predominately white faculty and in imposing a fur­
ther requirement upon the Board that 300 black students re­
siding in four designated grids would be bussed a substantial 
distance from the northwestern part of the city to a high 
school serving the extreme southeastern portion of the 
county?

5. Did the Court of Appeals join in the error of the trial 
court in imposing racial balances in junior and senior high 
schools in contravention of Title 42 U.S.C. 2000(c)(b) and 
6(a)(2) (Sections 401(b) and 407(a)(2)) of the Civil Rights 
Act of 1964.

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED

This case involves the equal protection clause of the Four­
teenth Amendment of the Constitution of the United States, 
Section 401(b) and 407(a)(2) of the Civil Rights Act of 
1964 [42 U.S.C. 2000(c)(b) and 6(a)(2)],

PRELIMINARY STATEMENT

The principal question presented by the several appeals 
herein relates to whether or not the Charlotte-Mecklenburg 
public school system may retain one or more predominately 
black schools. If the absolutists are to prevail, then the pre­
sentation which follows is wholly irrelevant. The Court of 
Appeals held that no such absolute requirement exists as 
desegregation of the predominately black schools will be 
adjudged by the “test of reasonableness.”

In order to answer the question, one must have an under­
standing of this school system. The system involves 103 
schools, 4 kindergarten programs and one learning academy, 
which last year served approximately 84,500 students of 
which 29% were black and 71% were white. The system is 
expected to grow by an approximate 3,000 students this



5

school year. In comparison to other school systems in this 
nation, the system ranks 43rd largest.

As an urban school district, it shares the same problem of 
other urban school systems. Since 1954, the black student 
population has increased from 10,000 to 24,000 students and 
during this period eleven formerly all-white schools are now 
almost entirely black (691a). The transition has been rapid. 
In 1965 these eleven schools housed a 35% black student 
population. During the 1969-70 school year, these schools 
housed an 81% black population and the areas in which this 
transition has taken place are located generally in the older 
white neighborhoods. Charlotte has experienced phenomenal 
growth and, therefore, the older neighborhoods are primarily 
located near the center of the city, which serves as the base 
for the expanding black areas as whites on the economic 
move improve their position; blacks improving their position 
take over the white homes. This had led to the transition of 
schools from white to black. Today, 95% of the black stu­
dents reside in the northwestern inner-city quadrant or the 
fringes thereof.

The Board was in the process of combating this problem 
by construction of schools in areas which would offer more 
stable desegregation, the most notable of which were Olym­
pic High School, originally scheduled for construction in a 
predominately black neighborhood, and Randolph Junior 
High which was also scheduled for construction in a similar 
neighborhood (72a-73a).

Further efforts of the Board involved closing and consoli­
dating of twenty schools; creation of a single athletic league; 
nondiscriminatory employment practices; substantial desegre­
gation of school faculties with total desegregation to follow 
for the 1970-71 school year; cross racial assignment of prin­
cipals; appointment of black professionals to ranking admini­
strative positions; board appointment of a black member to 
the Board of Education; elimination of the dual bus system; 
nondiscrimination with respect to teacher salaries, school 
fees, school lunches, library books, instructional materials,



6

quality of school buildings, use of federal funds, course 
offerings and evaluation of students; merger of the black and 
white PTA Councils; operation of specialized and supple­
mentary' programs implemented to increase desegregation; 
redesigning of freedom of choice so that its only effect 
would increase desegregation and give racial stability to the 
schools; gerrymandering of attendance lines to promote 
maximum racial desegregation and other techniques designed 
to create and promote racial stability (681a-683a, 1265a- 
1266a).

The rural areas of the school system do not offer such 
difficult problems in desegregation as the races are scattered 
and, therefore, as with most rural systems, these schools 
present substantial stable desegregation (313a).

Freedom of choice has neither perpetuated nor made sub­
stantial inroads on the desegregation problem. The super­
intendent estimated that approximately 1,200 (565a) white 
students had left predominately black schools where they 
would have been mixed in varying degrees with approxi­
mately 16,000 blacks.

In 1957 Charlotte led the South in opening its schools 
to students of both races. However, it is admitted that there 
were few students who took advantage of this option. Con­
solidation of the city and county systems, the two largest 
in the state, occurred in 1961, creating a school system hav­
ing an east-west span of 22 miles and a north-south span of 
36 miles and comprised approximately 550 square miles. 
The City of Charlotte contains 64 square miles, making it 
larger than the District of Columbia. The county is nearly 
twice the size of the City of New York.

In 1965 a plan was devised by the Board embracing free­
dom of choice, rezoning and non-racial assignment of faculty 
which entirely abolished the former dual system under the 
law as then understood. That plan was approved by the 
district court in 1965 and by the Court of Appeals in 1966. 
The plan led to the abolition of all dual auxiliary programs 
and services, such as transportation, athletic leagues, PTA’s, 
etc.



7

Consistent with racial anonymity, racial identification of 
students and faculty was completely removed from all school 
records. Because of this, during the course of this litigation, 
requests for racial information created a substantial burden 
on the school system in producing this data.

The plan proposed by the Board eliminates 8 of the 17 
predominately black elementary schools, four of the five 
predominately black junior high schools and establishes ten 
senior high schools so that no high school will have more 
than a 36% black ratio. It reduces the number of blacks 
attending predominately black schools to 7,497. (Compare 
district court’s finding of 16,000 previously). Faculties will 
be racially balanced.

These exemplary steps have been taken by a school board 
which petitioners variously label as “recalcitrant,” “contemp­
tuous,” “lawless” and similar characterizations.

STATEMENT OF THE CASE

The plan for desegregation offered to the district court 
by the Charlotte-Meckienburg Board of Education would 
place 68% of the 24,000 black students in predominately 
white schools and the remaining 32% would attend schools 
having a black ratio of 83% to 99%. No other school sys­
tem of similar size and complexity in this nation has the 
degree and volume of desegregation offered by this plan.

The exemplary proposal of the Board was summarily re­
jected by the district court for the reason that this system 
would not be permitted to have a predominately black 
school. The district court therefore ordered racial balancing 
of the schools served by the system.

The present action was instituted in 1965 which resulted 
in the district court’s approval of the plan then offered by 
the Board. The salient features of the plan related to school 
closings, school consolidation, freedom of choice (as sug­
gested by Goss v. Knoxville, 373 U.S. 683 (1963)), rezon­
ing, nonracial assignment of teachers, and nonracial records 
of students. Circuit Judge Craven, then district judge, noted:



8

As a general proposition, it is undoubtedly true that 
one could deliberately sit down with the purpose in 
mind to change lines in order to increase mixing of 
the races and accomplish the same with some degree 
of success. I know of no such duty upon either the 
school board or the district court. The question is 
not whether zones can be gerrymandered for the as­
sumed good purpose of racial mixing, but whether 
gerrymandering occurred for the unconstitutional 
purpose of preventing the mixing of races. I am 
unable to find from the evidence a sufficient show­
ing of the unconstitutional purpose with respect to 
any school zone . . . Swann v. Charlotte-Mecklenburg 
Board o f Education, 242 F. Supp. 667 (1965).

The holding of the district court was affirmed by the Court 
of Appeals for the Fourth Circuit in Swann v. Charlotte- 
Mecklenburg Board o f Education, 369 F.2d 29 (1966).

Following the Supreme Court decision in Green v. New 
Kent County, 391 U.S. 430 (1968), and companion cases, 
the petitioners filed a motion for further relief alleging dis­
crimination in teacher salaries, school plants, facilities and 
numerous other areas, and in addition sought further desegre­
gation. During the course of the hearings conducted in 
March 1969, the district court noted that it was familiar 
with the fact that in this system black teachers as a group 
were paid higher salaries than white teachers for the reason 
that they had longer tenure and had more graduate educa­
tion (93a).

In its order of April 23, 1969, the district court found 
there was no racial discrimination or inequality with ref­
erence to the use of federal funds for special aid to the 
disadvantaged, use of mobile classrooms, the quality of 
school buildings and equipment, coaching of athletics, parent- 
teacher association contributions and activities, school fees, 
school lunches, library books, elective courses, individual 
evaluation of students and gerrymandering (293a-302a).



9

The district court further noted that school location in 
Charlotte had followed residential development including its 
de facto patterns of segregation (305a).

With respect to the motives and judgment of the School 
Board, the district court found that the schools had been 
operating pursuant to . . the general understanding of 
1965 about the law regarding desegregation.” The Board 
had “achieved a degree and volume of desegregation of 
schools apparently unsurpassed in these parts, and have ex­
ceeded the performance of any school board whose actions 
have been reviewed in the appellate court decisions.” The 
schools served by this system were “in many respects models 
for others”, and “the rules of the game have changed and 
the methods and philosophies which in good faith the Board 
have followed are no longer adequate to complete the job 
which the courts now say must be done ‘now’.” (31 la-312a).

The court then concluded:
The school board has an affirmative duty to promote 
faculty desegregation and desegregation of pupils and 
to deal with the program of the all-black schools 
(313a). (Emphasis added)

Thereupon, the district court directed the Board to sub­
mit a plan for complete desegregation of teachers to be effec­
tive for the 1969-70 school year and to submit a plan and 
time table for the desegregation of pupils to be predomi­
nantly effective in the fall of 1969 and completed by the 
fall of 1970 (314a-315a). The plan submitted pursuant to 
the order of April 23 was found inadequate by the district 
court and submission of a new plan by August 4 was di­
rected.

During the interim, this Court decided the case of United 
States v. Montgomery, 395 U.S. 225 (1969), which for the 
first time indicated limited racial ratios in faculty could be 
required by the courts.1 In accordance with Montgomery,

1 In Montgomery, supra, page 236, the court noted: “ . . . Petitioners 
on the other hand, do not argue for precisely equal ratios in every 
school under all circumstances . . . .  As the United States, Petitioner in



10

supra, the Board of Education proposed a plan for desegre­
gation which would produce substantial faculty2 and stu­
dent desegregation for the school year 1969-70 and proposed 
a comprehensive computer-assisted study for the purpose of 
restructuring attendance lines for the year 1970-71. It was 
estimated that the study would require approximately six 
months to complete (487a). On August 15, 1969, the district 
court entered an order (579a) in which it noted the repudia­
tion by the Fourth Circuit of the Briggs v. Elliott dictum on 
July 11 in Hawthorne v. Lunenburg, 413 F.2d 53 (4th Cir. 
1969) (581a). The trial judge found that the Board had 
acknowledged its affirmative duty to desegregate pupils, 
teachers, principals, and staff members at the earliest possible 
date (583a) and had dramatically exceeded its goal in desegre­
gating former all black faculties (584a). It approved the 
reassignment of consenting inner-city black students to out­
lying white schools for the school year 1969-70.3 Further,

No. 798, recognizes in its brief, the district court’s order is designed as 
a remedy for past racial assignment . . . .  We do not, in other words, 
argue here that racially balanced faculties are constitutionally or legally 
required.”

2The Board reported: “With reference to faculty desegregation, 
substantial changes have been made as indicated on Exhibit “A” (498a- 
502a). With few exceptions, schools having black or nearly all black 
students have white faculties ranging from 40 to 50 percent of the 
faculty of such schools. By the school term 1970-71, further faculty 
desegregation will be experienced.” (495a).

3 The Board proposed offering transportation to the reassigned black 
students and made extensive efforts to secure their acceptance of 
reassignment. The court stated:

However, this part of the plan is not compulsory. Students 
who want to remain in the comfort of their area may elect to 
attend the Zebulon Vance School (Irwin Avenue) instead; 
alternatives also are provided for the junior high students. 
(587a).

In response to objections to reassignment of blacks, the district court 
stated:

No legal authority is cited that the Constitution prohibits 
transportation of consenting black children from an inferior 
educational environment into a better environment for the



13

the court approved in principle the proposed restructuring 
of attendance lines and other factors for the 1970-71 school 
year, but rejected them for lack of specific detail and time 
table.4 Results of the desegregation of faculties commended 
by the district court appears in the record (642a-649a).

In view of the fact that it was impossible to complete 
the computer restructuring of attendance lines within the 
time limited, motion was made for additional time in which 
to present the plan. The district court responded by pre­
senting interrogatories to the Board and issuing Its last be­
nign statement on behalf of the Board as follows:

Nearly six months after the original order, faculty 
desegregation is well along and there have been a 
number of substantial improvements in the stated 
policies of the Board, including the stated assump­
tion of the duty by the Board to desegregate the 
schools “at the earliest possible date.” Limited steps

purpose of complying with the constitutional requirement of 
equal protection of laws. (589a). (Emphasis added.)

The Board pointed out that it could not specify the number of students
who might object to such assignments (493a).

Nevertheless, later the district court unjustly condemned the Board 
for not carrying out the plan as “advertised.” (658a). “The perform­
ance gap is wide.” (659a).

At the request of black community leaders, the Board proposed and 
secured a modification to permit substitution of Irwin Avenue Junior 
High School for the Zeb Vance school for black students exercising 
freedom of choice to attend a black elementary school in the inner 
city. The district court denied the Board the opportunity of upgrading 
the education for these black students by imposing restrictions on 
innovative programs for such students unless provided for all blacks 
who transfer to white schools (593a). The Board was forced to 
abandon innovative programs for these blacks as such programs require 
full student participation or segregation of black students in the white 
schools.

4The Board proposed completing the computer restructuring of 
attendance lines within six months or February 1, 1970 (487a). Fur­
thermore, implementation was directed for the school year beginning 
1970-71. (457a and 315a).



12

have been taken toward compliance with pupil de­
segregation provisions of the original order , . . 
(601a).

Pending application for an extension of time, this Court 
announced its decision in Alexander v. Holmes County, 369 
U.S. 19 (1969), and the district court held that as a result 
of Alexander, discretion to grant an extension was prohibited 
(667a). The district court in its November 7, 1969, order 
then proceeded to severely criticize the Board for not imple­
menting its 1969-70 desegregation plan. The district court 
stated “the plan has not been carried out as advertised” 
(658a) and “the ‘performance gap’ is wide” (659a). It is 
difficult to reconcile this criticism in the face of the district 
court’s previous defense of the right of the Board to trans­
port consenting black students to outlying schools and in 
view of faculty desegregation that resulted in precisely the 
figures estimated by the Board (589a and 584a). The dis­
trict court reversed its earlier finding . . Location of 
schools in Charlotte has followed the local pattern of resi­
dential development, including its de facto patterns of segre­
gation” (305a) and substituted “ . . . There is so much state 
action imbeded in the shaping of these events that the re­
sulting segregation is not innocent or ‘de facto’, and the 
resulting schools are not ‘unitary’ or desegregated.” The 
district court further found that freedom of choice had 
tended to perpetuate segregation by allowing children to 
leave schools where their race would be a minority (662a).5 
The district court noted that the school system ranked high 
with reference to desegregation in comparison with the 100 
largest school systems, but held this to be immaterial (664a).

5 The evidence clearly shows that only 1,200 white students had left 
predominately black schools (665a) (housing a total of 16,000 blacks). 
This would therefore appear to fall under the de minimus rule. Com­
pare the limited number of students who sought freedom of choice and 
the infinitesimal effect it had on desegregation for the school year 
1969-70 (635a-638a).



13

For reasons not understood, the attitude of the district 
court changed with increasing frequency to condemnation 
or misconstruction of whatever the Board proposed. It 
assumed that the Board’s computer program, designed to 
promote stability by a 40% limitation on black student assign­
ments, precluded white students from attending predomi­
nately black schools. Obviously, if the computer designed a 
school on a 50/50 ratio, the whites would soon leave the 
attendance district. The Board has no intention of devising 
attendance districts which would offer such instability. 
However, after the best efforts of the computer had been 
exhausted, those white students residing in the ultimate at­
tendance zones populated predominately by blacks, would 
nevertheless be assigned to those schools. The district court 
simply misconstrued one step of the Board plan as constitut­
ing the final plan.

In fairness to the district court and the petitioners, the 
Board on October 19, 1969, gave advance notice that its plan 
would be unable to eliminate each all-black school (665a).6 
The district court, continuing its castigation of the Board, 
said the Board had “demonstrated a yawning gap between 
predictions and performance.” (666a). The court thereupon 
directed the filing of a plan for desegregation ten days later 
on November 17, notwithstanding the fact that the Board 
had reaffirmed February 1, 1970, as the earliest date for 
presentation of a comprehensive plan.

Therefore, faced with this unrealistic time table, the Board 
was compelled to present an admittedly incomplete plan for 
desegregation (670a) and report (680a) in which the Board 
took a strong position for the purpose of attempting to de­
termine the meaning of a “unitary system” and related terms. 
Attention is directed to the fact that the Board predictions 
with reference to desegregation of elementary schools was 
substantially accurate as disclosed by the following:

6At this point, the Board had been admonished to “deal with the 
problem of the all black schools” (313a).



14

Percentage Projected No. Board Final Plan,
Black of Schools No. of Schools

Students Nov. 17, 1969 Feb. 2, 1970

0-10% 21 20
11-40% 44 43
41-100% 7 9

It would therefore appear that the Board performed as 
“advertised”. There was no wide “performance gap” and 
there was no “yawning gap between predictions and per­
formances.” The court was further advised in August that 
the Board plan would be complete approximately the first 
of February 1970, and the Board performed (726a).

On December 1, 1969, the district court again miscon­
strued the computer instructions as being the results of a 
finalized plan. Although the Board proposed that each 
faculty would be predominately white at each school, the 
court seemed to take offense at the fact that there was no 
promise of total balance (700a). Compare Montgomery, 
supra, which countenances schools having 83% black facul­
ties.

In response to the inquiries of the Board, the district 
court outlined some of the parameters of its notions of a 
desegregated system, which included pro rata distribution 
of teachers by race and that “all the black and predominately 
black schools in the system are illegally segregated” (711a 
and 714a). The district court further held that any plan 
should seek to reach a 71-29 ratio so that one school would 
not be racially different from the others though variations 
may be unavoidable (710a). It is believed that the absolutes 
of the district court’s legal position began to crystalize with 
ttiê  order of November 7, 1969.7 This has resulted in the

7In the order of November 7, 1969, and all subsequent orders, 
namely, December 1, 1969, February 5, 1970, March 21, 1970 and 
August 3, 1970, resulted in reversal of facts previously found in favor 
of the Board and many inferences resolved against the Board together 
with misconstruction of many of the facts presented to the court. The 
Board attempted to correct many of the findings by Objections and 
Exceptions thereto (1239a) and Objections and Exceptions to Findings 
of Fact dated August 14, 1970.



15

failure of the court to make any subsequent findings fav­
orable to the Board.

The district court then disapproved the Board’s plan for 
further desegregation and directed desegregation of faculties 
on a three-to-one ratio effective not later than September 1, 
1970, and indicated that a court consultant would be ap­
pointed. This was accomplished by order of the court dated 
December 2, 1969, wherein the court appointed Dr. John 
Finger as the court’s consultant, a witness who had prev­
iously testified on two occasions for the plaintiffs and had 
offered earlier desegregation plans. The order of December 
1 did not suggest implementation of pupil desegregation 
would be advanced to a date earlier than September 1, 1970. 
The Board was invited to continue working on its plan (714a- 
716a).

The Board submitted its completed plan on February 2, 
1970 (726a). The plan utilized computers to achieve a maxi­
mum racial mix of 71% white and 29% black in each school 
where possible by restructuring attendance lines. One hun­
dred (100) of the 103 schools would have a racial mix, leav­
ing only three all-white schools. Sixty-eight per cent (68%) 
of the black students would attend schools having less than 
40% black population. Thirty-two per cent (32%) of the 
black students would attend nine elementary and one junior 
high schools which would have black ratios of 83% to 99% 
under the Board plan (R. Br. A-4-6, A-10). This plan re­
duced the number of blacks in predominately black schools 
from 16,197 to 7,497 and the number of predominately 
black schools from 22 to 10.

The plan for desegregation submitted by the Board in­
cluded imposition of faculty ratios of approximately three- 
to-one, white predominating, in each school and proposed 
implementation of its plan for the school year 1970-71 in 
accordance with the various court orders. The Board plan 
would require the in-district transportation of approximately 
5,000 additional students, who would qualify for such trans­
portation under state law.



16

The court consultant’s plan was submitted contempora­
neously with that of the Board on February 2, 1970, which 
effectively adopted in many respects the Board’s geographic 
zoning plan and engrafted upon it the features of pairing 
of distant elementary schools and creation of satellite dis­
tricts in predominately black inner-city areas whose stu­
dents were assigned to distant predominately white outlying 
secondary schools.

On February 2, 1970, the court conducted a hearing lim­
ited solely to the question of time required for implemen­
tation. It refused to hear any evidence with reference to the 
merits of the two plans before the court. On February 4, 
1970, the Board made a motion for hearing on its plan and 
for the opportunity to examine the court consultant, who 
resides in Rhode Island and beyond the process available 
to the Board. In response thereto, the court permitted a 
short hearing severely limited as to time on the following 
day and declined to direct the consultant to be present for 
examination. The Board was compelled to submit substan­
tial evidence nunc pro tunc (848a-900a).

On the same day, February 5, 1970, the court entered 
its order, in which the court found in part as follows:

The Board plan, prepared by the school staff, relies 
almost entirely on geographic attendance zones, and 
is tailored to the Board’s limiting specifications. It 
leaves many schools segregated. The Finger plan 
incorporates most of those parts of the Board plan 
which achieve desegregation in particular districts by 
rezoning; however, the Finger plan goes further and 
produces desegregation in all the schools in the sys­
tem.
Taken together, the plans provide adequate supple­
ments to a final desegregation order (819a).

Although the court stated “the order which follows is not 
based on any requirement of ‘racial balance’ . . .” (821a), 
the court then adopted the entire plan of the court consul­
tant and thereby directed racial balancing with reference to 
the various schools:



17

A. The Board’s pupil assignment plan for senior high 
schools was approved8 upon condition that 300 black stu­
dents residing in four grids suggested by the court consultant 
would attend Independence High School. Therefore, the 
court consultant’s sole recommendation with reference to 
high schools was approved, although no school under the 
Board plan would house more than a 36% black ratio.

B. With respect to junior high schools, the Board plan 
was approved9 10 upon condition that the only junior high 
school out of 21 which would remain predominately black 
would be desegregated by giving the Board a “Hobson’s 
choice” of furnishing transportation and increasing blacks 
in attendance at several outlying schools and in default of 
rezoning (which had been fully explored), two-way trans­
portation of students (which is cross bussing to which the 
Board is opposed) or closing the junior high school (whose 
classrooms are desperately needed to minimize the already 
serious overcrowding which exists at the junior high level). 
None of the alternatives were accepted. Therefore, the 
Board was directed to implement the court consultant’s plan, 
which provided for establishing nine satellite attendance dis­
tricts (containing 2,760 students) in inner-city black areas 
for attendance at nine distant predominately white suburban 
schools.

C. With respect to elementary schools, the court adopted 
the court consultant’s plan which utilized the Board’s rezon­
ing'0 and engrafted upon it the features of pairing and group­
ing nine inner-city black schools with 24 suburban white

8The Board plan for senior high schools eliminated the one all black 
senior high school, West Charlotte, and established black ratios of 17% 
to 36% for nine of the ten schools. The remaining school, Independ­
ence, would house a 2% black ratio. (748a).

9The Board plan for junior high schools eliminated four of the five 
predominately black schools and the remaining school, Piedmont, 
would have a 90% black ratio or 758 black students (747a).

10The Board plan reduced the number of predominately black 
elementary schools from 17 to 9 (744a-746a).



18

schools, thereby necessitating extensive cross-bussing.11 Ap­
proximately 10,300 students would be involved in the ele­
mentary cross assignments.

The Board plan contemplated transporting only those stu­
dents eligible for transportation under state law which would 
result in furnishing additional transportation to approxi­
mately 5,000 students (871a-875a). The order of desegre­
gation imposed substantial additional transportation require­
ments upon the school system (880a-884a) which were 
compiled by the transportation office of the school sys­
tem as follows:

Finger Plan
Additional Students No. of Buses 

23,000 526
First Year Cost 
$4,199,439.00

Board Plan
Additional Students No. of Buses First Year Cost 

4,935 104 $ 864,767.00
Supplementary findings of the court dated March 21, 

1970, (1217a-l 219a) reflect a finding that transportation as 
ordered by the court would show the following totals:

Court Estimates
Additional Students No. of Buses First Year Cost 

13,300 138 $1,011,200.0012

11 The Board transportation office estimated these students would 
travel fifteen miles each way per day (860a). The district court esti­
mated the school to school distance at seven miles (1261a).

12The district court found that the cost of 138 buses would be 
$743,200.00. The annual operating cost of $532,000.00 was reduced 
by one-half in its order of April 3, 1970 (1259a), resulting in a total of 
$1,011,200. The district court amended its February 5 order by order 
dated March 3, 1970 (921a) to provide that transportation should be 
offered only to those city students who lived in an area which had 
been rezoned as a result of the court order. The Board accordingly 
submitted revised estimates which reduced the requirements for addi­



19

Extensive objections and exceptions (1239a) were filed by 
the Board with reference to the findings of the district court 
dated March 21, 1970, and the Court of Appeals noted that 
it was difficult to furnish reliable predictions with respect 
to transportation estimates (1271a).

On appeal, the Court of Appeals approved the provisions 
of the order of the district court with reference to assign­
ment of faculty and assignment of students to secondary 
schools and reversed and remanded for further considera­
tion the assignment of pupils attending elementary schools 
(1262a). In doing so the Court of Appeals noted that the 
voluntary faculty desegregation of the Board was in com­
pliance with other orders of that court (1 263a). The find­
ing of the district court with reference to residential pat­
terns leading to segregation resulting from federal, state and 
local government action was affirmed on “familiar principles 
of appellate review.”13

tional transportation to 19,285 students and 422 buses at a first year 
cost of $3,406,687.00. Thereafter, State Board of Education, pursuant 
to Sparrow v. Gill, 304 F. Supp. 86 (MDNC 1969) authorized trans­
portation of all city students residing a mile and a half from their 
school. Accordingly, this reinstated the original estimates of the local 
transportation staff.

13In view of the importance of other issues in this case, the Board 
does not deem it appropriate to fully controvert the very shallow and 
incompetent evidence upon which the district court’s findings were 
made on November 7 reversing its prior findings without benefit of 
further evidence or hearing. We would point out several areas. With 
respect to racial restrictive covenants, the only evidence was a 1946 
North Carolina Supreme Court case enforcing such restrictions. Other 
evidence of racial restrictions or the extent thereof is absent from the 
record. Blacks have for many years purchased homes in predominately 
white neighborhoods. Plaintiffs’ evidence (31 a-34a) discloses that rela­
tively small black areas have taken over large white communities. As 
a result, blacks predominated in 11 former all white schools (591a). 
Although older black and white neighborhoods were zoned industrial 
in 1947, no substantial inroads were made in these neighborhoods by 
industry (254a), industrial zoning in residential areas was substantially 
curtailed (254a) and existing zoning generally follows existing land use 
(261a). Urban redevelopment assisted the displaced persons in finding



20

The reforms the Board undertook to create a unitary 
school system were applauded by the Court of Appeals 
(1265a). Noting the district court’s holding “that the Board 
must integrate the student body of every school” (1266a) 
the Court of Appeals gave a partial answer to the unitary 
school question in holding:

. . . first, that not every school in a unitary system 
need be integrated; second, nevertheless, school 
boards must use all reasonable means to integrate 
the schools in their jurisdiction; and third, if black 
residential areas are so large that not all schools can 
be integrated by using reasonable means, the school 
boards must take further steps to assure that pupils 
are not excluded from integrated schools on the basis 
of race . . . (1267a).

The Court of Appeals thereupon adopted . . the test of 
reasonableness—instead of one that calls for absolutes—be­
cause it has proved to be a reliable guide in other areas of 
the law . . (1267a).

Although Piedmont Junior High School was a formerly all 
white facility, and nearly all white in 1965 (25 blacks) 
(691a), the Court of Appeals noted that this school was now 
in the heart of the black residential area (1268a), a school 
which could not be desegregated by rezoning. This school 
precipitated the creation of nine satellite junior high school 
districts for the purpose of eliminating this one predomi­
nately black junior high school.

new homes but had no power to direct the location to which they 
moved (265a). Furthermore, there is no evidence that any citizen was 
so directed. Many other examples could be cited.

It is noted the findings of the district court, although largely unsup­
ported, closely parallel those of the U.S. Commission on Civil Rights 
with respect to separation of races in 75 representative cities scattered 
throughout this nation. Racial Isolation in the Public Schools-  
Summary> Report by the Commission on Civil Rights (1967).



21

The Court of Appeals, utilizing the district court’s un­
realistic transportation estimates, found its approval of the 
secondary portion of the desegregation plan precluded ap­
proval of the elementary plan. The combined plans would 
represent a 56% increase in pupils transported and the num­
ber of buses would be increased by 49%. The Circuit Court 
acknowledged 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 Court of Appeals thereupon vacated the judgment of 
the district court and remanded “. . . the case for reconsidera­
tion of the assignment of pupils in the elementary schools, 
and for adjustments, if any, that this may require in plans 
for the junior and senior high schools.” (1277a).

On remand, the district court had before it five elemen­
tary, two junior and two senior high school plans. An under­
standing of these plans will be facilitated by reviewing the 
separate map appendix to this brief.

Pursuant to the suggestion of the Court of Appeals, the 
Board met with representatives of HEW and sought to par­
ticipate in the development of a new desegregation plan. 
Although the Department of Health, Education and Wel­
fare obtained from the Board all the information it desired, 
it refused to accept the Board offers to assist it in develop­
ing a plan (Tr. 197, July 15, 1970). Nevertheless, the Board 
reconsidered all the techniques of desegregation in an effort 
to develop a new plan (Tr. 10-20, July 15, 1970). After 
presentation ot the HEW plan on June 26, it was reviewed 
by the Board and rejected by a unanimous vote. Neverthe­
less, the Board presented the HEW plan to the district court 
for its consideration.

A hearing was convened on July 15, 1970, at which time 
the district court again reviewed the February 2, 1970 Board 
plan and the February 5, 1970 court approved Finger plan. 
The district judge also considered the HEW plan, a plan pre­
pared by minority of Board members, and an earlier draft 
of a plan considered by the court consultant.



22

The Board and court approved plans have been described 
earlier herein.

The HEW plan’s salient features involved utilization of 
the Board restructured lines and then clustering a group of 
school districts contiguous to each other for specialized grade 
assignment to a particular school, for instance, one school 
might house grades 1 and 2, a second school grade 3, etc. 
Many of the districts involved in these clusters were desegre­
gated by the Board’s rezoning.14

A four-member minority of the Board presented an ele­
mentary plan which utilized the 1969-70 school zones, 
grouped 72 elementary schools within eighteen separate clus­
ters, many of which were far removed from each other. The 
court’s attention is invited to the map (R. Map Appendix), 
which gives a clear picture of what this plan does to the 
elementary schools of the Charlotte-Mecklenburg system. 
It was an obvious successful attempt at racial balancing, as 
all 72 elementary schools would house black ratios ranging 
from 27% to 34%. Students chosen for attendance outside 
their district would be selected on a lottery basis. (R. Ex. 
45, July 15, 1970). Dislocations and transportation require­
ments were essentially equivalent to those of the court or­
dered Finger plan (Order, August 3, 1970).

Petitioners, calling Dr. Finger as their witness, had him un­
veil a draft of a preliminary plan previously prepared by 
him. Basically, the plan was Dr. Finger’s attempt to restruc­
ture attendance zones. Finding his rezoning attempts left

14Cluster or zone number IV of the HEW plan grouped all white 
Pinewood, nearly all black Marie Davis with Sedgefield (38% black) 
and Collinswood (33% black). This plan was roundly condemned for 
the reason that an elementary student in such a zone would attend 
four elementary schools in six years and it interfered with the educa­
tional programs and organizations of the school system. It also 
involved substantial transportation and utilized many schools that 
already had the approximate racial ratio of the entire system. Most of 
the groupings were near-black or predominately black (R. Ex. 1 and 2, 
July 15, 1970).



23

approximately 6,800 black elementary school children in 
inner-city black schools (Tr. 264, July 15, 1970), he then 
developed walk-in attendance zones for black students at 
those schools who would comprise approximately 30% of 
the capacity of the school. The blacks would attend these 
schools for six years. Whites residing generally in the inner 
perimeter of the city limits would be transported to such 
schools. Blacks who were not assigned to the inner city 
schools would be transported for six years to suburban white 
schools. The grade structure of the suburban schools was 
rearranged on a 3-3 basis with grades 1 - 3 in one school and 
a school in a contiguous area would have grades 4 - 6. Stu­
dents in the contiguous zones would attend these two schools 
along with blacks from the inner city schools. Dr. Finger 
admitted the plan was incomplete (Tr. 263, July 15, 1970) 
and contains a complex grade structure (Tr. 258, July 15, 
1970). The enormous amount of dislocation and transpor­
tation is apparent. As the district court found:

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 assign­
ment method is adopted, the minority Board plan 
may be a little cheaper than the Finger plan. (Order, 
August 3, 1970).

The district court characterized three of the plans as “rea­
sonable” : the court ordered (Finger) plan, the minority
board plan and the earlier draft of a Finger plan. The Board 
was given the “option” of adopting any one of these plans 
for the elementary schools. The Board met and found the 
three alternate plans to be unreasonable and the court or­
dered (Finger) plan was thereupon imposed by order of 
August 7, 1970.

The Board filed notice of appeal to the Court of Appeals 
for the Fourth Circuit on August 14, 1970, and has made 
application to this Court for permission to supplement the 
record or, in the alternative, that the motion be considered 
as a writ of certiorari to the Court of Appeals for the Fourth 
Circuit pursuant to Rule 20 of the Rules of the Supreme 
Court. No action has been taken thereon at this writing.



24

SUMMARY OF ARGUMENT

Both the district court and the Fourth Circuit have mis­
applied the Constitutional imperatives of Brown I, Brown II 
and Green as they apply to the Charlotte-Mecklenburg 
schools. In doing so, both of these Courts erred in disapprov­
ing the Board plan and imposing upon this System require­
ments that are unlawful and unwarranted by the facts in this 
case.

The basic error stems from the misconception of the rights 
guaranteed black and white children by the Fourteenth 
Amendment and the goal to be achieved by a dismantling 
of a dual system and the establishment of a unitary one. 
Although disclaiming any intent to require racial balancing, 
the orders imposed upon the Charlotte-Mecklenburg System 
are based upon the proposition that student assignments at 
each school must be fashioned in a manner which will achieve 
or approximate the 70% white - 30% black racial ratio of 
the system at large. This false premise in turn is founded 
on the erroneous notion that each black or white child has 
an individual guaranteed right to attend a school having the 
prescribed racial mix. Any fair interpretation of the orders 
of the trial judge point unerringly to the conclusion that he 
deemed that presumed right to be an absolute one that can­
not be diluted or denied by reason of circumstances, costs, 
disruptions or educational or administrative considerations. 
Tacitly, the Circuit Court also espoused racial balancing as 
its goal—but sought unsuccessfully to temper the absolutism 
of the district court with a test of reasonableness, to which 
on remand the trial judge gave only thinly veiled lip service. 
The Board is in general agreement with the employment of 
a Rule of Reason in appraising desegregation plans. But in 
this case, the Fourth Circuit misapplied its own Rule of 
Reason and in effect the district court ignored it. Racial 
balancing is not required by the Constitution and when im­
posed by a court violates the prohibitions of the Civil Rights 
Act of 1964.



25

Contrary to these erroneous views, the pronouncements of 
this Court make it clear that the guaranteed right of a child 
is to attend a school system within which discrimination 
originating from the old state-imposed dualty has been eli­
minated. If such discrimination has been eradicated and if 
schools are fairly operated and administered on a nonracial 
basis, a dual system has been dismantled and a unitary one 
has been established within which no child is excluded be­
cause of his race or color. Nondiscriminatory geographic 
attendance zones, including those promoting the neighbor­
hood school concept, establish a unitary system-notwith- 
standing a residue of predominately black schools that remain 
for reasons totally unrelated to race.

A corollary to the requirement of racial balancing is the 
burden of massive bussing and dislocation of children to 
achieve the goal of 70% white-30% black ratio in the 
schools of the Charlotte-Mecklenburg System. This balancing 
and the bussing to implement it impinges upon the Constitu­
tional rights of children, both black and white, who may 
not wish to be assigned and moved out of their neighbor­
hood attendance zones for the sole purpose of promoting 
the presumed rights of other children.

The February 2, 1970, Board plan is based on geographic 
attendance zones that were drastically gerrymandered to 
promote desegregation. This plan severely strains, but main­
tains the basic benefits of the neighborhood school concept. 
By this technique, the Board satisfactorily desegregated all 
but 10 of its 103 schools. All but a small handfull of the 
black children who remain in these 10 schools will have a 
desegregated school experience for at least one-half of their 
12 years of schooling. The Board itself sought to achieve in 
as many schools as possible a maximum racial mix. By doing 
so, the Board proposal exceeds Constitutional imperatives. 
The compulsion of court orders cannot be employed to 
coerce a school system to do what the Constitution does 
not require.



26

The Board plan is reinforced by majority to minority trans­
fers to promote stable desegregation, prevent resegregation 
and afford blacks that remain in the 10 predominately black 
schools an opportunity to attend a predominately white 
school with free transportation to accomplish the move. 
The teachers at each school are assigned on a ratio of 3 to 1 
which is the ratio of white to black teachers in the system. 
The staff, extra-curricular activities, transportation, facilities, 
programs and other facets of the system are nondiscrimina- 
tory and thoroughly desegregated, and are employed to pro­
mote integration throughout the system.

The Board plan effectively establishes a unitary system. 
Both the district court and the Fourth Circuit erred in dis­
approving that plan and supplanting it with one or more 
alternatives designed to racially balance each school, with 
the consequent bussing and movement of children that the 
Board considered unnecessary, impractical, costly, disruptive, 
educationally unsound and not required by the Constitution.

ARGUMENT

I. GENERAL DISCUSSION OF CONSTITUTIONAL PROB­
LEMS AND CONCEPTS.

A. A CHILD S CONSTITUTIONAL RIGHT GUARAN­
TEED BY THE FOURTEENTH AMENDMENT IS TO 
GO TO SCHOOL IN A UNITARY SYSTEM. IF THE 
SCHOOL IS PART OF SUCH A SYSTEM, HE HAS 
BEEN ACCORDED THAT RIGHT.

It is unarguable that the negro and white children in the 
Charlotte-Mecklenburg system must be and will be accorded 
their Constitutional rights in full measure. However, the dis­
trict court’s misconception of the nature of those rights is 
succinctly stated in its August 3, 1970, Order (Pets’ Br. Al):

The issue is not the validity of a “system”, but the 
rights of individual people.

Of course, the Constitutional rights of a black or white child 
under the Fourteenth Amendment are individual and per-



27

sonal, but the question remains: What is the essence of that 
right—the right to do what? The trial judge concludes that 
the right is an absolute one of each child to be in a desegre­
gated school and presumably in a desegregated classroom 
within the school—regardless of the rights of white children, 
circumstances, problems peculiar to urban areas, costs, dis­
ruptions, educational considerations and other factors which 
prevent a color blind school system from achieving the ideal 
racial mix in every one of its schools.

This view does not comport with the previous declarations 
of this Court. Briefly stated, it is our understanding that 
this Court has defined the right guaranteed a negro or white 
child by the Fourteenth Amendment as being the right to 
attend a school in a system where no state-imposed discrim­
ination exists and has prescribed the attendant affirmative 
duty of a school board to establish such a system. This right 
and duty are summarized in Green v. New Kent County, 
391 U.S. 430 (1968):

[I ] t was such dual systems that 14 years ago Brown I 
held unconstitutional and a year later Brown II held 
must be abolished; school boards operating such 
school systems were required by Brown II “to effec­
tuate a transition to a racially nondiscriminatory 
school system” . . . Id. at 435. (Emphasis added)
. . . Brown II commanded the abolition of such dual 
systems . . . Id. at 437. (Emphasis added)
School boards such as the respondent then operat­
ing State-compelled dual systems were nevertheless 
clearly charged with the affirmative duty . . .  to con­
vert to a unitary system in which racial discrimina­
tion would be eliminated root and branch . . . The 
constitutional rights of Negro school children ar­
ticulated in Brown I permit no less than this . . . Id. 
at 437-38 (Emphasis added)

The thrust of Brown v. Board o f Education, 347 U.S. 
483 (1954) and Brown v. Board o f Education, 349 U.S. 294 
(1955) and all that this Court has said since those landmark 
decisions point unerringly to the validity of this proposition:



28

State-imposed dual systems must be abolished and must be 
replaced with unitary systems. The Constitution does not 
guarantee to a child the right to attend a school having any 
particular racial complexion. The Fourteenth Amendment 
secures for him only the privilege to attend a school that is 
part of a unitary system which is comprised of “just schools” 
{Green, supra, at 442)—schools that are operated and ad­
ministered without any vestige of discrimination. Once a 
conversion or transformation to a unitary nondiscriminatory 
system has been accomplished, every child in that system 
has been accorded his rights. Those who contend for a par­
ticular racial mix or balance in each school propose a per­
version of the commands of Brown I and II and Green.

It is by these standards that the plan of the School Board 
in this case must be judged. An analysis of that plan clearly 
demonstrates that it realistically will achieve the nondis­
criminatory unitary system the Constitution requires. The 
oppressive plan of the district court does not conform with 
these standards. In spite of disclaimers, its objective is the 
racial balancing of each one of the schools of the Charlotte- 
Mecklenburg system.

B. A UNITARY SYSTEM IS ONE WITHIN WHICH NO 
CHILD IS EXCLUDED FROM ANY SCHOOL BE­
CAUSE OF RACE. IF A DESEGREGATION PLAN 
PROMISES REALISTICALLY TO ACCOMPLISH THIS,
IT IS CONSTITUTIONALLY ACCEPTABLE NOT­
WITHSTANDING A RESIDUE OF PREDOMINATELY 
BLACK OR WHITE SCHOOLS THAT REMAIN FOR 
REASONS UNRELATED TO RACE.

The now familiar definition of a unitary system is one 
“within which no person is to be effectively excluded from 
any school because of race or color.” Alexander v. Holmes, 
396 U.S. 19 (1969); Northcross v. Board o f Education (Bur­
ger, Chief Justice, concurring opinion) 397 U.S. 232 (1970). 
Unhappily for school boards charged with the responsibility 
of fashioning a unitary system, this definition only begins,



29

not ends, inquiry regarding the necessary ingredients and 
characteristics of a unitary system.

This Court is well aware of the diversity and change of 
opinion both among and within courts that have been wrest­
ling with the scope and meaning of this definition. This 
ought not to be. We hope this Court will find an oppor­
tunity in this case to put some meat on the bare bones of 
this definition which will give instruction and guidance to 
school boards and will help dispel the disparity that pres­
ently characterizes the findings of fact, conclusions and 
opinions of the lower courts.

Brown I and II. the Green triad and Alexander v. Holmes 
are of some help—but not much for practical application 
“in the field.” From these cases, we understand a unitary 
system to have at least these attributes: it is “nonracial.”
It is “racially nondiscriminatory.” It is what is left after 
a “well-entrenched dual system” has been “dismantled.” It 
is one in which “racial discrimination” is “eliminated root 
and branch.” It is one within which no child is “effectively 
excluded because of race or color.” Running through all 
of these criteria is one common theme: If a system is es­
tablished that does not discriminate against the race of a 
child and thereafter operates on a color blind basis, a former 
dual system has been transformed, converted and, we pre­
sume, purged.

It is worth noting that the 2-school rural residentially 
mixed New Kent County involved in Green typifies the sys­
tems stricken down by Brown I and II, a fact which is spe­
cially commented upon at page 435:

The pattern of separate “white” and “Negro” schools 
in the New Kent County school system established 
under the compulsion of state laws is precisely the 
pattern of segregation to which Brown I and Brown II 
were particularly addressed, and which Brown 1 de­
clared unconstitutionally denied Negro school child­
ren equal protection of the laws. Racial identification 
of the system’s schools was complete, extending not 
just to the composition of student bodies at the two



30

schools but to every facet of school operations— 
faculty, staff, transportation, extracurricular activi­
ties and facilities. In short, the State, acting through 
the local school board and school officials, organized 
and operated a dual system, part “white” and part 
“negro.”
It was such dual systems that 14 years ago Brown I 
held unconstitutional and a year later Brown II held 
must be abolished; school boards operating such 
school systems were required by Brown II “to ef­
fectuate a transition to a racially nondiscriminatory 
school system.” 349 U.S. at 301,75 S.Ct. at 756.

The Green triology formed the primary vehicle for the last 
detailed pronouncements of this Court concerning some of 
the characteristics of a dual and non-dual system. The fac­
tual context within which the teachings of Green were made 
presents considerable difficulties when these guides are ap­
plied to a complex urban system like Charlotte-Mecklenburg— 
particularly when that system has long since abandoned 
the discriminatory practices that were so flagrantly involved 
in New Kent County.

In identifying a unitary system, the Alexander v. Holmes 
definition embodies two basic aspects: (1) effective exclu­
sion and (2) the reason for exclusion—i.e. because of race.

The word “exclude” means to shut out. It implies keep­
ing out hwat is already outside. That a person remains out­
side does not necessarily mean that he is excluded. The 
idea of shutting out suggests affirmative action on the part 
of someone to accomplish the exclusion. If a person out­
side is afforded an opportunity to come inside, he is not 
barred or excluded. This opportunity must be a reasonable 
one. If the opportunity accorded a person is unreasonable, 
he may be said to be effectively excluded.

The Holmes definition does not prohibit all exclusion- 
only invidious ones based on race or color. There are any 
number of reasons why a child can fairly be required to 
attend one school instead of another: capacity, distance,



31

cost, disruptions, location of residence, age, travel, safety, 
administrative problems, educational considerations and a 
host of other factors that have absolutely nothing to do with 
his race or color.

If, in the operation of a school system, these factors are 
honestly, realistically and reasonably applied without the 
slightest degree of racial discrimination, the system is none­
theless unitary even though by reason of these factors some 
black children remain in predominately black schools.

The Fourth Circuit correctly comes to this conclusion in 
the Charlotte-Mecklenburg case (1267a):

. . . [W]e hold: First, not every school in a unitary 
system need be integrated . . .
. . .  [I]f a school board makes every reasonable ef­
fort to integrate the pupils under its control, an 
intractable remnant of segregation, we believe, should 
not void an otherwise exemplary plan for the crea­
tion of a unitary system. Ellis v. Board o f Public 
Instruction o f Orange County, 423 F.2d 203 (5th Cir. 
1970).

This view agrees with the trend of lower court decisions 
which may be summarized as follows: The maintenance of 
some all-black or all-white schools in a given school system 
will not automatically invalidate a desegregation plan nor 
will it automatically indicate a shirking of responsibility by 
school board officials so long as the segregation is the result 
of housing patterns and means are made available whereby 
black children in the all-black areas may transfer to predom­
inately white schools. The operation and maintenance of a 
particular school building, attended only by negro or white 
children, is not per se unconstitutional. United States v. 
Greenwood Municipal Separate School District, 406 F.2d 
1085, 1093 (5th Cir. 1969), Ellis v. Board o f Public Instruc­
tion o f Orange County, 423 F.2d 203 (5th Cir. 1970), Goss 
v. Board o f Education, City o f Knoxville, Tennessee, 406 
F.2d 1183 (6th Cir. 1969), Deal v. Cincinnati Board o f Edu­
cation, 419 F.2d, 1387 (6th Cir. 1969).



32

The trial judge who heard the Charlotte-Mecklenburg case 
is out of step with this trend and obviously disagreed with 
the opinion of the Court of Appeals for the Fourth Circuit. 
On February 5, 1970, the trial judge ordered (822a); “That 
no school be operated with an all-black or predominantly 
black student body.” The district court did not retreat from 
this position in its August 3, 1970, Order (Pets.’ Br. Al) 
issued after the conclusion of hearings held pursuant to the 
Circuit Court directives. This misconception of what the 
Constitution requires lies at the heart of the unlawful orders 
of the district court and the unwarranted findings of fact 
which the trial judge used to support his erroneous conclu­
sions.

C. A “RULE OF REASON” RATHER THAN A “RULE 
OF ABSOLUTES” SHOULD BE THE STANDARD BY 
WHICH TO JUDGE THE SUFFICIENCY OF A DE­
SEGREGATION PLAN.

We approve the test of reasonableness adopted by the 
Court of Appeals—instead of one that calls for absolutes 
(1267a-1268a):

We adopted the test of reasonableness-instead of 
one that calls for absolutes-because it has proved 
to be a reliable guide in other areas of the law. Fur­
thermore, the standard of reason provides a test for 
unitary school systems that can be used in both rural 
and metropolitan districts. All schools in towns, 
small cities, and rural areas generally can be inte­
grated by pairing, zoning, clustering or consolidating 
schools and transporting pupils. Some cities, in con­
trast, have black ghettos so large that integration of 
every school is an improbable, if not an unattainable, 
goal. Nevertheless, if a school board makes every 
reasonable effort to integrate the pupils under its 
control, an intractable remnant of segregation, we 
believe, should not void an otherwise exemplary 
plan for the creation of a unitary school system. 
Ellis v. Board o f Public Ins true, o f Orange County, 
No. 29124, Feb. 17, 1970___F.2d. ____ (5th Cir.)



33

Such a test is consistent with the equitable principles eluci­
dated in Brown II which made it clear that desegregation 
plans and the means of implementing them should take into 
account a variety of local problems and conditions-includ- 
ing by implication those specifically itemized by the Court 
of Appeals (age of pupils, board resources, costs, effect of 
bussing on traffic and the distance and time for transporta­
tion).

In the name of common sense, what standards other than 
“reasonable” ones should be applied to test the efficacy of 
desegregation plans? In fashioning and effectuating decrees, 
Brown II directed that trial courts be guided by equitable 
principles. The very concept of equity presupposes the 
application of fairness, practicability and reason. Equity is 
employed where absolutes are inappropriate.

As stated in Green, supra:
There 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 the light of the circumstances present and 
the options available in each instance.13 Id. at 439.

The August 3, 1970, Order of the district court (including 
its findings of fact) clearly shows that the trial judge gave 
only lip service to the test of reasonableness directed by the 
Court of Appeals. The recital of a few evidences of this 
lip service will suffice at this point: “The circuit court’s
reasonableness order is vague” (Pets.’ Br. A7); “reservations” 
about the pertinence of a rule of reason are expressly ac­
knowledged (Pets.’ Br. A31); the size of a system is imma­
terial (Pets.’ Br. A10); “ 'Busing’ is still an irrelevant issue” 
(Pets.’ Br. A10); current long distance bussing of kindergar­
ten children is cited as justification for bussing thousands 15

15With tongue-in-cheek solemnity, the district judge in Ross v. 
Eckels, Houston Independent School District, F. Supp. (S.D. 
Texas 1970), in commenting on the practical problem occasioned by 
Buffalo Bayou, proclaimed: “A child is not required to swim or fly to 
school.”



34

of elementary youngsters (Pets.’ Br. A16, A18); “There is 
no way to decide what remnant shall be determined intracta­
ble” (Pets.’ Br. A18); “cost and inconvenience” are not per­
tinent considerations (Pets.’ Br. A31).

In view of the reservations entertained by the district 
court about the pertinence of a Rule of Reason, it is not 
surprising that upon remand the trial judge concluded that 
his own prior orders were “reasonable”—notwithstanding the 
determination of the Fourth Circuit that the trial judge’s 
earlier mandate regarding the elementary plan was unrea­
sonable. This reaffirmation by the district court of its own 
prior conclusions evidences a subjectivity that does not 
square with either the directions of the Court of Appeals 
or with the equitable principles decreed by this Court.

It is incomprehensible that two dissenting members of the 
Court of Appeals (Judges Sobeloff and Winter) should find 
a “test of reason” so frightening. They find it undefined, 
subjective, ambiguous and pernicious (1288a, 1289a, 1290a, 
1302a, 1303a). They say it threatens dire consequences of 
delay and exploitation. (1290a).

In his dissent Judge Sobeloff rejects what he calls (1291a) 
the “slippery test” of reasonableness because it implies that 
desegregation is not “worth the price” (1288a). This mis­
conception is echoed by the plaintiffs’ assertion (Br. 58) 
that the Circuit Court’s reasonableness rule demonstrates a 
departure from the educational goal of desegregation laid 
down in Brown I  and II and reinforced by Green.

This unwarranted conclusion misconstrues the goal sought 
to be achieved. Green, supra, succinctly defined that goal:

[Sjchool boards operating such school systems (i.e. 
dual systems) were required by Brown II “to effec­
tuate a transition to a racially nondiscriminatory 
school system” . . . The transition to a unitary, non- 
racial system of public education was and is the ul­
timate end to be brought about . . .  Id. at 435-36 
(Emphasis by Court).



35

And at 437-38, school boards were charged with:
[T]he 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.

Regardless of the prior dualty of a school system prev­
iously operated under the authority of Plessy v. Ferguson, 
163 U.S. 537 (1896) or otherwise, from these teachings it 
follows that if a current desegregation plan of a school 
board realigns its schools and its assignment policies in a 
fashion that effects a conversion to a nonracial, nondiscrimi- 
natory system, the commands of this Court have been 
obeyed. “Discrimination is defined as “the act, practice, 
or an instance of discriminating categorically rather than in­
dividually.” Webster’s Seventh New Collegiate Dictionary 
(1967). Within the context of desegregation, if the opera­
tion and administration of a school system does not counte­
nance such acts and practices on account of race, discrimina­
tion has been eliminated.

It is for the courts to appraise the plans proffered by a 
school board to determine whether the results achieved are 
genuinely founded on considerations that are completely dis­
associated from any degree of racial discrimination. When 
judged by the peculiarities of local problems, conditions and 
circumstances, the plan of the Charlotte-Mecklenburg School 
Board ought not to be supplanted by a court plan that com­
ports with the subjective views of a trial judge that absolutes 
are required.

In his dissent in United States v. Jefferson County Board 
o f Education, 380 F.2d 385 (5th Cir. 1967), Judge Gewin 
(Bell concurring) responded to the champions of absolutism:

. . . No consideration is given to any distinction in 
any of the numerous school systems involved. Urban 
schools, rural ones, small schools, large ones, areas 
where racial imbalance is large or small, the relative 
number of Negro and white children in any particu­
lar area, or any of the other myriad problems which 
are known to every school administrator, are taken



36

into account. All things must yield to speed, uniform­
ity percentages and proportional representation. There 
are no limitations and there are no excuses. This 
philosophy does not comport with the philosophy 
which has guided and been inherent in the segrega­
tion problem since Brown II. As the Court there 
stated:

Because these cases arose under different local con­
ditions and their disposition will involve a variety 
of local problems, we required further argument 
on the question of relief. (349 U.S. p. 298, 75 
S.Ct. p. 755). Id. at 403.

In appraising the efficacy of desegregation plans, even 
courts espousing the Rule of Reason have been prone to 
place undue emphasis upon tangible factors such as num­
bers of buses and numbers of dollars—with very little direct 
consideration of the effect of such plans upon the educa­
tional processes of a particular system. After all, education 
is what Brown I  and II professed to be all about.

We believe that judicial restraint should be employed in 
assessing the impact of a particular desegregation plan upon 
the educational program of a local system lest the excesses 
of plans devised by absolutists tear to shreds the fabric of 
the educational process that the decisions of this Court were 
designed to improve and promote for all children-black and 
white.

This is not meant to imply that courts should refrain from 
looking behind the judgments of school boards and adminis­
trators to ascertain whether or not they are in fact being 
employed as a guise to circumvent the commands of Brown 
I  and II and Green. We suggest, however, that the judiciary 
should beware lest court-devised plans throw the education 
baby out with the bath water.

The Fourth Circuit (1267a) explained its reasons for adopt­
ing a Rule of Reason:

We adopt the test of reasonableness—instead of one 
that calls for absolutes—because it has proved to be 
a reliable guide in other areas o f the law. (Emphasis 
added)



37

The soundness of the explanation assigned by the Court of 
Appeals for its adoption of this test should require no docu­
mentation, except for those encumbered by a predisposi­
tion for absolutes.

The ‘"other areas of the law” referred to by the Court of 
Appeals include the construction and application by this 
Court of a variety of fundamental individual rights guaran­
teed by the Constitution. By way of example we call atten­
tion to only a few.

Some of the limitations on Freedom of Religion are sum­
marized in Mohammad v. Sommers, 238 F. Supp. 806 (E.D. 
Mich. 1964):

[I]n the interest of the public weal, there are many 
limitations which bound religious freedom. Gen­
erally, it can be said that these limitations begin to 
operate whenever activities in the name of religion 
affect or collide with the liberties of others or of the 
public, or violate public policy. Witness this but par­
tial lists of instances of such conflicts which have 
all been resolved against the claims of religion: Sun­
day closing, spiritualistic readings, selective service, 
parading in the streets, practice and advocacy of 
polygamy, vending periodicals in the streets, fluorida­
tion of water, compulsory school attendance, child 
labor regulations, compulsory vaccination, blood 
transfusion, surgery and medical attention. Id. at 
808.

Numerous limitations have been imposed upon the Right 
of Free Speech. For example, see Cox v. Louisiana, 379 U.S. 
536 (1965); Gitlow v. People o f the State o f New York, 
268 U.S. 652 (1925); Times Film Corporation v. City of 
Chicago, 365 U.S. 43 (1961)—“It has never been held that 
liberty of speech is absolute” ; Schenck v. United States, 249 
U.S. 47 (1919); Gilbert v. Minnesota, 254 U.S. 325 (1920)— 
“it is not absolute—it is subject to restriction and limitation;” 
Dennis v. United States, 341 U.S. 494 (1951).

The same is true of the Right to Trial by Jury. Of interest 
is what this Court said in Duncan v. Louisiana, 391 U.S. 145



38

(1968), holding that a jury trial for petty offenses was not 
required by the Sixth and Fourteenth Amendments:

. . . [T]he possible consequences to defendants from 
convictions for petty offenses had been thought in­
sufficient to outweigh the benefits to efficient law 
enforcement and simplify judicial administration re­
sulting from the availability of speedy and inexpen­
sive nonjury adjudications. These same considerations 
compel the same result under the Fourteenth Amend­
ment. Id. at 1453. (Emphasis added)

And in Baldwin v. State o f New Y o rk ,___U .S .____ , 90
S.Ct. 1886 (1970)

One who is threatened with the possibility of im­
prisonment for six months may find little difference 
between the potential consequences which face him, 
and the consequences which face appellant here. 
Indeed, the prospect of imprisonment for however 
short of time will seldom be viewed by the accused 
as trivial or “petty” matter and may well result in 
quite serious repercussions affecting his career and 
his reputation. Where the accused cannot possibly 
face more than six months imprisonment, we have 
held that these disadvantages, onerous though they 
be, may be outweighed by the benefits which result 
from speedy and inexpensive nonjury adjudications. 
Id. at , 90 S. Ct. at 1890. (Emphasis added)

With reference to the Right to Counsel as expounded by 
this Court in Gideon v. Wainwright, 372 U.S. 335 (1963), 
the Court in Brinson v. State o f Florida, County o f Dade, 
273 F. Supp. 840 (S.D. Fla. 1967), at 845-47 had this to 
say:

. . . The right to counsel should not be treated as 
an abstract theorem, but rather as a means of achiev­
ing the most perfect justice possible in a given situa­
tion. The essence of the right is to protect those 
charged with crimes from wrongful conviction. Flow- 
ever, that right is qualified by practical exigencies . . .
The right to counsel guaranteed by the Sixth and 
Fourteenth Amendments is not an absolute right,



39

nor are any o f the rights guaranteed by the Constitu­
tion “absolute.” See Creighton v. State o f North 
Carolina, 257 F. Supp. 806 (E.D.N.C. 1966). As 
stated in that case, the Constitution was not written 
to provide an exercise in abstract idealism but as a 
practical guide for the management o f the affairs o f 
the country and the protection o f the rights o f its 
citizens. In today’s complex society there can be 
no truly “absolute” rights. Thus, the right to tree 
exercise of the religion of one’s choice is on its face 
absolute, but in application is limited since a reli­
gion requiring illegal activities would not be consti­
tutionally protected. One cannot refuse to pay taxes 
because of religious scrupples, nor can one engage in 
polygamy or any other practice directly harmful to 
the safety, morals, health or general welfare . . . The 
“absolute” right to free speech has been qualified 
and curtailed by libel and slander laws. Such right, 
on occasion, must be subordinated to other values 
and considerations. Dennis v. United States, 341 U.S. 
494, 71 S.Ct. 857, 95 L.Ed. 1137 (1950). It does 
not confer the right to persuade others to violate 
the law. Bullock v. United States, 265 F.2d 683 
(6th Cir. 1958) . . . Neither does such right preclude 
Congress from excluding obscene matter from the 
mails or from punishing person advocating overthrow 
of the government by force. United States v. Bryan, 
167 F.2d 241. Likewise, the “absolute” right to 
counsel in all criminal prosecutions must be quali­
fied by practical exigencies and, unless this is done, 
the necessities o f sound judicial administration would 
be disregarded and the administration of justice 
thrown into senseless chaos. (Emphasis added)

Without belaboring the point further, these examples are 
cited to demonstrate the futility of a Rule of Absolutes and 
the necessity for a Rule of Reason. As the dissenting opinion 
of Judges Sobeloff and Winter and the orders of the district 
court suggest, if a test of reasonableness is slippery and in­
applicable to an evaluation of a school board’s efforts to 
convert to a unitary system, a consideration of costs, disrup­



40

tions, buses, administrative problems, and impact on educa­
tional programs become totally unnecessary and irrelevant. 
If such be true, there would be no need for complex desegre­
gation plans and much of the elapsed time since Brown I and 
II has been wasted.

To the contrary, we subscribe to what this Court said in 
Dennis v. United States, supra:

Nothing is more certain in modern society than the 
principle that there are no absolutes, that a name, a 
phrase, a standard has meaning only when associated 
with the considerations which gave birth to the no­
nomenclature. Id. at 866.

Green gave birth to a major portion of the nomenclature 
applied to measure school systems and desegregation plans. 
We find little evidence of any disposition on the part of the 
absolutists to heed the admonition suggested by Dennis that 
there are differences, which should reasonably be taken into 
account, between the 2 rural schools (1300 pupils) of New 
Kent County and the 103 primarily urban schools (84,500 
pupils) of Charlotte-Mecklenburg.16 The absolutists spring­
board from the nomenclature of Green to rationalize their 
own views, without taking into account the limitations of 
the ruling of this Court in that case:

[A]ll we decide today is that in desegregating a dual 
system a plan utilizing “freedom of choice” is not an 
end in itself. Id. at 440. (Emphasis added)

If the review of the Charlotte-Mecklenburg case does noth­
ing else, we hope standards and guidelines for desegregation

16The trial judge glibly dismisses the differences in his August 3 
Order (Pets.’ Br. A10): “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 Mecklenburg that number exceeds 
16,000.” Even this reference to 16,000 leaves an erroneous impression. 
Under the Board plan only 7,497 black youngsters will attend pre­
dominately black schools. See statistical data relating to the Charlotte- 
Mecklenburg schools and the Board plan attached hereto at A-3.



41

plans will be evolved that are sufficiently clear and definite 
to curtail the temptation of some lower courts to rely on 
their personal educational and social philosophies in judging 
plans and the system for which they are formulated.

D. THE DISTINCTION BETWEEN DE FACTO AND DE 
JURE IS NOT A VALID STANDARD BY WHICH TO 
DETERMINE WHETHER A SCHOOL SYSTEM IS 
UNITARY.

A major thrust of the district court’s sweeping orders is 
based upon its findings that such segregation as remained 
in the Charlotte-Mecklenburg schools was the result of de 
jure, not innocent de facto, action of federal, state and local 
authorities. These findings are summarized in the opinion 
of the Court of Appeals (1264a):

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 evi­
dence and we accept them under familiar principles 
of appellate review. The district judge pointed out 
that black residences are concentrated in the north­
west quadrant of Charlotte as a result of both public 
and private action. North Carolina courts, in com­
mon with many courts elsewhere, enforced racial 
restrictive covenants on real property until Shelley 
v. Kraemer, 334 U.S. 1 (1948) prohibited this dis­
criminatory practice. Presently the city zoning ordi­
nances differentiate between black and white resi­
dential 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 fed­
eral financing and the active participation of local 
government, contributed to the city’s racially segre­
gated housing patterns. The school board, for its 
part, located schools in black residential areas and 
fixed the size of the schools to accommodate the



42

needs of immediate neighborhoods. Predominately 
black schools were the inevitable result. The inter­
play of these policies on both residential and educa­
tional segregation previously has been recognized by 
this and other courts.

These findings were employed as a justification by both 
the trial judge and the Court of Appeals for the disapproval 
of the Board’s plan that would desegregate all but 10 of the 
system’s 103 schools and place 100% of the black and white 
children in schools with thoroughly integrated teaching staffs 
and 68% of the blacks in 93 predominately white schools— 
with almost all of the remaining black children being sched­
uled to attend such schools for at least one-half of their 12 
years of schooling. These de jure findings are in marked con­
trast to earlier findings of the district court in its April 23, 
1969, Order (31 la-312a):

A word about the School Board.-The observations 
in this opinion are not intended to reflect upon the 
motives or the judgment of the School Board mem­
bers. They have operated for four years under a 
court order which reflected the general understand­
ing of 1965 about the law regarding desegregation. 
They have achieved a degree and volume of desegre­
gation o f schools apparently unsurpassed in these 
parts, and have exceeded the performance o f any 
school board whose actions have been reviewed in 
appellate court decisions. The Charlotte-Mecklenburg 
schools in many respects are models for others. They 
are attractive to outside teachers and offer good edu­
cation. The problem before this court is only one 
part (albeit a major part) of the educational problem. 
The purpose of this court is not to criticize the School 
Board, but to lay down some legal standards by which 
the Board can deal further with a most complex and 
difficult problem. The difference between 1965 and 
1969 is simply the difference between Brown of 
1965 and Green v. New Kent County of 1968. The 
rides o f the game have changed, and the methods 
and philosophies which in good faith the Board has 
followed are no longer adequate to complete the job



43

which the courts now say must be done “now”. (Em­
phasis added)

Of particular interest is the district court’s April 23, 1970. 
finding:

. . . Location of schools in Charlotte has followed the 
local pattern of residential development, including 
its de facto patterns o f segregation. (305a) (Empha­
sis added)

Six months later, in its November 7, 1969, Memorandum 
Opinion (661a-662a) the district court gratuitously and with­
out the benefit of further evidentiary hearings reversed its 
previous findings that segregation in Charlotte was de facto. 
The trial judge attributed to the School Board every real or 
fancied ill that beset the Charlotte-Mecklenburg community 
and stemmed from federal, state, local and private action, 
including, among others, public accommodations and hous­
ing, racial restrictions in deeds, zoning ordinances, urban 
renewal, low rent housing and placement of neighborhood 
schools.

The unfairness and artificiality of these attributions is 
underscored by a comparison of the district court’s find­
ings in this case with those of the Sixth Circuit in Deal v. 
Cincinnati Board o f Education, supra, wherein the Court 
considered the same factors, and arrived at a diametrically 
opposite result and concluded:

In our opinion, the burden of righting wrongs alleged 
to have been committed by public or private agencies 
ought not to be foisted upon Boards of Education, 
which have enough problems of their own to solve 
in providing proper education for the young. Id. at 
1392.

In Deal, supra, the Court observed that in Cincinnati due 
to residential patterns there was a large concentration of 
negroes in one portion of the city and schools had been lo­
cated to serve the neighborhoods where the children live. 
The Court in Deal referred to an Ohio statute that required 
the selection of school sites in areas of the heaviest concen­
tration of children and declared that:



44

Even in the absence of such a statute, it would seem 
prudent to locate the schools where they will be 
easily accessible and convenient to most of the 
children and without the necessity of bussing the 
children or their crossing dangerous thoroughfares. 
The Board should consider locations in areas that 
are being developed where large population increases 
are anticipated, and locations in areas where the 
Board already owns property.

We, of course, are mindful of the holding of this Court in 
Cooper v. Aaron, 358 U.S. 1 (1958) which is frequently cited 
for the proposition that as agents of the state a local school 
board is responsible for conditions created by state officials. 
This holding was made within the context of the violent, 
disruptive and overt action generated by Governor Faubus 
and other state officials to thwart the rezoning efforts of 
the local school board. In the case of Charlotte-Mecklenburg 
it is manifestly unsound, unfair and unrealistic that the ac­
tions of others should be arbitrarily attributed to its School 
Board as justification for the excessive order approving the 
disruptive and costly plan of the district court and disapprov­
ing the plan proposed by the Board.

It is common knowledge that prior to 1954 Charlotte- 
Mecklenburg maintained a dual system, sanctioned by the 
laws of the State of North Carolina promulgated under the 
authority of the “separate but equal” doctrine of Plessy v. 
Ferguson, supra, stricken down by Brown I  and II,

Following the mandates of Brown I and II, in order to 
achieve further racial mixing Charlotte-Mecklenburg adopted 
a plan of redistricting that in 1966 was found by the Court of 
Appeals for the Fourth Circuit to comply with the Constitu­
tion as then understood. Swann v. Charlotte-Mecklenburg 
Board o f Education, 369 F.2d 29 (1966). Thereafter, in 
furtherance of additional desegregation, the Board initiated 
a number of actions which were applauded by the district 
court in its April 23, 1969, Order (298a-301a, 311a-312a). 
Following Green and in response to the orders of the dis­
trict court the School Board submitted its plan that on



45

February 5, 1970, was disapproved by the district court in 
favor of its own—reciting in support of its action that the 
local system was tainted by the de jure factors referred to 
above.17

The history of this case, the 1966 Circuit Court approval 
of geographic zones, the Board’s initiative to promote deseg­
regation and the results which will he achieved by the Feb­
ruary 2, 1970, plan of the Board compels an answer to this 
question: When, if ever, can a school system bom under
the ill-fated star of Plessy v. Ferguson purge itself of the de 
jure stigma reserved for systems that once-upon-a-time had 
the dualty that Plessy condoned?

We suggest that the distinction between de jure and de 
facto is invalid and artificially contrived. In doing so, it is 
not our purpose to whitewash the Charlotte-Mecklenburg 
system by pointing a finger at other systems in other parts 
of the nation that have escaped the lash of oppressive court 
orders because they operate behind the mask of de facto 
segregation. We do suggest, however, that the de jure - de 
facto standard is not an appropriate test by which to judge 
a school board’s compliance with the commands of Brown 
/, Brown II and Green. Schools everywhere should be meas­
ured by the same yardstick.

17In Charlotte-Mecklenburg, 68% of the blacks during the school 
year 1969-70 attended predominately black schools. Under the Board 
plan this percentage is dramatically reduced to 32% (see A-3 Appendix 
attached to this brief). Comparable information derived from HEW 
figures reflects the following percentages of black students at pre­
dominately black schools: New York City, 86%; Los Angeles, 96%; 
Detroit, 91%; Philadelphia, 90%; Milwaukee, 88%; San Francisco, 54%; 
Boston, 77%: and Cincinnati, 78%.

The percentages of black students attending schools housing 95% 
to 100% black students in other cities is as follows: Baltimore, 76%; 
Cleveland, 80%; Washington, 89%>; St. Louis, 86%; Newark, 75%; 
Buffalo, 61%; Gary, Indiana, 80%. In Chicago, 76% of the blacks 
attended schools less than 2% white. Source: United Press Inter- 
national Release, May 17, 1970.



46

The flaw in the de jure - de facto dichotomy is that from 
the moment Brown I  was announced all federal, state and 
local laws requiring or permitting segregation were void and 
of no effect. On and after May 31, 1955, there plainly could 
be no de jure racial discrimination in any school system in 
the United States. What was left, North and South, was 
segregation in the schools in fact.

The de jure concept was never of any importance except 
as a handle upon which to hang state action and an affirma­
tive duty to dismantle. If one accepts an affirmative con­
ception of the Constitution, the de jure idea becomes worth­
less and the North and South distinctions intolerable.18

If separation by race in the public schools renders educa­
tional opportunities inherently unequal and if accomplish­
ment of a social purpose is really the true goal, it ought to 
be purely of historical interest and wholly irrelevant how 
the practice originated, whether by law, custom or ghetto 
economics.

It is abundantly clear that social reform is the goal that 
the trial judge sought to achieve in Charlotte-Mecklenburg: 
Segregation per se is unlawful; educational opportunities 
and performances are not controlling—“Segregation would 
not become lawful, however, if all children scored equally 
on the [achievement] tests” (Pets.’ Br. A 15); “no school 
[shall] be operated with an all-black or predominately black 
student body” (822a); the “pupils of all grades [shall] be 
assigned in such a way that as nearly as practicable the 
various schools at various grade levels have about the same 
proportion of black and white students” (822a); the School 
Board shall “maintain a continuing control over the race of 
children in each school . . .  to prevent any school from 
becoming racially identifiable” (823a); the School Board 
shall “implement a continuing program, computerized or 
otherwise, of assigning pupils and teachers during the school

18 Sena tor Abraham Ribicoff, of Connecticut, has described this 
double standard as “monumental hypocricy.”



47

year as well as at the start of each year for the conscious 
purpose of maintaining each school and each faculty in a 
condition of desegregation” (824a).19 One embarked upon 
a crusade for social reform finds both opportunity and justi­
fication in the de jure precept. By way of illustration, it 
seems rather strained that private racial deed restrictions 
negated by Shelley v. Kraemer, 334 U.S. 1 in 1948 should 
be relied upon in support of nefarious state action now. The 
same is true of the purported effects of federal financing 
and other governmental action over which the school board 
has no control.

It is inescapable that an all-black school in Washington 
or Baltimore is just as unequal as an all-black school in 
Charlotte or Atlanta. People are pretty much the same 
everywhere and race prejudice now and in the past has not 
been confined to the southern part of the United States.20

If social reform were to be candidly admitted as the objec­
tive, we could more profitably concern ourselves with what 
is reasonably practicable for a school board to do to correct

19Even if arguendo the de jure - de facto distinction were to be 
accepted, such a requirement of continued maintenance and control 
over the race of children in each school would seem to exceed the 
authority of a district judge, once he concludes that a desegregation 
plan has dismantled a dual system and has established a unitary one. 
After this has been accomplished, any future segregation would be 
de facto-not de jure.

20Racial Isolation in the Public Schools, Summary Report by the 
Commission on Civil Rights (1967), at 3:

Although school segregation was sanctioned by law and offi­
cial policy in Southern cities until 1954, there is a legacy of 
governn.entally sanctioned school segregation in the North as 
well. State statutes authorizing racially separate public schools 
were on the books in New York until 1938, in Indiana until 
1949, and in New Mexico and Wyoming until 1954. Although 
not sanctioned by law in other States, separate schools were 
maintained for Negroes in some communities in New Jersey, 
Illinois, and Ohio, as late as the 1940s and 1950s. In some 
cities such as New Rochelle, N.Y. and Hillsboro, Ohio, the 
courts found that school district lines have been gerry­
mandered for the purpose of racial segregation.



48

social inequities—North and South—rather than having our 
attention diverted to how a particular school system may 
have gotten that way. Further, it would obviate the necessity 
for artifically contrived rationales to support a trial court 
desegregation order, which in this case the Court of Appeals 
accepted “under familiar principles of appellate review.”

E. THE CONSTITUTION DOES NOT REQUIRE RACIAL 
BALANCING IN SCHOOLS OR BUSSING OF CHIL­
DREN OUTSIDE GEOGRAPHIC ATTENDANCE ZONES 
TO EFFECT SUCH BALANCING. BALANCING AND 
COMPULSORY BUSSING INFRINGE ON THE PER­
SONAL RIGHTS AND LIBERTIES OF THE CHILDREN 
INVOLVED.

The test of reasonableness adopted by the Court of 
Appeals—instead of one that calls for absolutes—can be the 
only sensible standard. Transportation may be employed 
on a “reasonable” basis as a legitimate tool to effectively 
desegregate an otherwise dual system. However, this still 
leaves open to question the circumstances under which and 
the purposes for which bussing may be or should be imposed 
upon a school system.

The mandate of the Constitution does not require racial 
balancing or compulsory bussing outside of normal attend­
ance zones to achieve such balancing if the attendance areas 
are fairly drawn.

1. Racial Balancing and the Bussing to Achieve 
It Were the Bases for the Decisions of the 
Trial Court and Court of Appeals.

The net effect of the trial court orders of February 5, 
1970, and August 3, 1970, was to require racial balancing 
at all three instructional levels and the bussing necessary to 
implement it—regardless of cost or disruptions. The net 
effect of the Court of Appeals decision was to impose racial 
balancing at the junior and senior high levels and to authorize



49

it at elementary level—tempered only by its test of reason­
ableness with reference to the amount of bussing involved.

In its August 3, 1970, Order the district court asserts 
that “ ‘Racial balance’ is not required by this court, merely 
racial diversity.” (Pets.’ Br. A10). This was merely a 
reaffirmation of its previous denials that its prior denials 
that its prior orders were not based upon a requirement of 
“racial balance” (710a, 821a). A careful consideration of 
the various orders of the district court clearly shows that 
contrary to the trial judge’s disclaimers his rulings were in 
fact premised upon the proposition that a racial balancing 
of the Charlotte-Mecklenburg schools is required by the Law 
of the Land.

In its April 23, 1969, Order (310a) the trial court enter­
tained doubts about its power to order a racial ratio in the 
various schools of the Charlotte-Mecklenburg system:

Counsel for the Plaintiffs says that since the ratio 
of white to black students is about 70/30 the School 
Board should assign children on a basis of 70% white 
and 30% black and bus them to all schools. This 
Court does not feel that it has the power to make 
such a specific order.

In its December 1. 1969, Order (710a) the trial judge 
acknowledged that his previously expressed doubts had been 
dispelled:

. . .[T]he 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 would 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.

In his February 5, 1970, Order (822a) the trial judge 
abandoned temporarily any pretense concerning racial balanc­
ing as a requirement when he directed:

That pupils of all grades be assigned in such a way 
that as nearly as practicable the various schools at



50

various grade levels have about the same proportion 
of black and white students.

The Court of Appeals likewise disavowed any purpose to 
require racial balancing of the Charlotte-Mecklenburg schools. 
In his dissent, Circuit Judge Bryan cut through the sematics 
employed by both the district court and his colleagues on 
the Court of Appeals (1293a-1294a):

The Court commands the Charlotte-Mecklenburg 
Board of Education to provide busing of pupils to 
its public schools for “achieving integration". (Ac­
cent added) “ [A]chieving integration” is the phrase­
ology used, but actually, achieving racial balance is 
the objective. Busing to prevent racial imbalance is 
not as yet a Constitutional obligation. Therefore, 
no matter the prior or present utilization of busing 
for this or other reasons, and regardless of the cost 
consideration or duplication of the bus routes, 1 
think the injunction cannot stand.
Without Constitutional origin, no power exists in the 
Federal courts to order the Board to do or not to do 
anything. I read no authority in the Constitution, 
or in the implications of Brown v. Board o f Educa­
tion, 347 U.S. 483 (1954), and its derivatives, 
requiring the authorities to endeavor to apportion 
the school bodies in the racial ratio of the whole 
school system.
The majority opinion presupposes this racial balance, 
and also busing to achieve it, as Constitutional imper­
atives, but the Chief Justice of the United States has 
recently suggested inquiry on whether “any particu­
lar racial balance must be achieved in the school; . . . 
(and) to what extent transportation may or must be 
provided to achieve the ends sought by prior holdings 
of the Court.” . . .
I would not, as the majority does, lay upon Char­
lotte-Mecklenburg this so doubtfully Constitutional 
ukase. (Emphasis by Judge Bryan.)



51

In expressing his approval of the district court’s plan at 
all three instructional levels, Circuit Judge Winter in his 
dissenting opinion candidly acknowledges that racial balanc­
ing per se should be required and cites as his justification 
the teacher ratios discussed in United States v. Montgomery 
Board o f Education, 395 U.S. 225 (1969). Judge Winter 
concludes: “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 . . (1301 a-1302a).

Having had substantial integration of its faculties in the 
past, with the opening of its schools this tall Charlotte- 
Mecklenburg has in each of its 103 schools a white-black 
teacher ratio of about 3 to 1, which is the racial ratio of 
faculty members throughout the system. The School Board 
believes these assignments to be beneficial for both black 
and white children. However, we do not agree with the 
district court or Circuit Judge Winter that racial balancing 
of teachers can be cited as support for the proposition that 
children can or should be racially balanced as a Constitu­
tional requirement. Teachers are under no compulsion to 
teach in a particular system. Teacher assignments occasion 
little, if any, inconvenience for the teacher and no costs or 
disruptions are imposed upon the school system. By con­
tract they are employed by a system to apply their teaching 
talents wherever needed. If dissatisfied, they are free to quit 
and move to a system where employment contracts and 
conditions are more to their personal likings. Children must 
attend the school to which they are assigned and have no 
option to escape the unpalatable effects of their forced 
participation in a program of racial balancing designed to 
accommodate others.

In United States v. Montgomery County Board o f Educa­
tion, supra, at 236, this Court observed that the petitioners 
in that case did not argue “for precisely equal ratios in every 
single school under all circumstances” and that the United 
States did not argue that “racially balanced faculties are 
constitutionally required.” As noted above, in apparent



52

agreement with the principle of racial balancing of school 
children, Circuit Judge Winter sought to temper the import 
of the district court order with the mollifying comment that 
“deviations from the overall ratio” had been permitted to 
“accommodate circumstances” with respect to particular 
schools. To one wedded to the proposition that racial 
balancing and ratios is the desired objective, circumstances 
and practical problems will seldom be asserted to prevent 
the achievement of this goal.

2. Racial Balancing and Compulsory Bussing 
Required by the District and Circuit Courts 
Violate the Constitutional Rights of the Chil­
dren Involved.

In its February 2, 1970, Plan the School Board concluded 
with a statement of its conviction that its duty is to protect 
the rights of all children (741a):

. . . The Board understandably is prone to exercise 
caution lest, in protecting the rights o f some o f its 
citizens, it tramples on the rights o f others in the 
absence of a clear mandate of the Supreme Court. 
(Emphasis added.)

This concern of the Board was well-founded. The compul­
sory cross and satellite bussing requirements of the district 
court and the Court of Appeals will violate the individual 
rights guaranteed by the Fourteenth Amendment of those 
blacks and whites caught up in the forced mass movement 
of children away from their neighborhoods and out of their 
normal attendance zones for the sole purpose of achieving 
the racial balancing prescribed by those orders. It is ironic 
that the counterpart of the compulsion outlawed by Brown 
I and II is now employed in the name of the Constitution. 
Is it trite to suggest that two wrongs do not make a right?

It is obvious that a school board must necessarily have 
wide latitude in the establishment of attendance zones for 
orderly administration of the various schools in its system



53

and that, if these zones are fairly conceived on a nondis- 
criminatory basis, the children may be compelled to attend 
the school to which they are assigned under the applicable 
compulsory attendance laws. (See N.C.G.S. Sec. 115-116 
et seq.) Absent an unlimited freedom of choice arrange­
ment (which the Charlotte-Mecklenburg Board has not pro­
posed), the right of a child to go to a particular school is, of 
course, not absolute, but circumscribed by the inherent 
power of a school board to make reasonable attendance 
assignments to conform to the needs of the school system 
and the community it serves.

Whether or not the Board as an elective body could law­
fully have required cross and satellite bussing to effect the 
compulsory mass movement of children may be open to 
question. Suffice it to say, the Board did not choose to go 
to this extreme. The point now at issue is whether the 
judiciary under the mandates of the district court and the 
Court of Appeals infringed upon the individual constitu­
tional rights of the children and their parents-black and 
white-who do not want to be bussed or balanced. In 
requiring this compulsory bussing those orders exceeded any 
Constitutional requirement, by excluding children from 
attending nearby schools solely on account of their race.

Deal v. Cincinnati Board o f Education, supra, at 1391-92 
(6th Cir. 1969) addressed itself to this matter:

It is the contention of appellants that the Board 
owed them a duty to bus white and Negro children 
away from the districts of their residences in order 
that the racial complexion would be balanced in 
each of the many public schools in Cincinnati. It is 
submitted that the Constitution imposes no such 
duty. Appellants are not the only children who 
have constitutional rights. There are Negro, as well 
as white, children who may not want to be bussed 
away from the school districts of their residences, 
and they have just as much right to attend school in 
the area where they live. They ought not to be 
forced against their will to travel out of their neigh­



54

borhoods in order to mix the races. (Emphasis 
added.)

The district judge in Ross v. Eckels, Houston Independent 
School District, supra, asked an interesting question:

Our hypothetical student well might say to the 
Superintendent of Instruction, “You are excluding 
me from School A, two blocks from my home, 
because I am black, and for no other reason. How 
can you do this when the Supreme Court of the 
United States in its latest pronouncement on the 
subject imposes on you the duty ‘to operate as [a] 
unitary school system within which no person is to 
be effectively excluded from any school because of 
race or color?” I would be interested to know how 
this question would be answered. (Emphasis added.)

From time immemorial, the public school has been a focal 
point of community and family life. The location of a parti­
cular school is a major consideration for parental decisions 
regarding the location of their homes and the neighborhood 
in which they choose to live. Obviously, affluent whites and 
blacks are normally better able to make this choice than 
poor whites and blacks. Nevertheless, some poor people 
prefer that their children attend the school serving the areas 
of their residence. To atford disadvantaged parents the 
flexibility of greater options for the education of their chil­
dren than their existing economic or social status may per­
mit and to bring these available options made in line with 
those enjoyed by the more affluent citizens are worthwhile 
objects of any desegregation plan. But it is quite a different 
matter for a judicial decree to compel bussing to a distant 
school outside the normal attendance zones-whether the 
parents like it or not. A court mandate that requires this 
coercion to achieve what it conceives to be a worthy social 
purpose (i.e. racial balance) is judicial paternalism.

The dissenting opinion of Judge Bell (concurred in by 
Judge Gewin) in United States v. Jefferson County Board 
o f Education, supra, involving the desegregation of numerous 
deep south schools, speaks to the matter at hand (at 411):



55

Then there is the matter of personal liberty. Under 
our system o f government, it is not to be restricted 
except where necessary, in balance, to give others 
their liberty, and to attain order so that all may enjoy 
liberty. History records that sumptuary laws have 
been largely unobserved because they failed to recog­
nize or were needlessly restrictive of personal liberty 
. . . They (the majority opinion) cast a long shadow 
over personal liberty as it embraces freedom o f asso­
ciation and a free society. They do little for the 
cause of education. (Emphasis added.)

In Jefferson County, supra. Judge Gewin in his own 
dissent (concurred in by Judge Bell) expressed similar views

. . . There must be a mixing of the races according 
to majority philosophy even if such mixing can only 
be achieved under the lash o f compulsion . . . Ac­
cordingly, while professing to vouchsafe freedom 
and liberty to Negro children, they have destroyed 
the freedom and liberty o f all students, Negro and 
white alike. There must be a mixing of the races, 
or integration at all costs, or the plan does not work 
according to the opinion. Such has not been and is 
not now the spirit or the letter of the law . . . When 
our concepts as to proportions and percentages are 
imposed on school systems, notwithstanding free 
choices actually made, we have destroyed freedom 
and liberty by judicial fiat; and even worse, we have 
done so in the very name o f that liberty and freedom 
we so avidly . . . embrace. (Emphasis added.)

The majority in Jefferson, supra, and other courts have 
sought to justify infringement upon the rights of students 
in the majority where segregation is said to rest upon de jure 
action.

The distinction between de facto and de jure is not a 
valid test by which to measure the liberties of either black 
children or white children. It is fair to assume that both 
black and white school children are blissfully unaware of 
any such distinction or of the circumstances that are relied



56

upon by some to justify unequal treatment. The personal 
rights and liberties of one child should not be sacrificed to 
promote those of another.

3. A Neighborhood Plan Fairly Administered 
Without Racial Bias Satisfies the Constitu­
tional Requirements of a Unitary System.

The neighborhood school concept21 is one that the Board 
considers to be beneficial to the children and enhances the 
support that comes when children and parents identify them­
selves with a particular school and its programs. Fragmenta­
tion of this type of association is not in the best interest ot 
our schools.

In its April 23, 1969, Order the district court volunteered 
its own educational philosophy in opposition to the neigh­
borhood school (306a):

Today people drive as much as forty or fifty miles 
to work; five or ten miles to church; several hours 
to football games; all over the country for civic 
affairs of various types. The automobile has exploded 
the old-fashioned neighborhood . . .  If this court 
were writing the philosophy of education, he would 
suggest that educators should concentrate on plan­
ning schools as educational institutions rather than 
as neighborhood proprietorships . . .

To the contrary, all too many of our present day relation­
ships have become institutionalized and depersonalized. We 
believe this trend to be unwholesome. Close relationships 
among teachers, parents and children should to the maxi­
mum extent be encouraged and undergirded. The neighbor­
hood school plays an important part in fostering such 
relationships—particularly at the elementary level where the 2

2'Geographical zoning is the common method of determining 
school attendance and the neighborhood school is the predominant 
attendance unit. Racial Isolation in the Public. Schools—Summary of 
a Report by the Commission on Civil Rights, page 3, (March 1967).



57

ties between home, school and after-class acitvities are an 
important part of the educational process of children in 
their early formative years. In a metropolitan system such 
as ours the ideal may not always be achieved. This should 
not be a reason for dismantling and abandoning the neigh­
borhood school/2

From the beginning there has been this marked contrast 
between the views of the trial court and those of the Board 
regarding the pertinence of the neighborhood school. The 
School Board responded to the pressure of the trial court 
when it submitted its February 2, 1970, plan—a plan which 
retained, but severely strained, the principle of the neighbor­
hood school. Deal v. Cincinnati Board o f Education, 324
F.2d 209 (6th Cir. 1966) succinctly stated the case for the 
neighborhood school:

Appellants, however, pose the question of whether 
the neighborhood system of pupil placement, fairly 
administered without racial bias, comports with the 
requirements of equal opportunity if it nevertheless 
results in the creation of schools with predominately 
or even exclusively Negro pupils. The neighborhood 
system is in wide use throughout the nation and has 
been for many years the basis of school administra­
tion. This is so because it is acknowledged to have 
several valuable aspects which are an aid to educa­
tion, such as minimization of safety hazards to chil­
dren in reaching school, economy of cost in reducing 
transportation needs, ease of pupil placement and 22

22It is interesting to note that in the brief filed by petitioners with 
this Court in Green, supra, October Term, 1967, No. 695, substantially 
the same view of the importance of the neighborhood school was 
expressed at page 14 of that brief: “Prior to the relatively recent con­
troversy concerning segregation in large urban systems, assignment by 
geographic attendance zones was viewed as the soundest method of 
pupil assignment. This was not without good reason; for placing 
children in the school nearest their home would often eliminate the 
need for transportation, encourage the use of schools as community 
centers and generally facilitate planning for expanding school popu­
lations.”



58

administration through the use of neutral, easily 
determined standards, and better home-school com­
munication.

This appraisal was reaffirmed in Deal v. Cincinnati Board o f 
Education (1969) supra, wherein the Court observed that 
the neighborhood school concept was not only sanctioned, 
but required, by statute in the State of Ohio.

In his policy statement of March 24, 1970, entitled 
SCHOOL DESEGREGATION: A Free and Open Society 
(116 Cong. Rec. S4351, Daily Ed., March 24, 1970), the 
President of the United States addressed himself at length 
and in depth to the important role that the neighborhood 
school plays in the education of our public school children. 
He said in part:

The neighborhood school will be deemed the most 
appropriate base for such a [unitary] system.
Transportation of pupils beyond normal geographical 
school zones for the purpose of achieving racial 
balance will not be required.

An earlier statement23 by Robert Finch, then Secretary 
of Health, Education and Welfare, with particular reference 
to the Charlotte case, underscored some of the ill-effects of 
a dismantling of the neighborhood schools:

We have a very confused set of decisions—that go to 
both ends of the spectrum with regard to the ques­
tion of bussing, for example. We have a decision 
out of the Fifth Circuit involving Orange County, 
Florida, which says in effect the neighborhood school 
is the important concept, and that must be preserved 
at all costs, and that’s where the dollars ought to be 
allocated.
Then you have decisions like Charlotte, in the Caro- 
linas, in Los Angeles, which I think are totally 
unrealistic, because they say that you shall take the

23PROFILE, a production of Metromedia Radio News, Feb. 27, 
1970, Transcript at 7-8.



59

percentages in the district as a whole and apply those 
and force those on each district—or, each school 
within that district.
And in the case of Charlotte, they have to buy 400 
new buses; in the case of Los Angeles, they have to 
buy, I guess, better than 500 new buses, with all that 
goes with that, and when you have that kind of a 
situation, that’s not the best use of your resources, 
because you’re trying desperately to keep the doors 
open, to pay faculty, to pay janitors. But beyond 
that, it’s not the best educational experience, because 
to haul young children, for an hour or more, across 
long distances, as you have particularly in the Los 
Angeles situation, means they can’t get any tutoring 
after school, the parents can’t—have great difficulty 
in getting to the teacher to talk about their child; 
they can’t take part in athletic events, or dramatic 
events or extracurricular events, and it’s not good 
educational policy.
So that I feel very strongly that those decisions are 
moving in the wrong direction.

In the Charlotte-Mecklenburg case, the trial court quite 
obviously considered the neighborhood school to be unim­
portant and irrelevant. The Court of Appeals, though not 
addressing itself per se to the neighborhood school concept, 
nevertheless disapproved the geographic zones at all three 
instructional levels which the Board in its considered judg­
ment had proposed to achieve a unitary system while retain­
ing the basic benefits of the neighborhood school.24

24In commenting upon the complexities of ineffective freedom of 
choice plans, the petitioners in Green, supra, at page 15 of their brief, 
recommended the simplicity of disestablishing dual zones by conver­
sion to compact attendance areas close to home: “The easiest method, 
administratively, was to convert the dual attendance zones into single 
attendance zones, without regard to race, so that assignment of all 
students would depend only on proximity and convenience. With 
rare exception, however, southern school boards, when finally forced 
to begin desegregation, rejected this relatively simple method . . . .”



60

The School Board plan clearly demonstrates a good faith, 
conscious and effective effort to keep its neighborhood 
school attendance areas—drastically gerrymandered to pro­
mote maximum desegregation. This plan satisfies the Con­
stitutional requirement that a unitary system be established 
within which no child is excluded because of race or color.

4. The Compulsory Bussing Approved by the Court 
of Appeals Is Violative of the Provisions of Section 
401(b) and 407(a)(2) of the Civil Rights Act of 
1964 [42 U.S.C. 2000c(b) and 2000c-6(a)(2)] 
Which Expressly Prohibits a United States Court 
To Order Transportation To Achieve Racial Bal­
ance in Schools.

The Court of Appeals has read into the Civil Rights Act 
of 1964 interpretations which are not fairly warranted by 
the plain and intelligible language of the Act or supported 
by its legislative history. In so doing, it has joined the 
error committed by the Court of Appeals for the Fifth 
Circuit in Jefferson, supra, which reached its conclusion by 
a strained illogical analysis of this Act and the legislative 
history.

The clear language of the Act makes no distinction 
between de facto and de jure segregation and the legislative 
history expressly disclaims any sectional or tenuous distinc­
tions adopted by the Court of Appeals and the cases on 
which it relies. If it were otherwise, Congress would have 
expressly so stated and the proponents of the bill would 
have made it so known.

The Courts have been unwilling to give any definitive 
statement with respect to the term “desegregation” and, 
therefore, it became incumbent upon Congress to supply 
an answer in this void. 42 U.S.C. 2000c(b) provides as 
follows:

“Desegregation” means the assignment of students to 
public schools and within such schools without



61

regard to their race, color, religion or national origin, 
but “desegregation” shall not mean the assignment 
of students to public schools in order to overcome 
racial imbalance.

It is therefore apparent that Congress in expressing a defini­
tion of “desegregation” in a positive manner stated that no 
student would be excluded from his school on account of 
race, color, religion or national origin. This is the language 
of Alexander v. Holmes, supra. Congress also negatively 
stated “desegregation” does not mean assignment to over­
come racial imbalance.

In order to give further meaning to its definition, Congress 
by 42 U.S.C. 2000c(a) provides in part as follows:

. . ,[P]rovided that nothing herein shall empower 
any official or court of the United States to issue 
any order seeking to achieve a racial balance in any 
school by requiring the transportation of pupils or 
students from one school to another or one school 
district to another in order to achieve such racial 
balance, or otherwise enlarge the existing power of 
the court to insure compliance with Constitutional 
standards. . . .

The term “desegregation” has taken on such national con­
cern and importance that a Congressional definition may 
properly be regarded as a statement of public policy. 
Although the courts may take action with reference to 
establishing public policy, it primarily rests with the law­
makers to determine public policy. In Building Service 
Employees International Union v. Gazzam, 339 U.S. 991 
(1950), the Supreme Court held:

The public policy of any state is to be found in its 
Constitution, acts of the legislature, and the deci­
sions of its courts. Primarily, it is for the lawmakers 
to determine the public policy o f the state, (p. 787) 
Twin City Pipeline Company v. Harding Glass Co., 
283 U.S. 353, 357, 51 S. Ct. 476, 478, 75 L. Ed. 
1112, 83 A.L.R. 1168.



62

Having primary responsibility, and acting to fill a void left 
by the courts, the public policy as expressed by the Congress 
of the United States is binding upon the judiciary.

Shortly after the Civil Rights Act of 1964 became the law 
of the land, the Circuit Court for the Fifth Circuit by a 
three-judge panel in United States v. Jefferson County Board 
o f Education, 372 F.2d 836 (1966) commonly referred to as 
Jefferson /, and en banc in United States v. Jefferson County 
School Board, 380 F.2d 385 (1967), commonly referred to 
as Jefferson II, undertook to dissect that Congressional 
enactment. In Jefferson I the Court acknowledged the 
supremacy of the legislature in the establishment of national 
policy in the constitutional scheme of things and the 
restraints that should be employed by the judiciary in run­
ning counter to such a declaration policy:

More clearly and effectively than either of the other 
two coordinated branches of government Congress 
speaks as the voice of the nation, (at page 850) . . . 
When Congress declares national policy, the duty the 
other two coordinated branches owe to the nation 
requires that, within the law, the judicial and execu­
tive respect and carry out that policy, (at 856) . . . 
We shall not permit the Courts to be used to destroy 
or dilute the effectiveness of the Congressional 
policy, (at 856) . . .

Having made these pronouncements, the panel in Jefferson I 
abandoned these professed restraints and adopted a rationale 
by which it came to unwarranted conclusions that clearly 
thwarted the legislative policy as expressed in the Civil 
Rights Act of 196425 expressly forbidding racial balancing

25The remarks of Hubert Humphrey, then Majority Whip, made 
during the course of Senate deliberations are a clear down-to-earth 
expression of the legislative intent:

. . . [T]he Constitution prohibits segregation, it does not 
require integration. The busing of children to achieve racial 
balance would be an act to effect the integration of schools. 
In fact, if the bill were to compel it, it would be a violation, 
because it would be handling the matter on the basis of race 
and we would be transporting children because of race. The



63

and the use of transportation to achieve it. This error was 
perpetuated by the majority in Jefferson II and other courts 
relying upon the ill-considered reasoning of these cases.

Judge Bryan in his dissent in the Charlotte-Mecklenburg 
case clearly recognizes congressional hostility to the prin­
ciple of “racial balance” :

Even construed as only incidental to the 1964 Civil 
Rights Act, this legislation in 42 United States Code 
§2000c-6 is necessarily revealing of Congress’ hostile 
attitude toward the concept of achieving racial bal­
ance by bussing. It unequivocally decried in this 
enactment “any order [of a Federal Court] seeking 
to achieve a racial balance in any school by requiring 
the transportation of pupils or students from one 
school to another . . .  to achieve racial balance . . .

The opinions and orders of the Court of Appeals and of 
the district court are based on the premise that balancing 
of the races in each of the Charlotte-Mecklenburg schools 
is the optimal objective. Those opinions and orders con­
travene the prohibition of the Civil Rights Act of 1964.

F. RACIAL BALANCE-THE HARBINGER OF MASSIVE 
COURT INVOLVEMENT IN SOCIAL THEORIES.

The Supreme Court is now being asked by petitioners to 
direct this School Board to engage in another experiment 
in efforts to seek some educational or social goal which has 
eluded them and will continue to do so for years to come. 
It is well known that social balance, social equivalence,

bill does not attempt to integrate the schools, but it does 
attempt to eliminate segregation in the school systems. The 
natural factors such as density of population, and the distance 
that students would have to travel are considered legitimate 
means to determine the validity of a school district, if the 
school districts are not gerrymandered, and in effect delib­
erately segregated. The fact that there is a racial imbalance 
per se is not something which is unconstitutional. 110 Cong. 
Rec. p. 12717,June 4, 1964.



64

educational equivalence and related concepts will not be 
accomplished by the blacks over night. All the sociologists 
and educators agree on this point.

The theory advanced by the petitioners in the original 
Brown case, supra, was not that every child would be 
entitled to go to a non-segregated school, but rather that 
the children would be distributed to the schools by drawing 
attendance lines on a natural basis. 21 U.S.L.W, 3164 (Dec. 
16, 1952). This position was pursued in Cooper v. Aaron, 
358 U.S. 1 (1958) where petitioners sought enforcement 
of a plan which proposed to “develop school attendance 
areas consistent with the location of white and colored 
pupils with respect to the present and future physical facili­
ties of the Little Rock school district.” Norwood v. Tucker, 
287 F.2d 798 (8th Cir. 1961).

The theory of freedom of choice was successfully urged 
upon this Court in Goss v. Knoxville, 373 U.S. 683 (1963) 
and was openly embraced by the Department of Health, 
Education and Welfare under the Civil Rights Act of 1964 
and by the Fifth Circuit in United States v. Jefferson, 380 
F.2d 385 (1967).

Petitioners’ attorneys in Green, supra, (Oct. term, 1967, 
#695), on page 15 of their brief, argued:

After Brown, southern school boards were faced with 
the problem of “effectuating a transition to a racially 
non-discriminatory system” (Brown II at 301). The 
easiest method, administratively, was to convert the 
dual attendance zones into single attendance zones, 
without regard to race, so that assignment of all 
students would depend only on proximity and con­
venience. 16

16Indeed, it was this method that this Court alluded in 
Brown II when it stated “ [t] o that end, the courts may con­
sider problems related to administration, arising from . . . 
revision of school districts and attendance areas into compact 
units to achieve a system of determining admission to the 
public schools on a non-racial basis” (349 U.S. at 300-301). 
(Emphasis added.)



65

Similar expressions appear throughout petitioners’ brief 
in Green.

Notwithstanding petitioners’ arguments in Green, and 
notwithstanding appellate approval of the existing attend­
ance lines of the Charlotte-Mecklenburg system, the Board 
gerrymandered so as to produce a maximum racial mix in 
schools and proposed to totally desegregate faculties. It has 
gone far beyond the requirements of Brown, Green and the 
position of the NAACP throughout all Supreme Court pro­
ceedings. Now the NAACP seeks total racial balance. Why?

For years, the courts and school systems have been advised 
that dramatic improvement in the performance of black stu­
dents could be expected upon the attainment of desegrega­
tion. The Coleman Report teaches there is a tendency for 
blacks to improve in desegregated schools. The achieve­
ment tests of this system (R. Ex. 64, July 15, 1970) disclose 
that the improvement brought about by desegregation is in­
deed slight. Perhaps the reason is that this system has been 
offering educational equivalence in its facilities and programs 
for some years (298a-302a).

The disappointing results of school desegregation brings 
to the forefront the environmentalists who have consistently 
maintained that the environment and attitudes of a child 
are the largest determinants in achieving equivalence. How 
will the courts meet this problem? Will it require massive 
economic assistance to families in the lower economic 
strata? Perhaps the court will be persuaded that the atti­
tudes and environment of the blacks may be enhanced by 
enlarging the school board’s responsibility with respect to 
food, clothing and shelter, all of which may best be 
resolved by placing these children in state maintained 
boarding educational centers. If the court has at that time 
accepted the racial balance theory, then in view of the sub­
stantial transportation times which children encounter in 
traveling to and from these centers, it is a simple step of 
mental gymnastics to require full attendance of whites in 
these educational centers so as to further satisfy the peer



66

group advocates. If this Court embraces the principle of 
racial balancing, it will have adopted the proposition that 
the constitutional rights of one child may be submerged to 
promote the presumed rights of another.

Even this will not produce total social mixing sought by 
petitioners and additional areas of court intervention will 
be requested which the court must be prepared to face. For 
instance, the district court conjectured that public housing 
has been concentrated by action of federal officials. Obvi­
ously, the concentration of blacks in large public housing 
projects would perpetuate segregation not only in the 
schools but in neighborhoods. Will the court limit the size 
of public housing projects and the distance between such 
projects so as to assure dispersal of blacks?

Related questions arise in the area of private residential 
housing which the district court said perpetuated segrega­
tion. Will this Court ultimately require a private owner of 
a subdivision to include a prescribed quota of homes for 
blacks only in each block of a residential development? 
Will transportation be required in remote suburban areas 
for those blacks who customarily use public transportation?

Numerous other questions relate to what extent this 
Court will require local public authorities to inaugurate 
plans for the racial residential balancing of entire communi­
ties. If community balancing is required, will judicial con­
trol over power possessed by local building licensing officials 
be used to establish and maintain such balancing? Will local 
governments be required to submit for court approval plans 
for desegregation of entire cities? Will such plans be subject 
to continued judicial review and supervision?

Another area which petitioners may pursue through the 
courts relates to school grading, IQ and achievement tests 
administered by the school system. Obviously, those stu­
dents who perform poorly in school on such tests are less 
likely to get the desired employment positions. The remedy 
v/hich may be urged upon the courts is that such grading is 
unfair to minority groups with different cultural back­



67

grounds. Therefore, all students should be automatically 
promoted as having received the same education and given 
the same certificate on graduation. In the eyes of the 
prospective employer, all students would possess the same 
educational qualifications. Is this Court prepared to foist 
this theory upon the nation?

Recently, this Court had occasion to pass upon the 
unconstitutionality of disproportionate district representa­
tion which resulted in the “one man one vote rule.” Reyn­
olds v. Sims, 377 U.S. 533 (1964). School boards are now 
being faced with demands by black students that student 
organizations, cheerleaders, school officers, class olficers 
and other positions ordinarily determined by popular vote 
be accorded blacks pro rata and without regard to the vote 
of the majority. If this Court should direct pro rata repre­
sentation in the schools, then this Court must be prepared 
to answer similar demands of these black students when 
they move into the adult world which does not permit 
racial ratios in elective offices. Will this Court direct that 
minority groups be permitted to select a pro rata number 
of seats in Congress, state legislatures and other positions 
of government?

It is quite obvious that this Court would be unwilling to 
order the adults of this society to such extremes in an 
attempt to attain social racial balances. Are children any 
less citizens by reason of their youth? Certainly not, as 
they are accorded the full spectrum of constitutional rights 
and obligations conferred on adults, other than the right to 
vote. This being true, this Court cannot justify taking from 
the children involved their personal preferences, their time, 
their right to free association and the host of other rights 
they possess as citizens which would be sacrificed in being 
involuntarily transported to a school beyond the area in 
which they reside-solely for the purpose of satisfying a 
racial balance numbers game. The rights of one child and 
the child’s parents to be free of standardization by the state 
is clearly enunciated in Pierce v. Society o f Sisters, 268 U.S. 
510, 534 (1925):



68

. . . The fundamental theory of liberty upon which 
all governments in this union repose excludes any 
general power of the state to standardize its children 
by forcing them to accept public instruction from 
public teachers only. The child is not the mere 
creature o f the state. Those who nurture him and 
direct his destiny have the right, coupled with the 
high duty, to recognize and prepare him for addi­
tional obligations. (Emphasis added.)

In describing the word “liberty”, this court held in Meyer v. 
Nebraska, 262 U.S. 390, 399 (1923), as follows:

While this court has not attempted to define with 
exactness the liberty thus guaranteed, the term has 
received much consideration and some of the in­
cluded things have been definitely stated. Without 
doubt, it denotes not merely freedom from bodily 
restraint, but also the right of the individual to 
contract, to engage in any of the common occupa­
tions of life, to acquire useful knowledge, to marry, 
establish a home and bring up children, to worship 
God according to the dictates of his own con­
science and generally to enjoy those privileges long 
recognized at common law as essential to the orderly 
pursuit of the happiness of men . . . The established 
doctrine is that this liberty may not be interfered 
with under the guise of protecting the public interest 
by legislative action which is arbitrary or without rea­
sonable relation to some purpose within the com­
petency of the state to effect . . .

If this Court directs racial balance in the child’s world, 
then there is no constitutional prohibition which would pre­
vent the court ordering racial balance in the adult world. 
The Constitution as written and as developed contains no 
premise upon which to undergird such reckless appropria­
tion of the constitutional rights of its citizens, be they chil­
dren or adults. Mr. Justice Reynolds in Meyer v. Nebraska, 
supra, describing the totalitarian ancient state of Sparta, 
stated:



69

. . .  In order to submerge the individual and develop 
ideal citizens, Sparta assembled the males at seven 
into barracks and entrusted their subsequent educa­
tion and training to official guardians. Although 
such measures have been deliberately approved by 
men of great genius, their ideas touching the rela­
tion between individual and state were wholly ditfer- 
ent from those upon which our institutions rest; and 
it hardly will be affirmed that any legislature could 
impose such restrictions upon the people of the state 
without doing violence to both the letter and spirit 
of the Constitution.

Will the courts tread where it has forbidden the legislature 
to walk?

II. DISCUSSION OF CONSTITUTIONAL PRINCIPLES TO 
DESEGREGATION PLANS.

A. GENERAL STATEMENT REGARDING DESEGREGATION 
PLANS INVOLVED IN THIS CASE.

When the Fourth Circuit heard this case, there were two 
plans before it, both of which related to all three instruc­
tional levels: The February 2, 1970, plan of the Board and 
the February 5, 1970, plan of the district court, which the 
trial judge later reapproved and reinstated in his orders of 
August 3 and August 7, 1970. After remand by the Court 
of Appeals, during the course of the hearings held pursuant 
to the Circuit Court directives, three other desegregation 
plans were presented for the elementary level: the HEW 
plan, a plan prepared by a minority of the Board and an 
earlier draft of a plan prepared by the court consultant 
Dr. John A. Finger. In his August 3, 1970, Order, the trial 
judge disapproved the HEW plan and found the other two 
to be reasonable alternatives. Having appealed to the Fourth 
Circuit from the August 3 and August 7 Orders, the School 
Board on September 3, 1970, filed with this Court a motion 
for leave to supplement the record, or in the alternative for 
a Writ of Certiorari to the Court of Appeals, so that this



70

Court would have before it the complete record of the 
proceedings that culminated in the August 3 and August 7 
Orders—including the three additional plans referred to 
above. As this brief is being prepared no action has been 
taken by this Court upon the Board’s motion of Septem­
ber 3. On the assumption that the motion will be granted, 
this brief addresses itself to all five plans.

In an effort to be of the greatest possible assistance to 
this Court, as a separate appendix to this brief the School 
Board has filed a total of 9 maps (color coded where appro­
priate) to show graphically the attendance areas, pairings, 
clusters and other information concerning all of the plans— 
with the exception of the earlier Finger draft that was too 
indefinite for adaption to a graphic portrayal. Careful 
consideration of these maps is earnestly invited with the 
hope that this Court will find them to be a convenient 
means of getting a quick accurate picture and comparison 
of the various desegregation proposals.

B. THE BOARD PLAN CONVERTS THE CHARLOTTE- 
MECKLENBURG SCHOOLS TO A UNITARY SYSTEM.
THE FOURTH CIRCUIT JOINED IN THE ERROR OF 
THE TRIAL COURT BY DISAPPROVING THAT PLAN.

1. The Board Plan Squares with the Conversion 
Checklist Prescribed by Green.

In Green, supra, this Court (commenting upon the typical 
pattern of state-imposed dualty found in New Kent County 
and outlawed by Brown I  and IT) observed at 435:

. . . Racial identification of the system’s schools was 
complete, extending not just to the composition o f 
student bodies at the two schools but to every facet 
of school operations—faculty, staff, transportation, 
extracurricular activities and facilities . . . (Emphasis 
added.)

This itemization has been used by courts as a checklist by 
which to measure the effectiveness of desegregation efforts.



71

The administrative staff and school faculties of the 
Charlotte-Mecklenburg system are now thoroughly inte­
grated. In its April 23, 1970, Order the district judge made 
specific findings that there was no discrimination with 
respect to the “other facets” referred to in Green, as well 
as a number of others (298a-301a). The Fourth Circuit also 
took note of these (1265a-1266a). In addition the Board has 
inaugurated many other innovative programs.

Most of these policies and practices were undertaken by 
the Board on its own initiative, a circumstance that prompted 
the district court to state that nothing in its April 23, 1969 
Order shall be construed as any reflection on the good faith 
motives or judgment of the School Board which had 
“achieved a degree and volume of desegregation of schools 
apparently unsurpassed in these parts and have exceeded the 
performance of any school board whose actions have been 
reviewed in appellate court decisions. The Charlotte- 
Mecklenburg schools in many respects are models for 
others.” (31 la-312a).

Since the petitioners do not controvert the findings of 
the trial judge in giving Charlotte-Mecklenburg a clean bill 
of health with respect to these “other facets,” the only 
one at issue in this case involves the question of whether 
the Board plan effectively eliminates discrimination in the 
schools and student bodies of this system.

2. The Board Plan Based on Geographic Attendance 
Zones Gerrymandered to Achieve Maximum Racial 
Mix Fully Complies with Constitutional Require­
ments for Desegregation of the Charlotte-Mecklen­
burg Schools and Their Student Bodies.

The pivotal issue in this case is whether the School Board’s 
desegregation plan based on comprehensively restructured 
geographic attendance zones satisfies the Constitutional 
requirement of a unitary system in a situation where these 
zones are established to promote the maximum amount of 
desegregation possible by the employment of this tech­



72

nique.26 This issue involves a consideration of the extent 
to which a school board may employ this technique as a 
means of preserving some semblance of the neighborhood 
school concept which it, together with most school systems 
and educators, believe to be beneficial.27

Of the maps previously referred to, the Court’s attention 
is invited to Map Nos. 1, 6 and 8 showing the elementary, 
junior high and senior high restructured zones of the Board

26The Board plan is supplemented by a majority to minority 
transfer program designed to promote desegregation and to prevent 
resegregation. It allows any black child in a school having more than 
30% of his race to attend one that is less than 30% black, but permits 
a white child to transfer only if his present school is more than 70% 
white and the one to which he seeks assignment is less than 70% 
white. To encourage blacks to take advantage of this option, trans­
portation is provided for those chosing to move from their neighbor­
hoods.

27Compare article appearing in NATION’S SCHOOLS, June, 1970, 
page 100, entitled “Forced Busing Vetoed by 90% o f Schoolmen”'.

Although nearly 40 per cent of the nation’s school super­
intendents think the Nixon Administration is vacillating on 
its enforcement of school desegregation, 90 per cent agree 
with the President’s recently stated reservations about com­
pulsory busing . . .
Despite the various shadings of opinion on enforcement 
policy, most schoolmen reported unequivocal opposition to 
busing as a means for achieving desegregated schools. Judging 
form their comments, for a sizeable majority of superintend­
ents the neighborhood school represents, as one New Yorker 
expressed it, “a fundamental principle in American public 
education.” Objections to busing fell mainly into the follow­
ing categories:

Busing is an infringement on the rights of parents and 
students.

Busing is a poor solution to the problem of desegregating 
the schools since the long-term answer depends on the alter­
ation of residential housing patterns.

Busing is too expensive a solution, when money could be 
better spent to upgrade educational programs in poverty area 
schools . . .
How administrators voted: . . .



73

plan and Map No. 2 showing the new elementary zones 
superimposed upon the previous attendance areas.28

Under the Board plan, 100 of the 103 schools in the 
Charlotte-Mecklenburg System would have some degree of 
racial mix, leaving only three all-white schools. 68% 
(16,709) of the black students would attend 93 schools with 
less than 40% black student bodies29—leaving the remaining 
32% of the black pupils in the 10 schools having white 
ratios of 17% to 1%.30 These 10 predominately black 
schools remained in spite of the Board’s best efforts to 
achieve a more satisfactory racial mix in them by means of 
the drastically gerrymandered attendance lines. Of these 10 
schools, 9 are elementary31 and 1 is a junior high school.32

2. Do you think busing of students should be imple­
mented to achieve desegregation, even if it means a weaken­
ing of the neighborhood school concept?

10% Yes 90% No . . .
The opinion poll survey, conducted monthly by the editorial 
staff of NATION’S SCHOOLS, is based on a five per cent 
proportional sampling of 14,000 school administrators in 50 
states. This month’s poll brought a 40 per cent response.

28Some of these maps reflect slight adjustments occasioned by 
“rounding o ff’ the square corners of the computer lines to conform 
them to identificable landmarks.

29This represents a 100% increase over 1969-70, when 8,858 blacks 
attended 73 predominately white schools. In March of 1965 only 343 
blacks attended 22 white schools. Several predominately white schools 
slightly exceed 40% black.

30See Appendix attached to this brief for statistical data pertaining 
to the Board plan.

3'Under the Board plan, these 9 elementary schools have the 
following black-white ratios: Bruns Ave. (90-10); Marie Davis (88-12); 
Double Oaks (99-1); Druid Hills (96-4); First Ward (99-1); Lincoln 
Heights (99-1); Oaklawn (99-1); University Park (85-15); and Villa 
Heights (83-17). (A Plan for Student Desegregation-Systems Asso­
ciates, Inc., page 31.)

32Under the Board plan, Piedmont Junior High has a black-white 
ratio of 90% (B)-10% (W). (A Plan for Student Desegregation-Systems 
Associates, Inc., page 31.)



74

The remaining predominately black schools are located in 
the inner-city core which is populated for the most part by 
blacks, many of whom due to shifting housing patterns had 
moved into previously white areas. In its March 21, 1970, 
Supplemental Findings of Fact (1208a), the trial court 
acknowledged:

Both Dr. Finger and the school board staff appear 
to have agreed, and the court finds as a fact, that 
for the present at least, there is no way to desegre­
gate 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 con­
clusion. (Emphasis added.)

In formulating its plan, the Board to a very significant 
degree has elected to exceed Constitutional requirements.
It materially altered the compactness of neighborhood 
school areas.33 It introduced into each school a precise 
black-white teacher ratio. It sought to achieve a 70/30

33Brown II recognized that an acceptable desegregation plan may 
employ geographical rezoning if done fairly and in good faith to effect 
“a revision of school districts and attendance areas into compact units 
to achieve a system of determining admission to the public schools on 
a non-racial basis.” A pertinent historical note is made by Alexander 
M. Bickell in his recent book, The Supreme Court and the Idea of 
Progress:

At the first argument of Brown v. Board of Education in 
1952, Justice Frankfurter asked the future Justice Thurgood 
Marshall, then counsel for the Negro children, whether a 
decision in his favor would “entitle every mother to have her 
child go to a non-segregated school?” Mr. Marshall replied 
in the negative. “What will it do?” Justice Frankfurter pur­
sued. Mr. Marshall replied: “The School Board, 1 assume 
would find some other method of distributing the children 
by drawing district lines.” The only requirement would be, 
Mr. Marshall added, that the lines be drawn “on a natural ba­
sis,” and not be gerrymandered so as to enclose or exclude 
Negro neighborhoods. Bickell, The Supreme Court and the 
Idea o f Progress, p. 117 (1970). See also 21 U.S.L.W. 3164 
(1952).



75

racial mix in as many of the 103 schools as possible—a goal 
which the Board maintains cannot be required by judicial 
fiat. Because of neighborhood patterns, only an intractable 
remnant of black children will be assigned to the 10 inner- 
city black schools. Any of these who wish to leave their 
neighborhoods are encouraged to do so by the majority to 
minority transfer policy and are provided the transportation 
with which to accomplish the move. Of those who remain, 
almost all are assured of a desegregated school experience 
for one-half of their 12 years.34

By any reasonable standard the Board plan dismantles 
whatever remained of the old dual system that years ago 
was maintained under the permissiveness of Plessy v. Fer­
guson and the compulson of State law. Any vestige ot 
racial discrimination or identification has been obliterated. 
All facets of the Charlotte-Mecklenburg schools-including 
student bodies, faculty, staff, transportation, extracurricular 
activities and facilities-are desegregated. No child is 
excluded from any of the 103 schools because of race or 
color. As stated by the Court of Appeals (1268a), an 
intractable remnant of segregation “should not void an 
otherwise exemplary plan for the creation of a unitary 
system.”

A consideration of the pro-desegregation gerrymandered 
zones of the Board excludes any inference that they were 
formulated for any purpose other than a color conscious 
one to promote maximum desegregation of the Charlotte- 
Mecklenburg Schools. The Board has acquitted its affirma­
tive duty to convert to a unitary system.

Both the trial judge and the Court of Appeals erred when

340 f  the 32% black children who will remain in predominately 
black schools 6,739 are assigned to 9 (out of a total of 72) elementary 
schools and 758 will attend 1 (out of a total of 21) junior high school. 
All 10 of the high schools are desegregated. Under the Board plan all 
of the 758 junior high students will advance to the predominately 
white high schools and all but a small handful of the elementary 
youngsters will advance to the 20 desegregated junior high schools.



76

they disapproved the Board plan-errors premised upon the 
faulty notion that more racial balancing should be super­
imposed upon that which the Board itself elected to under­
take. By so doing, the Circuit Court exceeded the bounds 
of its own test of reasonableness.

C. THE COURT APPROVED FINGER PLAN EXCEEDS 
CONSTITUTIONAL REQUIREMENTS BY REQUIRING 
RACIAL BALANCING AND THE BUSSING TO IMPLE­
MENT IT. THE FOURTH CIRCUIT JOINED IN THE 
TRIAL COURT’S ERRORS BY DISAPPROVING THE 
BOARD PLAN AND MISAPPLYING ITS OWN RULE OF 
REASON.

This controversy revolves around the trial court’s Febru­
ary 5, 1970, Order requiring long distance bussing to racially 
balance the elementary, junior high and senior high schools 
of the Charlotte-Mecklenburg system. The plan adopted by 
the trial court and ordered into effect was prepared by Dr. 
John A. Finger, Jr., a Professor of Education at Rhode 
Island College, who had previously appeared as a witness 
for the plaintiffs.35 The objectionable features of the Finger 
plan were basically occasioned by his adding to the Board 
plan the paired and clustered schools and satellite areas that 
he considered necessary to comply with trial court instruc­
tions to eliminate the 10 schools that remained predomin­
ately black under the Board plan and to create a racial 
balance in one senior high school (981a). Upon appeal, the 
Fourth Circuit approved the secondary plans of the district 
court, but disapproved its elementary plan as being unreason­
ably onerous. Upon remand (August 3, 1970, Order) con­
trary to the Circuit Court ruling the trial judge concluded

35The Fourth Circuit in commenting on the use of Dr. Finger as 
court consultant cautioned against the use of a partisan witness, but 
concluded that his dual role did not cause him to be faithless to the 
trust imposed on him and therefore, “the error, if any, in his selection, 
was harmless.” (1279a).



77

that his own elementary plan was reasonable and reaffirmed 
his February 5 Order at all three instructional levels.

1. An Analysis of the Court Approved Finger Plan 
Shows the Racial Balancing Imposed Upon the 
Charlotte-Mecklenburg Schools.

The following is a brief summary of the consequences of 
balancing requirements at all three instructional levels which 
were prescribed by the February 5 and August 3 Orders of 
the district judge-those at the secondary level having been 
approved by the Circuit Court and those at the elementary 
level having been held by the Circuit Court to be unreason­
able because too extensive and onerous.

(a) Elementary Schools
The most burdensome part of the trial court’s order is the 

long distance cross-bussing of about 10,300 elementary chil­
dren to eliminate 9 predominately black inner-city schools 
by pairing them with 24 predominately white suburban 
schools—requiring the bussing of 5,150 black first, second, 
third and fourth graders to the white schools and 5,150 
white fifth and sixth graders to the black schools.

It is ironic that, under court compulsion it is proposed 
to reinstate the dual bus system Charlotte-Mecklenburg 
abandoned years ago. Once again, buses for whites only 
and buses for blacks only will be passing each other on the 
streets of Charlotte.

This Court’s attention is invited to Map 3 which shows 
more clearly than can any written description the practical 
effect of the racial balancing edicted by the court plan at 
the elementary level. The long streamers on that map are 
designed to assist this Court in identifying the 9 inner-city 
predominately black schools that are paired with the 24 
white suburban schools for the sole purpose of achieving 
the optimal 70/30 racial mix the trial judge adopted as his 
goal.



78

These are the 9 elementary schools in which the School 
Board was unable to attain a more satisfactory mix36 because 
the concentration in black neighborhoods is so great that 
pulling in whites from adjoining areas would cancel out the 
desegregation achieved under the Board plan in the nearby 
schools.

In disapproving the trial judge’s elementary plan, the 
Fourth Circuit did not quarrel with the racial balancing 
goal sought to be realized. Under its test of reasonableness, 
the Court of Appeals merely concluded that, based on the 
trial court’s estimates, the resulting increase of 39% in the 
number of elementary students bussed and 32% in the pres­
ent bus fleet was too extensive and too onerous (1276a). 
The dissenters, Judges Sobeloff and Winter, were delighted 
with the results and the means of attaining them.

(b) Junior High Schools

The Board plan proposed to restructure the attendance 
lines of the 21 junior high schools so that all but one of them 
would not have more than 38% black students. In spite of 
the Board’s best efforts, the one remaining school (Piedmont 
Junior High) housing about 840 pupils was left 90% black 
and 10% white. As was the case with the 9 elementary 
schools, the Board was unable to achieve further mixing of 
Piedmont Junior High because of the adverse domino effect 
upon the nearby junior highs where satisfactory racial ratios 
had been accomplished.

In order to reduce the percentage of blacks in this one 
school from 90% (758 pupils) to 32% (243 pupils), the court 
consultant reshuffled the Board’s proposed attendance zones 
for the junior high schools and provided for satellite bussing

36The results of the School Board plan regarding these 9 schools 
are summarized in footnote No. 31 at page 72 of this brief. Even 
under the Board plan in 4 of these 9 schools the student bodies would 
be comprised of 10%-17% whites, a mix considered completely accept­
able by many courts.



79

of inner-city black youngsters to nine predominately white 
suburban junior high schools. This proposal of Dr. Finger 
was approved by the trial court and the Court of Appeals.

Map No. 7 shows the junior high zones restructured by 
district court and the streamers on that map identify the 
various inner-city schools from which black youngsters will 
be bussed to outlying schools. As indicated, all of these 
changes were occasioned by the insistence of both the dis­
trict court and the Court of Appeals that the 90% black-10% 
white ratio at Piedmont is not good enough. The extensive 
court imposed surgery was undertaken notwithstanding the 
fact that the Board had already produced satisfactory ratios 
in all of the schools involved in the reshuffle, with the single 
exception of Piedmont, a school nearly all white 5 years ago 
(691a).

According to Board estimates these changes prescribed 
by Dr. Finger require the bussing of 4,741 additional chil­
dren—6,129 under the Finger plan v. 1,388 under the Board 
plan (881a, 872a). All of this is directed to effect a reduc­
tion of black students at 1 of the 21 schools (Piedmont) by 
only 515 students. These dislocations and the cost of the 
bussing required to accomplish this racial balancing cannot 
stand up under the test of reason or the requirements of 
the Constitution.

(c) Senior High Schools

In some respects, the court action at the senior high 
school level evidences the most glaring, if not the most 
extensive, example of racial balancing. Under the Board 
plan all 10 high schools were desegregated—9 of them 17%- 
36% black and 1 (Independence High) with 2% black. This 
plan was adopted by the trial court and approved by the 
Circuit Court with one exception: 300 black students 
residing in the inner core of the City must be bussed from 
the area of their residence through center city traffic a dis­
tance of about 12 or 13 miles to Independence High School 
located in white suburbia.



80

Reference is made to Map No. 9 for a graphic illustration 
of the practical result of Dr. Finger’s modification requiring 
the bussing of the 300 blacks from the inner city satellite 
area to Independence High.

The Court of Appeals referred to the bus mileage for the 
black youngsters as being about the same as the average of 
other bus routes serving Independence High (1273a)-but 
neglected to observe that the existing bus routes were pri­
marily in rural and suburban areas, rather than in the con­
gested inner city areas which would be traversed by the 300 
black students.

Under the Board plan these 300 children would have 
attended a thoroughly desegregated high school having a 
racial composition of 36% black and 64% white. The only 
purpose served by the court-directed shifting of these 300 
was to make a white school less white. Is the time and 
safety of these black children irrelevant? They were assured 
of a desegregated education.

2. The Court-Approved Finger Plan Is Unreasonable 
and Proper Consideration Was Not Given to the 
Burdens Which that Plan Imposes on the Charlotte- 
Mecklenburg System.

The reservations of the district court regarding the pertin­
ence of the Fourth Circuit’s Rule of Reason and its prefer­
ence tor a Rule of Absolutes impaired a proper and full 
consideration of the Board’s evidence and the practical and 
educational problems confronting the Charlotte-Mecklenburg 
System within the context of a complex urban setting.

In his August 3 Order (Pets.’ Br. A1 et seq) after eight 
days of testimony at the hearing that the Circuit Court 
required, the district judge did not make a single finding 
of fact favorable to the School Board. The same is true 
with reference to the March 21, 1970 Supplemental Find­
ings of Fact (1198a) made after hearings that were also held



81

pursuant to Circuit Court directions.37 These findings indi­
cate appalling disdain of the Board’s evidence.

The School Board filed objections and exceptions to the 
findings of fact set forth in both of those Orders. The dis­
trict court took no material action with respect to the 
Board’s motions that these findings of fact be modified to 
conform to the evidence. The objections and exceptions to 
the March 21 findings appear at Appendix 1241a-1254a. 
Those submitted in response to the August 3 findings will 
be printed and filed with this Court as part of an additional 
appendix. A careful consideration of those objections and 
exceptions will assist this Court in appraising the conclusions 
of the district court.38

Due to limitation of space it is practical to discuss only 
a few of the areas wherein the findings of the trial judge 
failed to conform to the evidence.

There was a marked disparity between the estimates of 
the trial court and those of the experienced transportation 
staff of the schools regarding the additional number of 
children to be transported under the Finger plan and the 
number of busses required—13,300 (138 busses) according 
to the judge and 23,384 (526 busses) according to the staff. 
As the Court of Appeals observed (1271a), anyone’s esti­
mates rest on many variables. This is, of course true, but 
the judge’s drastic discount factors (1215a) were unwar­
ranted. The trial court’s computations ignore the fact that

37At the February 5, 1970 hearing the trial judge repeatedly stated 
that the evidence regarding transportation costs and other such data 
was irrelevant and indicated his impatience with the whole subiect. 
(For example, see Tr. 111-14, 128-30, 133-134, 150-151, 1 5 3 .) 'On 
March 5, 1970, the Fourth Circuit granted a stay of the February 5, 
1970 Order with directions that the district court make supplemental 
findings of fact regarding transportation, the stay being left undis­
turbed by this Court.

38Among other portions of the record that this Court may find 
particularly helpful are the affidavit of J. D. Morgan and its attach­
ments (853a-890a), the affidavit of William C. Self (850a-852a) and 
affidavits of lderman J. Hoose (894a-897a, 1038a-1040a).



82

the long routes through the city traffic will hamper the use 
of multiple bus trips and will occasion the need for hard-to- 
get adult drivers unless class schedules of student drivers 
are severely staggered to accommodate transportation. The 
court presumes that a bus can make 1.8 trips per day which 
was the 1969-70 experience of the system with its rural 
routes. This conclusion disregards the evidence showing that 
the 1.8 average includes empty bus trips by the driver, that 
(excluding empty bus trips) last year’s average on primarily 
rural trips were 1.49 overall and 1.06 at the elementary 
level, that the length of trips includes not only school to 
school but the meanderings of routes to pick up children, 
that some busses must operate with under-capacity loads 
when necessary to pick up pockets of children in out-of- 
the-way areas and that busses in inner-city traffic should 
not be overloaded. In computing the additional children 
to be transplanted, the trial judge ignores the evidence that 
a space must be provided for each child assigned to a bus 
whether or not he is absent on a particular day, that due 
to familiarity with specific schools and community areas 
the school staff reduced where appropriate the eligible chil­
dren who would not utilize the busses and that almost all 
of the children in the low economic areas would be depend­
ent upon school bus transportation.

The district court’s justification of the great expansion 
of the existing fleet resulting from its order by reference 
to the pre-existing transportation (280 busses; 23,000 chil­
dren) is unwarranted and ignores the problems occasioned 
by the mass movement of children and busses over the 
streets and arteries of the inner-city and its perimeter 
already saturated and glutted to the breaking point—parti­
cularly during rush hour traffic. School busses having a 35 
mile speed limit will be thrown into the stream of arteries 
moving 40-50 miles per hour. The city traffic engineer 
acknowledged that at present some school busses are being 
operated in congested areas—but equated the practice to a 
tolerable amount of “smallpox” that should not be con­
sciously turned into an “epidemic.” Overloaded busses on



83

rural routes cannot sensibly be cited to support the wisdom 
of overloading busses operating cross-town in the congestion 
of inner-city rush hour traffic-particularly with immature 
drivers.

The trial judge’s findings imply the availability of un­
limited funds from State and local sources with which to 
defray the extensive cost of the additional bussing imposed 
upon the Charlotte-Mecklenburg System—citing in support 
the size of the budgets for the State of North Carolina, the 
County of Mecklenburg and the local school system and 
implying that, if the local community gets financial assist­
ance from the State, it is therefore “free.” The evidence 
shows that the School Board has no control over the State 
budget, that the funds it gets from Federal and State sources 
are nondiscretionary and earmarked primarily for teacher 
salaries, instructional services and special programs, that the 
current local school budget permits the educational programs 
(severely beset by inflation and growing pains) to just about 
stay even and that diversion of funds to finance a greatly 
expanded transportation system will curtail the availability 
of funds for educational pursuits. To the extent the judge 
implies money from the State is “free” he overlooks the 
fact that the State gets its money from the taxpaying public 
and the source thereof is immaterial in applying a Rule of 
Reason. In seeking to minimize the cost of busses to 
implement the Finger plan for the 1970-71 school year, the 
district court takes refuge in the willingness of the State 
to lend the Charlotte-Mecklenburg System obsolete busses 
(14 to 16 years old) on a one-year basis as a supplement to 
the existing fleet.39 This overlooks the obvious fact that

39Paragraph 14 of the order dated August 3, 1970, carries with it 
an implication of the Board’s prior concealment of ownership of addi­
tional busses totaling 107. Common sense dictates that a bus fleet of 
280 would require approximately 20 spare busses which could not be 
used for regular runs as they are required for use as substitutes while 
other busses are out of service. The 29 activity busses, although titled 
in the Board, are owned by the individual schools and for limited use, 
500 to 600 miles annually (Tr. 1043, July 15, 1970). Delivery of



84

the capital outlay burden of acquiring busses is merely post­
poned to another day. The judge minimizes the cost and 
problems of reconditioning these obsolete busses and ignores 
the lack of wisdom of using them in congested traffic.

The district judge completely discounts other increased 
costs occasioned by an extensive expansion of the System’s 
bus fleet (1218a). For example, the costs of additional 
supervisory, mechanical and clerical personnel; of additional 
drivers (the expense being greatly increased to the extent 
adults are used); of additional service and gasoline trucks 
and other equipment; of improving and constructing bus 
parking areas for loading and unloading children where 
insufficient or non-existent; of new and improved rights of 
way for safe and efficient circulation to, from and within 
school grounds (R. Ex. 47, 49-53, 65-68; 853a; P. Ex. 15).

In finding No. 3 of the August 3, 1970 order, the dis­
trict court implies that desegregation will close the gap in 
the academic performance of the blacks. The test results 
of this System disclose that the improvement is slight.

Popular attitudes, which are apparently shared by the 
district court, are that desegregation eliminates or nearly 
eliminates the disparity of educational achievement between 
black and white children. Results of desegregation are 
material on the question of reasonableness but the district 
court’s comparisons are meaningless in this regard. The 
Coleman Report makes a general finding that desegregation 
tends to hold that blacks advance without retarding the 
whites. Achievement statistics compiled by the Board 
relating to the performance of black students attending 
schools which have been desegregated since 1965 reflect 
that the improvement of the black students is indeed slight. 
For example, elementary schools which have been so dese­

busses subsequent to the last hearings created the 30 used bus category, 
busses which are 14 to 15 years old. The 28 new busses were clearly 
scheduled for future delivery. This example is cited as an indication 
of the district court’s predisposition to downgrade Board actions and 
representations.



85

gregated (Cornelius, Huntersville and Davidson) found that 
their black third-grade students performed on an average 
school level of second grade, first month, whereas pre- 
dominantely black schools (First Ward, Irwin Avenue and 
Amay James) found that their third-grade black students 
performed at an average school level of first grade, ninth 
month, or a grade differential of one school month. Black 
students attending those schools at the sixth grade level 
performed at an average school level of fourth grade, third 
month at the desegregated schools; and third grade, ninth 
month at the predominantely black schools, or a difference 
of three school months improvement experienced by the 
blacks attending desegregated schools for a period of six 
years. In making these comparisons, the Board acknowl­
edges that the sampling is small and that the performance 
of individual black students in some cases substantially 
exceeds the performance of the group, and conversely, other 
black students do not perform as well as the group. The 
primary purpose of the Board in reporting this information 
was to disclose to the district court that educators and 
courts must rely on other means to bring about educational 
equivalence. In determining priorities to bring about this 
equivalence, the courts are ill-fitted to adjudge the various 
techniques, including the very expensive and disruptive 
technique of long distance bussing. Determination of such 
priorities should be left with the educators, who after having 
made extensive efforts at desegregation, should be permitted 
judgments based on sound educational consideration. (R. 
Ex. 64, July 15, 1970).

In an attempt to justify findings that bussing is a desirable 
and safe practice, the court (Findings Nos. 2, 4, 6, 13 and 
32 of August 3 Order) refers to the present transportation 
of elementary youngsters and of kindergarten children. This 
observation is irrelevant to the question of how much of 
such bussing should reasonably be required or permitted 
under the circumstances existing in the Charlotte-Mecklen- 
burg School System. The implication of the trial judge’s 
findings are at odds with the conclusions of the educators:



86

Bussing of elementary children away from their neighbor­
hoods is educationally unsound and should be minimized, 
not increased; the school day of young children should be 
shortened and not lengthened to accommodate bus sched­
ules; unattended immature children at bus pickup points 
is neither desirable nor safe; staggered schedules and multiple 
pickups should be minimized; bus transportation interferes 
with after-school activities which are an important part of 
the educational process; bussing of young children away 
from their neighboring schools dilutes the interchange 
between home and school which is most important at the 
elementary level. Transportation should be built around 
education, rather than make education serve transportation. 
Dr. Self stated the matter succinctly (Tr. 138, July 15, 
1970):

[0]ur computations have assumed that we would 
begin with the concept that the transportation sys­
tem serves the educational program. And instead 
of operating our schools in such a way as to accom­
modate a bus fleet, we’d like to try to have the bus 
fleet serve the schools.

In submitting its estimates, the School Board readily 
acknowledged that if savings could be realized through 
educationally sound staggering of school schedules, the use 
of busses for multiple trips, a reasonable and safe degree 
of overloading and other economies it would do so.

The foregoing are recited as typical examples of the 
treatment that was accorded by the trial judge to the evi­
dence of the School Board regarding the practicability and 
desirability of the massive bussing occasioned by the court 
approved Finger plan. The district court’s findings clearly 
show its unreasonable view of the Rule of Reason.



87

D. THE HEW ELEMENTARY PLAN IS EDUCATIONALLY 
UNSOUND, REQUIRES RACIAL BALANCING, FOS­
TERS RESEGREGATION AND IS UNREASONABLE.

The HEW elementary plan was built upon the restruc­
tured lines of the Board plan which were used to form 
seven different clusters within each of which 3 or 4 ele­
mentary schools were grouped together. Each school within 
a cluster serves one, two or three grades. The clusters 
proposed by HEW are shown on Map No. 4. The HEW 
plan had the dubious distinction of being shot down in 
flames by the district court, Dr. Finger, the school staff, 
the Board majority and the Board minority—by everyone 
except the HEW representatives.

The trial court’s August 3 Order (Pets.’ Br. A28) out­
lines its objections to the plan. In rejecting the plan we 
agree that the trial judge was right—but for the wrong 
reasons. The district court’s complaints are primarily based 
on the failure of the HEW plan to do a complete job of 
racial balancing.

The Board’s rejection of the HEW plan was prompted by 
a variety of practical and educational reasons. The plan 
requires the bussing of about as many children as do the 
Finger and Minority plans (R. Ex. 47, Tr. 136). In terms 
of what is accomplished by the plan, the transportation 
costs are prohibitive (R. Ex. 47, 50, 52 and 61a).

The proposed grade structure which in 4 of the 7 pro­
posed clusters would require children to attend 4 different 
schools during the course of their elementary education, 
was severely criticized as being educationally unsound (Tr. 
24, 112, 265), imposing a rigidity that would effectively 
preclude experimentation with programs of ungraded classes 
(Tr. 24-27, 99) and would necessitate a complete change in 
teacher assignments (Tr. 110). The head of the HEW team 
admitted that aside from desegregation he would not recom­
mend this organization of the elementary schools (P. Ex. 4, 
p. 68). The proposed grade structure unnecessarily increases 
transportation requirements (Finger, Tr. 228, 233).



88

Four of the 7 HEW clusters result in a 50-57% black 
enrollment, a condition that promises resegregation (Tr. 30, 
100, 112, 229). The cluster arrangement brings together a 
predominately black school and several other schools which 
were already desegregated (Tr. 31-34, 111, 230, 267). It 
overpopulates some schools and underpopulates others, 
compounding the system’s housing problem (Tr. 30).

As stated by Dr. Finger (Tr. 267), the HEW plan has 
little to recommend it. We agree.

E. THE ELEMENTARY PLAN OF THE BOARD MINOR 
ITY IS INCOMPLETE AND UNLAWFULLY EXCEEDS 
CONSTITUTIONAL REQUIREMENTS BY REQUIR­
ING COMPLETE RACIAL BALANCING OF EVERY 
ELEMENTARY SCHOOL AND THE BUSSING TO IM­
PLEMENT IT. THE DISTRICT COURT ERRED IN 
APPROVING THAT PLAN AS A REASONABLE AL­
TERNATIVE.

The elementary plan was developed by a 4-member minor­
ity of the School Board. In his August 3 Order the trial 
judge approved the Minority plan as a reasonable alterna­
tive available for implementation by the Board. This plan 
was rejected by the Board.

The plan groups all of the 72 elementary schools within 
18 separate clusters, many of which are far removed from 
each other and all of which occasion massive dislocation of 
elementary children. This Court’s attention is invited to 
Map No. 5 which gives a clear picture of what this plan 
does to the elementary schools of the Charlotte-Mecklenburg 
System.

The authors of the plan acknowledge that its purpose is 
to racially balance the 72 elementary schools of the system. 
The plan is educationally unsound (Tr. 68, 174). In its vari-. 
ous clusters the Minority plan includes schools that are al­
ready desegregated (Tr. 180-181, 297).



89

A random selection for the assignment of children is re­
quired within the clusters by the use of a complicated lottery 
system (Tr. 69, 118). The plan would occasion great admin­
istrative difficulties and would involve the problem of select­
ing children from year to year and could require elementary 
children of the same family to attend different schools (Tr. 
120).

The plan will require the bussing of about the same num­
ber of children as would be transported under the Finger 
and HEW plans (August 3 Order). The burden of this amount 
of transportation had been declared by the Fourth Circuit, 
which accepted the district court’s discounted estimates, to 
be too onerous and hence unreasonable with reference to 
the Finger plan. The transportation system required to im­
plement the plan would be complex and cumbersome and 
would involve the mass movement of children within the 
congested areas of the city (Tr. 225, 239). Both Dr. Finger 
and the Superintendent observed that the Minority plan in­
volved very long-distance bussing for a large number of child­
ren (Tr. 265) and could not be implemented without a heavy 
network of transportation (Tr. 119). Both Dr. Finger and 
the Superintendent agreed that education should be con­
trolled by the educators rather than by a transportation sys­
tem (Tr. 138, 303).40

The plan would require the closing of Double Oaks School 
in spite of the fact that the schools of the system are pres­
ently overcrowded with a 12% overcapacity.

The Board’s objections to the Minority plan include all 
of the exceptions which it has to the court-approved Finger 
plan discussed elsewhere in this brief—as well as those pecu­
liar to the Minority proposal. The racial balancing that this 
plan envisions is 100%. Every one of the 72 elementary 
schools are involved in this complete reshuffling to achieve 
the 70/30 racial mix of each student body. In spite of the

40This is a rather remarkable concession on the part of Dr. Finger, 
whose own plan occasions massive cross and satellite bussing of chil­
dren through the most congested parts of the City.



90

weaknesses, defects, costs and disruptions of this plan that 
were pointed out by both the School staff and the court’s 
consultant, Dr. Finger, the trial judge found it to be rea­
sonable. This conclusion is unwarranted and underscores 
once again that racial balancing is the basic, but erroneous, 
precept which undergirds this and every other order of the 
district court.

F. THE EARLIER DRAFT OF THE FINGER ELEMEN­
TARY PLAN IS INCOMPLETE AND UNLAWFULLY 
EXCEEDS CONSTITUTIONAL REQUIREMENTS BY 
REQUIRING RACIAL BALANCING. THE DISTRICT 
COURT ERRED IN APPROVING THAT PLAN AS A 
REASONABLE ALTERNATIVE,

This draft of Dr. Finger is illustrated by Plaintiffs Exhibit 
10. At the hearings preceding the August 3 Order, only a 
minimal amount of attention was accorded this proposal 
which was prepared by Dr. Finger in the early days of his 
appointment as court consultant. It had been abandoned 
in favor of the one which the consultant evolved by the use 
of the restructured lines of the Board plan and which was 
adopted by the judge’s February 5 Order.

Dr. Finger himself did not recommend this early draft 
(Tr. 263). He described it as an incomplete plan that he 
prepared only “to illustrate what some of the elements are 
that enter into the problem of determining how a desegrega­
tion plan should be prepared” (Tr. 263). Dr. Finger pointed 
out that the plan has a “complex grade structure” (Tr. 258). 
It will require transporting about the same number of ele­
mentary children as the court-approved February 5 and 
Board Minority plans (August 3, Order).

The purpose of this draft of Dr. Finger was to achieve 
racial balancing of elementary schools, which the court 
consultant admitted (981a). It is not a reasonable alterna­
tive.



91

G. IN ASSESSING THE EFFECTIVENESS OF A DESEG­
REGATION PLAN, A RULE OF REASON REQUIRES 
THAT DUE CONSIDERATION SHOULD BE AC­
CORDED SCHOOL BOARDS AND ADMINISTRA­
TORS IN CONTROLLING THE DESTINY OF PUBLIC 
EDUCATION.

President Nixon defined the role of a school board:
In devising local compliance plans, primary weight 
should be given to the considered judgment of local 
school boards—provided they act in good faith, and 
within Constitutional limits. President Nixon’s March 
24, 1970, policy statement entitled SCHOOL DE­
SEGREGATION: A Free and Open Society, supra.

If it were otherwise, the admonition of Judge Coleman in 
Bivins v. Bibb County Board o f Education, 419 F.2d. 1211 
(5th Cir. 1970), is pertinent:

Some of these days, the Courts are going to have 
. . .  to free themselves of their tragic failures in the 
role of school administrators and get back to their 
primary functions.

The Charlotte-Mecklenburg School Board is an elective 
body and, as such, is charged with the responsibility of exer­
cising its own judgment regarding the needs of the system 
and the best interest of its children.

It is the School Board’s duty to determine whether the 
dollars allocated to it by other elective officials (the Board 
of County Commissioners for Mecklenburg County) for the 
education of our children shall be spent for books or buses. 
It is for the Board to determine whether the existing trans­
portation system shall be expanded or contracted, whether 
it is educationally good or bad to stagger the opening and 
closing of schools at any particular grade level, whether after 
school activities will suffer, whether inconveniences and dis­
ruption to children and parents are justifiable, whether over­
loaded buses are acceptable or safe, whether the time of 
children in transit is justifiable and how the host of other 
value judgments and policies shall be made to administer



92

effectively a large complex metropolitan school system 
charged with awesome responsibility of providing 84,500 
school children in 103 schools with a quality education.

Books, bricks and buses (and all that they imply) are part 
of the tools to be used in the educational process. How and 
when these tools are used must be left to the good faith 
decision of local school boards or the boards should be dis­
established and the administration of school systems should 
be turned over the courts.

In his findings of fact, the trial court justified his rulings 
requiring extensive and disruptive transportation by calling 
attention to the extent that the system already was involved 
in burdensome bussing. This rationale is unsound. The rea­
sonableness of a desegregation plan should not be measured 
by the worst aspects of a school program.

The fact that last year the Charlotte-Mecklenburg school 
system transported 23,000 children with 280 buses, the 
opening and closing of some of its schools were staggered, 
in some schools after-school activities were impaired, some 
school buses travelled over congested traffic arteries, some 
elementary children waited for the school bus by the side 
of the road at 6:30 in the morning and others got home at 
5:00 in the afternoon, some buses were overloaded and some 
children had to stand up, some buses were unsound and 
should have been replaced—is no answer to the administra­
tive and educational problem of how much of this is desira­
ble, tolerable or necessary in a system as large and complex 
as Charlotte-Mecklenburg. A court mandate that edicts racial 
balancing and forced bussing supplants the value judgments 
of the elected school board and the educators on its adminis­
trative staff. An overdose of judicial paternalism and con­
trol will ultimately sign the death warrant for public educa­
tion.



93

CONCLUSION

For the foregoing reasons, it is respectfully submitted 
that:

1. The judgment of the Fourth Circuit be affirmed only 
in so far as it vacated the judgment of the district court.

2. The judgment of the district court, including its Orders 
of August 3 and August 7, 1970, be reversed; and

3. This matter be remanded to the district court with 
instructions to approve the implementation of the February 
2, 1970, plan of the School Board as one complying with 
the Constitutional requirements for a unitary school system.

Respectfully submitted,

William J. Waggoner
Weinstein, Waggoner, Sturges, 
Odom and Bigger 
1100 Barringer Office Tower 
Charlotte, North Carolina

Benjamin S. Horack
Ervin, Horack & McCartha 
806 East Trade Street 
Charlotte, North Carolina

Attorneys for Respondents and 
Cross Petitioners



A-l

SUMMARY OF RESULTS
FROM RESTRUCTURED SCHOOL ATTENDANCE LINES

1969-1970 1970-1971
%

Black
No. of 

Students
No. of No. of No. of 

Schools Students Schools
Elementary Schools All White 6,607 9 6,437 8

1- 5 9,519 17 2,477 4
6-10 7,349 11 5,603 8

11-15 3,595 6 5,311 10
16-41 6,516 12 17,626 33
42-100
Error

11,312 17 7,242
202

9

Totals 44,898 73 44,898 72
Junior High Schools All White -0- -0- 557 1

1- 5 4,539 3 1,875 2
6-10 6,372 5 524 1

11-15 876 1 1,282 1
16-41 5,049 5 16,227 15
42-100 4,563 5 842 1
Error 92

Totals 21,399 19 21,399 21
High Schools All White -0- -0- -0- -0-

1- 5 2,133 1 1,264 1
6-10 1,592 1 -0- -0-

11-15 5,398 3 -0- -0-
16-41 4,287 2 15,895 9
42-100 3,902 3 -0- -0-
Error 153

Totals 17,312 10 17,312 10
Total All Schools All White 6,607 9 6,994 9

1- 5 16,191 21 5,616 7
6-10 15,313 17 6,127 9

11-15 9,869 10 6,593 11
16-41 15,852 19 49,748 57
42-100 19,777 26 8,084 11
Error 447

Totals 83,609 102 83,609 104

’'Figures presume present inner-city bussing remains in effect.



A-2

POPULATION CHARACTERISTICS OF THE SYSTEM

Black

Elementary 1 3 ,162

Junior High 5,931

High School 4 ,1 3 9

(Error)
23 23°

Number i>f Students

White Total % Black

3 1 ,5 3 4 4 4 ,6 9 6 30

1 5 ,376 2 1 ,3 0 7 28

13,020 17.159 26

4 4 7 0.5

5 9 ,9 3 0 8 3 .6 0 9 28



A -3

BLACK STUDENT POPULATION DISTRIBUTION

Black Students in Predominantly Black Schools 

Elementary Schools 6,739

Junior High Schools....................................................................  758

Senior High Schools................................................................... -0-
7,497

% of Black Students in Black Schools 32%

BLACK STUDENT DISTRIBUTION BASED ON 
RESTRUCTURED ATTENDANCE LINES * 16

% of ' Number of % Black Students
Black Students Black Students by Integration %

0- 5% 121 .5
6- 10% 436 2.0

11- 15% 855 3.8
16- 41% 14,246 61.4
42- 10°%  7,497 32.3

23,155 100.0



ELEMENTARY SCHOOLS

Results of Attendance Line Restructing Projected for 1970-71 *

School

1969-70
Enroll­
ment

69-70
%

Black
Black

Students
White

Students
Total

Students
Rated

Capacity

Over
(Under)
Capacity

%
Black

Albemarle Road .....  514 1 4 469 473 432 41 1
Allenbrook 513 12 59 496 555 540 15 1 1
Ashley Park 601 4 155 421 576 621 (45) 27
Bain 768 4 25 706 731 702 29 3
Barringer 875 98 203 320 523 486 37 39
Berryhill . . 789 14 247 574 821 836 (15) 30
Beverly Woods .....  752 9 8 648 656 540 124 1
Billingsville 610 100 113 325 438 594 (156) 26
Briarwood 686 1 2 663 665 540 225 0
Bruns Avenue ......  784 99 624 73 697 675 22 90
Chantilly .... 492 1 142 303 445 432 13 32
Clear Creek ......  295 17 43 266 309 297 12 14
Collinswood ......  554 20 224 448 672 621 51 33
Cornelius 432 45 182 265 447 459 ( 12) 41
Cotswold 560 4 128 449 577 540 37 24
Davidson 290 36 102 174 276 324 (48) 32
Marie Davis 691 100 666 82 748 756 (8 ) 88
Derita ............... 851 19 152 595 747 783 (36) 20
Devonshire .............. 903 0 0 925 925 648 277 0
Dilworth 449 25 241 376 617 567 50 39
Double Oaks ....... 836 100 825 3 828 675 153 99
Druid Hills .............. 475 99 465 20 485 486 ( 1) 96
Eastover 601 7 157 478 635 648 (13) 25

A
-4



School
1969-70
Enroll­
ment

69-70
%

Black
Black

Students
White

Students
Total

Students
Rated

Capacity
Over

(Under)
Capacity

%
Black

Elizabeth ... 517 71 112 294 406 405 1 28
Enderly Park 374 1 119 238 357 297 60 33
First Ward 820 100 770 7 777 702 75 99
Hickory Grove 603 12 74 556 630 459 171 12
Hidden Valley 1,100 0 1 1,077 1,078 648 438 0
Highland 374 18 76 237 313 297 16 24
Hoskins .......................... ... 241 5 124 219 343 297 46 36
Huntersville 689 22 130 554 684 675 9 19
Huntingtowne Farms .... 610 1 3 614 617 594 23 1
Idlewild .......................... ... 653 9 59 549 608 594 14 10
Irwin Avenue ................. 315 100 277 7 284 837 (553) 98
Amy Jam es..................... ... 476 99 90 169 259 243 16 35
Lakeview ..................... ... 364 78 119 285 404 378 26 29
Lansdowne ... 877 9 79 719 798 756 42 10
Lincoln Heights ............. ... 711 100 903 6 909 648 261 99
Long Creek..................... ... 735 36 259 523 782 837 55 33
Matthews ........................ ... 888 10 81 837 918 945 (27) 9
Merry Oaks ................... ... 442 0 0 557 557 486 71 0
Midwood ... 488 2 116 401 517 459 58 23
Montclaire ..................... ... 718 0 1 781 782 675 107 0
Myers P ark ..................... 478 5 150 314 464 432 32 32
Nations Ford ... 728 6 177 548 725 621 104 24
Newell ............................ ... 512 14 64 436 500 594 (94) 13
Oakdale .......................... ... 586 12 202 460 662 540 122 31
Oakhurst ........................ 621 1 92 504 596 594 2 15
Oaklawn.......................... 613 100 597 3 600 594 6 99
Olde Providence............. ... 592 14 83 461 544 486 58 15



l 9 < > 9 - 7 0 6 9 - 7 0 ( )vei
Tnroll- Black While to tal Rated ( U n d e r )

School ment Black Students Students Students ( apacily ( 'apacily Black

Park  R o ad 5 4 2 7 41 5 7 0 61 1 5 4 0 / 1 7
Paw  C rock 6 3 6 4 8 3 6 0 2 6 8 5 7 7 4 ( 8 4 ) 12
P aw  Crock A n n ex 301 It)
Pincvillc 5 2  1 2 8 123 3 7 4 5 0 2 4 8 6 16 35
P inow ood 6 7 4 0 0 4 0 0 4 0 0 6 4 8 a j a 0
P la /a  R o ad 4 5 0 2 0 LSI 3 5 0 531 4 5 6 72 34
R a m a  R o ad 8 1 6 0 3 7 4 4 7 4 7 6 4 8 4 4 0
Sedgelicld 551 1 2 2 3 3 6 4 5 8 7 5 4 0 47 3 8
Solwyn 6 4 8 5 3 2 4 5 6 461 4 8 6 5 7
S h am ro ck  G a rd e n s 5 1 5 0 8 4 146 5 8 0 4 8 6 44 15
S h aro n 4 5 3 2 0 41 4 2  1 5 1 2 4 5 4 53 18
S la rm o n n t 7 3 7 3 6 7 8 3 8 4 0 5 6 4 8 2 5 7 7
Statesville  R o ad 8 5 5 34 160 5 5 3 7 1 3 5 4 6 164 23
Steele C reek 5 1 4 1 165 4 7 5 6 7 0 3 7 8 262 26
I’h o m a s h o ro 6 4 0 0 135 7 77 4  12 7 2 6 183 IS
1’ryon Hills 4 8 8 66 2 0 0 3 4 2 5 4 2 5 1 3 24 37

T u ck asceg ee 636 6 57 5 10 5 6 7 5 4 0 27 10
U nivers ity  Park 8 2 5 100 7 3 5 132 8 6 7 6 4 8 2 1 4 85
Villa H eights 1,017 61 877 170 1 ,0 4 7 8 1 0 2 3 7 83
W esterly  Hills 5 8 5 8 144 3 3 2 4 7 6 4 0 5 71 3 0
W ilm ore 4 6 3 4 6 153 2 5 0 4 0 3 3 7 8 25 38
W in d so r  Park 7 4 6 0 1 7 8 2 7 8 3 6 4 8 135 0
W interf ie ld 7 3 6 7 52 6 5 3 7 0 5 6 4 8 57 7

T O T A L S 4 4 , 8 6 8 1 3 ,1 6 2 3 1 ,5 3 4 4 4 , 6 6 6

v I hose projections are based on 1969-70 enrollment by map location code or “j.-.' i d I  bis population data contains an e n o i  ot ap 
proximatcly 0 .5%  and therefore, projected enrollment does not exactly equal actual enrollment.

A
-6



A -7

POPULATIONS OF PREDOMINANTLY BLACK 
ELEMENTARY SCHOOLS

Projected Number of Students %
School Capacity White Black Total Black

Bruns Avenue 6 75 73 6 2 4 6 97 9 0

Marie Davis .........  7 5 6 82 6 6 6 748 9 0

Double Oaks .........  675 3 825 8 2 8 99

Druid Hills . 4 8 6 20 4 6 5 4 8 5 9 6

First Ward .............. ........ 702 7 7 7 0 111 99

Irwin Avenue ....... 837 7 2 7 7 2 8 4 97

Lincoln Heights ......  6 4 8 6 903 9 0 9 99

Oaklawn ......  5 9 4 3 5 9 7 6 0 0 99

University Park ........ 648 132 7 35 8 67 85

Villa Heights 8 1 0 170 8 77 1,047 84

Totals 6,831 503 6 ,7 3 9 7 ,2 4 2



A-8

ELEMENTARY SCHOOLS 
With Predominately Black Student Populations

1969-1970____________  Projected for 1970-1971*

1. Barringer 98%

2. Billingsvilie ................. 100%

3. Bruns Avenue ............ 99%

4. Marie Davis 100%

5. Double Oaks 100%

6. Druid Hills 99%

7. Elizabeth .............. 71%

8. First Ward 100%

9. Irwin Avenue 100%

10. Amy James 99%

11. Lake view ...................  78%

12. Lincoln Heights 100 %

13. Oaklawn 100%

14. Tryon Hills 66%

15. University Park 100%

16. Villa Heights 91%

Bruns Avenue ..............  90%

Marie D avis.................  90%

Double Oaks 99%

Druid Hills 96%

First Ward 99%

Irwin Avenue................  97%

Lincoln Heights ............ 99%

Oaklawn 99%

University Park 85%

Villa Heights ................  84%

NOTE: Irwin Avenue closed.



ELEMENTARY SCHOOLS 
With 99 or 100% White Populations*

A-9

School % Black

Albemarle Road 1

Beverly Woods 

Briarwood 1

Chantilly 1

Devonshire 0

Enderly Park 1

Hidden Valley 0

Huntingtowne Farms 1

Merry Oaks 0

Montclaire 0

Oakhurst 1

Pinewood 0

Rama Road 0

Sedgefield 1

Shamrock Gardens 0

Steele Creek 1

Thomasboro 0

Windsor Park 0

School_________________ % Black

Albemarle Road 1

Beverly Woods ................. 1

Briarwood 0

Devonshire 0

Hidden Valley 0

Huntingtowne Farms ........ 1

Merry Oaks 0

Montclaire 0

Pinewood 0

Rama Road 0

Windsor Park .................... 0

*If present inner-city bussing is discontinued, Lansdowne, Park Road, and 
Sharon Schools will be 100% white as they would also have been in 1969-70.



J U N IO R  H IG H  S C H O O L S
R esu lts  o f R e s tru c tu re d  A tte n d a n c e  L ines

School

69/70
finroli-
ment

69/70
%

Black
Number of Students 

Black White Total®
Rated

Capacity

Over 
(Under! 
Capacity

%
Black

Albemarle Road 1,058 6 19 783 802 9 4 8 ( 146) 2
Alexander 1.140 32 3 0 9 6 9 9 1,008 8 74 127 30
Cochrane 1.631 5 571 U 5 0 1,72 1 1,190 531 33
Coulwood ........... 876 12 313 551 8 6 4 7 0 4 160 36
E a s tw a y ................... 1,417 4 375 971 1,346 1,093 253 28
Alexander Graham 1.141 10 261 8 88 1,149 9 9 6 153 23
Hawthorne ....... 1.068 56 2 7 6 7 0 4 9 8 0 8 5 0 130 28
Kennedy 863 94 325 5 4 0 865 801 64 38
McClintock . . 1.381 n 25 1,048 1.073 9 23 150 O

Northwest 1,053 100 2 9 6 685 981 1,068 ( 8 7 ) 30
Piedmont ................. 4 9 8 89 758 84 8 42 6 3 ! 21 1 9 0
Quail Hollow............ 1,576 10 138 1,144 1,282 1,238 44 11
Randolph 9 9 9 29 3 27 703 1.030 672 58 31
Ranson 808 32 295 5 58 853 851 2 35
Sedgefield 9 7 6 17 2 3 4 6 12 846 777 69 28
Smith 1.491 4 3 3 0 9 57 1.287 1,093 194 26
Spaugh 1.126 25 3 4 6 7 52 1,098 8 2 6 272 32
Williams 1,081 100 3 3 6 7 22 1,058 801 257 32
Wilson 1.216 6 3 4 6 795 1,141 1,044 97 30
Carmel — — 2 5 55 557 558 ( 1 ) 0
J. H. Gunn — — 49 4 75 524 558 ( 3 4 ) 9

2 1 ,3 9 9 5,931 15 ,376 2 1 ,3 0 7 18 ,796 2 ,3 8 9

these projections arc based on 1969-70 enrollment by map location code or 'grid '. This population data contains an error of ap­
proximately 0.5% and therefore, projected enrollment does not exactly equal actual enrollment.

A
-10



S E N IO R  H IG H  S C H O O L S

R e su lts  o f R e s tru c tu re d  A tte n d a n c e  L ines

School

69/70
Enroll­
ment

69/70
%

Black
Number of Students 

Black White Total*
Expt. Rated 

Growth Capacity

Over 
(Under) 

Inch 
Growth

Max.
Capacity

Over
(Under)

Max.
Capacity

%
Black

West 1,592 9 494 998 1,492 75 1,374 193 1,660 (93) 33
Olympic 888 42 201 687 888 50 807 131 1,100 (162) 23
Harding 1,356 47 395 692 1,087 25 1,202 (90) 1,300 (188) 36
West Charlotte 1,658 100 597 1,045 1,642 50 1,593 99 1,800 (108) 36
South 2,133 5 482 1,846 2,328 150 1,523 955 2,200 278 21
Myers Park 2.000 12 426 1,883 2,309 -50 1,679 580 2,200 59 18
Garinger 2,640 19 721 1,914 2,635 50 1,874 811 2,450 235 27
East 2,152 11 360 1,716 2,076 150 1,700 526 2,200 26 17
Independence 1,246 11 23 1,241 1,264 100 1,047 317 1,400 (36) 2
North 1,647 28 440 998 1,438 0 1,158 280 1,650 (212) 31

17,312 4,139 13,020 17,159 600 13,957 3,802 17,960 (201)

* These projections are based on 1969-70 enrollment by map location code or '‘g rid ’. This population data contains an error of ap­
proximately 0.5% and therefore, projected enrollment does not exactly equal actual enrollment.

A
-11