Swann v. Charlotte-Mecklenburg Board of Education Amicus Curiae Briefs

    CH AMITE* 
MEC'XLH’IBURi 
%mm of

£ 0 0  IOK

AllCibS C U R IA  
BRIEFS

If. S ,  S U P R E M  
COURT







t



V



f





Supreme Court of the United States
OCTOBER TERM, 1970

No. 281

JAMES E. SW ANN, et al.,
Petitioners,

v.

CH ARLOTTE-M ECKLENBU RG BOARD OF 
EDUCATION , et al .,

Respondents.

ON W RIT OF CERTIORARI TO T H E  UNITED STATES COURT 
OF APPEALS FOR T H E  FOURTH CIRCUIT

BRIEF FOR THE COMMONWEALTH OF VIRGINIA, 
AMICUS CURIAE

Hunton, W illiams, Gay, 
Powell & Gibson 

Of Counsel

A ndrew P. M iller 
Attorney General 

W illiam G. Broaddus 
T heodore J. Marrow

Assistant Attorneys General 
Supreme Court Building 
Richmond, Virginia 23219

Lewis F. Powell, Jr.
John W . R iely 
George H. H ettrick 
Guy K . T ower

Special Counsel 
700 East Main Street 
Richmond, Virginia 23212

Dated September 16, 1970.



Printed Letterpress by 
LEW IS  PR IN T IN G  COMPANY 
Richmond, Virginia



TABLE OF CONTENTS

I. Introduction __________________________________________  1

II. T he Interest Of V ir g in ia .................................................   1

III. T he Issue Before T he Court_______________   6

IV . Summary Of A rgu m en t ................................................................  6

V . A rgument .............................................................................................  8

A . The Origin O f Racial Segregation Is Irrelevant...............  8

B. Racial Balance Is Not Required--------------------------------------  10

C. The Highest Quality Of Education Must Be The Goal .. 17

D. The Court Below Misapplied Its Rule O f Reason........... 20

V I. Conclusion ..... ....................................................................................... 26

TABLE OF AU TH O R ITIES

Cases

Alexander v. Holmes County Bd. of Educ., 396 U .S. 19 (1968) ..2, 11

Atkins v. School Bd., 148 F. Supp. 430 (E .D .V a. 1957), aff’d 
246 F.2d 325 (4th Cir. 1957), cert, denied, 355 U .S . 855 
(1 9 5 7 ) ........................................................................     1

Beckett v. School Bd., 308 F. Supp. 1274 (E .D .Va. 1969) ....9, 11, 22

Beckett v. School Bd., Civil Action No. 2214 (E .D .V a., Aug.
14, 1970) ........................................................ ......................................20, 22

Beckett v. School Bd., Civil Action No. 2214 (E .D .V a., Aug.
27, 1970) .....................................................................................     2

Bell v. School City, 324 F.2d 209 (7th Cir. 1963), cert, denied,
377 U .S . 924 (1964) ......................................................................     8

Blocker v. Board of Educ., 229 F. Supp 709 (E .D .N .Y . 1964) .... 10

i

Page



Bradley v. School Bd., Civil Action No. 3353 (E .D .Va., Aug.
17, 1970) ..................................................................................................... 2, 3

Brewer v. School Bd., No. 14,544 ( 4th Cir., June 22, 1970), cert, 
denied, 3 8 U .S .L .W . 3522 (U .S . June 29, 1970) (N o. 1753)..3, 10

Brown v. Board of Educ., 347 U .S . 483 (1954)
1, 11, 15, 16, 18, 19, 24

Brown v. Board of Educ., 349 U .S . 294 (1955) ...................... 1, 12, 24

Brunson v. Board of Trustees, No. 14,571 (4th Cir., June 5, 1970)
13, 15, 26

Carter v. W est Feliciana School Bd., 396 U .S . 290 (1970) ........  11

Crawford v. Board of Educ., No. 822, 854 (Cal. Super. Ct., 
Feb. 11, 1970) ............................................................................................  21

Daniels v. School Bd., 145 F. Supp. 261 (E .D .V a., 1956) ........... 1

Davis v. County School Bd., 103 F. Supp. 337 (E .D .Va., 1952) .. 1

Deal v. Cincinnati Bd. of Educ., 369 F.2d 55 (6th Cir. 1966), 
cert, denied, 389 U .S. 847 (1967) ..............................................8, 9, 24

Green v. County School Bd., 391 U .S. 430 (1968) ............. 2, 11, 12

Hobson v. Hansen, 269 F. Supp. 401 (D .D .C. 1967), aff’d sub 
nom., Smuck v. Hobson, 408 F.2d 175 (D.C.Cir. 1969) ........  17

James v. Almond, 170 F. Supp. 331 (E .D .V a. 1959), appeal 
dismissed, 359 U .S. 1006 (1959) .........................................................  1

Northcross v. Board of Educ., 397 U .S . 232 (1970) ......................  12

Pierce v. Society of Sisters, 268 U .S. 511 (1925) ................................ 15

Thompson v. County School Bd., 144 F. Supp. 239 (E .D . Va. 
1956), aff’d sub nom. School Bd. v. Allen, 240 F.2d 59 (4th Cir. 
1956), cert, denied, 353 U .S. 910, 911 (1957), opinion supple­
mented, 159 F. Supp. 567 (1957), aff’d 252 F.2d 929 (1958), 
cert, denied, 356 U .S. 958 (1958), injunction dissolved, 204 
F. Supp. 620 (1962) .................................................................................  1

United States v. Montgomery Bd. of Educ., 395 U .S. 225 (1969) 12

Page

n



Other Authorities

... 22

Page

Civil Rights Act of 1964, 42 U .S.C . § 2000c(b) (1964)

Education Appropriations Act of 1971, P.L. 91-380, 91st Cong., 
2d Sess., §§ 209, 210 (1970) .......................................... - ...................

Elementary and Secondary Education Act of 1965, 20 U.S.C. 
§8 8 4  (1966), amending 20 U .S.C. §8 8 4  (1965) ......................

S. 4167, 91st Cong., 2d Sess. (1970) ............ - ......................................

A . Bickel, The Supreme Court and the Idea of Progress (1970) ....

Christian Science Monitor, Aug. 14, 1970 ..............................................

Civil Rights U .S .A .: Public Schools North and W est, U .S. 
Comm’n on Civil Rights (1962) .........................................................

R. Clark, Testimony before Senate Select Committee on Equal 
Educational Opportunity (July 7, 1970) .........................................

Cohen, Defining Racial Equality in Education, 16 U .C .L .A . 
L. Rev. 255 (1959) ......................................................................... 18,

Coleman, The Concept of Equality of Educational Opportunity, 
38 Harv. Educ. Rev. 7 (1968) ............................................................

J. Conant, Slums and Suburbs (1961) ..................................................

Desegregation of America’s Elementary and Secondary Schools, 
Weekly Compilation of Presidential Documents (March 30, 
1970) ...............................................................................................................

Equality of Educational Opportunity, Office of Education, U .S. 
Dept, of Health, Education and Welfare (1966) ..................4,

Freund, Civil Rights and the Limits of Law, 14 Buffalo L. Rev. 
199 (1964) .................................................................................................

C. Hansen, Danger in Washington (1968) ...........................................

Kerner, et al., Report of the National Advisory Comm’n on Civil 
Disorders (1968) ........................................................................................

N .Y . Times, Feb. 12, 1 9 7 0 .............................................- .............................

22

22

10

10

23

16

9

19

19

23

21

18

9

23

16

21



Page 

. . .  22 

... 23

N .Y . Times, Sept. 13, 1970

N .Y . Times, Sept. 14, 1970

Racial Isolation in the Public Schools, U .S . Comm’n on Civil 
Rights (1967) ..........................................................................4, 9, 14, 25

United States Census of Population: 1960 Standard Metropolitan 
Statistical Areas, Bureau of the Census, U .S . Dept, of Com­
merce (1963) ............................................................................................... 15

M . Weinberg, Desegregation Research: An Analysis (1968) ....23, 26

M . Weinberg, Race and Place, Office of Education, U .S . Dept, of 
Health, Education and Welfare (1967) ...........................................  9

iv



IN T R O D U C T IO N

The Commonwealth o f Virginia, because o f the immedi­
ate effect that the decision in this case will have on many 
thousands o f its citizens, requests the Court to consider 
its views outlined in this brief. It seeks modification o f the 
opinions of both o f the courts below and an expression of 
principles that will guide all courts throughout the nation 
in this most difficult area o f basic human relationships.

n.
TH E INTEREST O F V IR G IN IA

In Virginia, segregation by race in the public schools 
was required by constitution and statute prior to 1954. In 
fact, one o f the cases decided here under the style o f Brown 
v. Board o f Education1 came to this Court from a V ir­
ginia locality.1 2

It would be erroneous to assert that Virginia localities 
welcomed Brown 1 and began at once to put into effect the 
remedial steps required by Brown II3; in most places they 
did not. There was, instead, intense public opposition and 
much delay. As a result, litigation arose in many communi­
ties.4 * The march toward what more recently has been termed

1 347 U .S .483  (1954).
2 Davis v. County School Bd., 103 F. Supp. 337 (E .D .Va. 1952), 

reversed by the Brown decisions.
3 349 U .S . 294 (1955).
4 See, e.g., Thompson v. County School Bd., 144 F. Supp. 239

(1956), aff’d sub. nom School Bd. v. Allen, 240 F.2d 59 (1956), cert, 
denied, 353 U .S . 910, 911 (1957), opinion supplemented, 159 F. 
Supp. 567 (1957), aff’d 252 F.2d 929 (1958), cert, denied, 356 U .S. 
958 (1958), injunction dissolved, 204 F . Supp. 620 (1 9 6 2 ); Daniels 
v. School Bd., 145 F. Supp. 261 (1956) ; Atkins v. School Bd. 
148 F. Supp. 430 (1957), aff’d 246 F.2d 325 (1957), cert, denied, 
355 U .S. 855 (1957) ; James v. Almond, 170 F.Supp. 331 (1959), 
appeal dismissed, 359 U .S . 1006 (1959).

I.



2

a “unitary”  system of public schools proceeded inexorably in 
Virginia but, for a decade, it was an unwilling march 
prodded by the courts o f the United States.

It is now fair to say that Virginia localities5 are attempt­
ing in good faith to comply with the mandate o f the Equal 
Protection Clause. But the courts have failed to make it 
clear exactly what compliance entails. The dual system 
must be replaced by a unitary school system,6 but how this is 
to be accomplished is still far from apparent.

The result has been a chaotic condition in several of 
Virginia’s school systems. Two of its largest school divi­
sions, as the local systems are called, are located in Rich­
mond and Norfolk, Virginia’s two largest cities. Litigation 
affecting both of these cities has produced orders in August 
o f this year substantially rearranging school attendance 
areas and inevitably requiring extensive pupil busing.7 This 
has resulted in major disruption of public education and 
confusion among white and black parents, students, faculty 
and staff; it often has led to resentment and even fear.

The educational process is difficult enough without such 
disruption. The time has come to think first of education 
and the whole body o f children to be educated. That, in our 
view, can be accomplished only by the establishment by this 
Court of the parameters within which school officials are to 
act and by which their action is to be judged by the courts.

The factual situation existing in Charlotte, North Caro­
lina, presents certain striking similarities to the situations 
presented by Norfolk and Richmond. All three cities are

6 In Virginia local school boards, pursuant to the State constitution, 
have the primary responsibility to operate the public schools.

6 Green v. County School Bd., 391 U .S . 430, 438 (1 9 6 8 ); A lex­
ander v. Holmes County Bd. of Educ., 396 U .S . 19, 21 (1968).

7 Bradley v. School Bd., Civil Action No. 3353 (E .D . Va., Aug. 
17, 1970) (Richmond) ; Beckett v. School Bd., Civil Action No. 
2214 (E .D . Va., Aug. 27, 1970) (Norfolk).



3

localities where, prior to 1954, segregation by race was re­
quired by law. In all three, the percentage of black students 
in the school population is significant, the 70% white and 
30% black ratio of Charlotte becoming 60% white and 
40% black in Norfolk and reversing to less than 40% 
white and more than 60% black in Richmond.

Plans proposed by H E W  and others presented by 
the Norfolk and Richmond School Boards were rejected 
because, the courts said, racial imbalance was not elimi­
nated in sufficient degree.8 That result obtains equally in 
this case from Charlotte. In each o f these cases the court’s 
solution was to require greater racial balance and, inevitably, 
massive compulsory busing of students.

The question in those cases, as here, was whether racial 
balance is an end in itself; if substantial racial balance must 
be achieved, regardless o f other educational factors that are 
of significance in the situation presented, then the District 
Courts were right in Charlotte and Richmond and the Court 
of Appeals was right in Norfolk. If, as we urge, other 
factors are also relevant, those courts were in error.

What will be decided here is, therefore, entirely relevant 
in the two most critical Virginia situations. For that rea­
son, the decision here may be determinative in Virginia. 
Therein lies Virginia’s interest.

There are, o f course, substantial points of difference be­
tween Charlotte and the Virginia cities. The difference in 
the racial mix has already been mentioned. This results 
primarily from the fact that, by and large, the Norfolk and 
Richmond school divisions are entirely urban rather than 
both rural and urban as is the case in Charlotte. Norfolk is

8 Bradley v. School, Civil Action No. 3353 (E .D . Va., Aug. 
17, 1970) (memorandum opinion); Brewer v. School Bd., No. 
14,544 (4th Cir., June 22, 1970), cert, denied, 38 U .S .L .W . 3522 
(U .S . June 29, 1970) (N o. 1753).



4

adjoined by two cities, Chesapeake and Virginia Beach; in 
them the percentage o f black students is relatively small. 
Richmond is bounded by two counties, Chesterfield and 
Henrico; again their black student percentages are drasti­
cally lower than is that o f Richmond. As urban systems, the 
two Virginia cities do not normally provide transportation 
for pupils. The transportation problem presented by the 
racial balance requirement is therefore more acute because 
o f the lack o f facilities.

A  brief word may be relevant as to the Norfolk and 
Richmond plans that were rejected by the United States 
courts. In both cities, the rejected plans provide for the 
effective integration o f all senior high schools and all junior 
high schools or middle schools. In both plans, the respective 
school boards go far beyond neutral or objective zoning 
plans, gerrymandering natural attendance zones in a man­
ner designed to increase the degree o f integration in the 
systems and to overcome the segregative effects o f racial 
residential patterns. Both plans include a majority-to- 
minority transfer provision. The Richmond plan calls for 
“ learning centers”  where weekly or bi-weekly interracial 
educational experiences are to be provided for each child in 
the system who attends a school with a population 90% or 
more o f the same race. Principles o f the Norfolk plan were 
explicitly based on the best available social science data, in­
cluding the highly regarded research projects sponsored by 
the U.S. Office o f Education9 and the U.S. Commission on 
Civil Rights.10

In sum, both plans adopt a neighborhood or community 
concept in the sense that attendance areas for elementary

9 Equality of Educational Opportunity, Office of Education, U .S . 
Dept, of Health, Education and Welfare (1966).

10 Racial Isolation in the Public Schools, U .S . Cornm’n on Civil 
Rights (1967).



5

schools are served by one or several schools and the advan­
tages of convenience and close school-family relationships 
are retained where practical. Overlaying this concept, how­
ever, is the use in each plan o f all feasible alternatives to 
maximize integration. A  number o f subsidiary concepts, 
such as pairing, consolidation and closing of schools, are in­
corporated in the plans. No alternative plan was offered at 
any hearing which would have the effect o f increasing the 
amount of desegregation that would result from the school 
board plans, short of a plan which would require compul­
sory massive busing to attain racial balance throughout each 
system.

The question before the Virginia federal courts was, 
accordingly, much the same as that presented in Charlotte: 
is racial balance a constitutional requirement? The difficul­
ties of busing in an urban system were presented to the 
courts in both Virginia cases. The expense of initiation of 
school transportation systems, a factor not present in Char­
lotte, and the inadequacy o f existing public transportation 
systems were explored. The plaintiffs nevertheless sought 
approval o f plans requiring cross-busing, even of the 
youngest children. Those plans, in essence, received ulti­
mate judicial confirmation.

Virginia opposes racial balance as a constitutional require­
ment. It believes that such balance must be considered; but 
it should not be the controlling consideration. It seems to us 
that racial balance alone was the determining factor in 
Charlotte, Norfolk and Richmond. We suggest to the Court 
that racial balance is not a desideratum in itself and that 
this Court should declare the constitutional mandate to be 
the best available quality of education for all regardless of 
race or color.



6

m .
TH E ISSUE BEFORE TH E C O U R T

The central issue before the Court is whether racial bal­
ance is an end in itself, required by the Constitution with­
out regard to other educational considerations or other 
values.

IV .

S U M M A R Y  OF A R G U M E N T  

A.

The Origin O f Racial Segregation Is Irrelevant

The proposition that one set of rules applies where the 
origin o f racial segregation was de jure and another where 
the origin was de facto is without substance. History is 
irrelevant to the enforcement o f a constitutional right. 
Racial segregation has almost everywhere received State 
support. Thus no racial segregation is purely de facto. 
Because the State maintains public schools, a segregated 
system constitutes State action. Its existence, without regard 
to its origin, thus raises a substantial constitutional ques­
tion. The same rules must apply to non-unitary systems 
wherever found.

B.

Racial Balance Is Not Required

Racial balance in the schools is not a constitutional im­
perative. No decision of this Court has established such 
a mandate. It is effective neither to accomplish integration 
nor to improve education. Racial balance once prescribed 
may be outdated by population shifts before it becomes ef­
fective. The effort to attain racial balance promotes resegre­



7

gation and movement to suburbia. These results defeat the 
goal of racial balancing, adversely affect education and 
contribute to urban deterioration.

C.

The Highest Quality O f Education Must Be The Goal

The goal o f the desegregation movement must be to 
achieve the highest quality of education. That has been the 
thrust of previous decisions o f this Court. Equal opportunity 
is not to be measured purely by equality of resource appli­
cation and racial balance; that system best conforms to the 
constitutional mandate that provides, through equal oppor­
tunity for every student, the highest level o f achievement 
for all students o f every race, compensating appropriately 
for any deficiencies that may have resulted from previous 
racial segregation. The court below failed to recognize that 
the best educational achievement for all is what the Consti­
tution demands.

D.

The Court Below Misapplied Its Rule O f Reason

The court below unduly emphasized racial balance. It 
also failed to recognize the relevance of the neighborhood 
school and the disadvantages for all races o f extensive 
compulsory busing. The neighborhood school has obvious 
social and educational advantages, particularly at the ele­
mentary level. It can be used with a number o f related tech­
niques reasonably applied, without destroying neighborhood 
advantages. Modern social scientists have developed many 
considerations that ought to be taken into account in de­
vising the plan that, giving weight to all relevant disparities, 
best promotes the educational achievement o f students of 
all races.



8

V .

A R G U M E N T

A.

The Origin O f Racial Segregation Is Irrelevant

In its consideration o f the question presented here, the 
Court o f Appeals, in the plurality opinion, went to some 
lengths to determine that the segregated pattern o f housing 
in Charlotte results from governmental action. W e consider 
this investigation irrelevant. W e consider it more than irrele­
vant ; it may be pernicious. It could lead to one set o f rules 
applying in one area o f our nation and another set apply­
ing in another. The constitutional right at issue here should 
be available to all citizens without regard to the fortuitous 
circumstance o f the racial history o f the places in which 
they live.

An Unsound Distinction

Such an investigation presupposes that one set o f rules 
applies where the origin o f racial segregation was de jure 
and another set where the origin was de facto. As an ex­
ample o f this distinction, reference is made to Deal v. Cin­
cinnati Board o f Education, 369 F.2d 55 (6th Cir. 1966), 
cert, denied, 389 U.S. 847 (1967). There, the Sixth Circuit 
held that the school board has no duty to bus students 
“ . . . for the sole purpose of alleviating racial imbalance that 
it did not cause . . . . ”  (369F.2d at 61 ).11

First, the question is not whether the State action is 
limited to schools; it is a matter o f State action in all phases 
o f race relationships such as public housing and zoning. In 
this context, it is probable that all racial segregation in the 11

11 See also Bell v. School City, 324 F.2d 209 (7th Cir. 1963), cert, 
denied, 377 U .S . 924 (1964).



9

United States, wherever occurring, has at some time been 
maintained or supported by governmental action.12 Thus 
there is no such thing as de facto segregation that is not of 
de jure origin in some degree. The distinction purportedly 
made in Deal cannot, then, be factually supported.13

State Action is Inevitable

But the vice lies deeper. Public schools are creatures of 
the State, and a State may not continue to operate through 
its local school boards or otherwise a system which denies 
a constitutional right. Thus, a school system which denies 
equal educational opportunity infringes protected rights. 
Whether such a system was State created or State assisted 
or merely State perpetuated is beside the point. If it de­
prives children o f equal educational opportunity, the Equal 
Protection Clause is infringed.

Uniformity o f Constitutional Rights

This conclusion is not only sound doctrine but desirable 
public policy. I f non-unitary school systems must be elim­
inated because they perpetuate racial segregation, they must 
be extirpated everywhere and not just in the former Con­
federate states. A  constitutional right ought not to be en­

12 In Appendix C to his opinion, Judge Hoffman complied a sum­
mary of governmental action in the various states. Beckett v. School 
Bd., 308 F. Supp. 1274, 1304, 1311-15. See also Racial Isolation in The 
Public Schools, U .S. Comm’n on Civil Rights 245, 254-59 (1967) ; M. 
Weinberg, Race and Place, Office of Education, U .S . Dept, of Health, 
Education and Welfare (1967).

13 See Freund, Civil Rights and the Limits of Law, 14 Buffalo L. 
Rev. 199, 205 (1964). On July 7, 1970, Ramsey Clark, former A t­
torney General of the United States, testifying before the Senate 
Select Committee on Equal Educational Opportunity, said:

“ In fact, there is no de facto segregation. All segregation re­
flects some past actions of our governments.”



10

forced in Virginia and denied enforcement in Ohio or 
Indiana because of the vagaries of history.

Professor Bickel has commented on this double standard. 
As he points out: “ Outside the South ..  . school segregation 
is massive, and has, indeed, increased substantially in recent 
years . . . caused mainly by residential patterns. Neverthe­
less, very few federal courts have tried to intervene [and] 
none has done so without qualification.” 14

In commenting on the incongruity of different rules 
issuing “ out o f the same federal judiciary” Professor Bickel 
spoke o f “ one binding rule of constitutional law for Man- 
hasset, New York” and “ a different rule of constitutional 
law for New York City.” 15 16

Such a situation, without precedent in constitutional doc­
trine, cannot be tolerated. Citizens are entitled to enforce­
ment o f constitutional rights evenly and consistently 
throughout the United States. The Constitution requires 
no less.18

B.

Racial Balance Is Not Required

Opponents of the school board plans insist upon sub­
stantial racial balancing in each school in a system. If, as in

14 A . Bickel, The Supreme Court and the Idea of Progress 131 
(1970). See also Racial Isolation in the Public Schools, supra, at 2-10.

15 Id. at p. 133. The Manhasset decision is found in Blocker v. 
Board of Educ., 229 F. Supp. 709 (E .D .N .Y . 1964).

16 This is, among other things, the purpose of S. 4167, 91st 
Cong., 2d Sess. (1970), introduced by Senator William B. Spong 
of Virginia (and a similar bill introduced in the House of Repre­
sentatives). Hearings on these bills have been held before ap­
propriate committees in both houses. See also Sobeloff and Winter, 
JJ-, concurring specially in Brewer v. School Bd., No. 14,544 (4th 
Cir., June 22 ,1970) (Norfolk).



11

Richmond, the overall student population ratio is 60% black 
and 40% white, these opponents contend that each school in 
the system must have substantially this ratio both of pupils 
and teachers.17

It is submitted that the racial balance concept is neither 
required by the Constitution nor is in the public interest. 
Indeed, if established as the “ law of the land,” its conse­
quences could be disastrous to public education.

The Decisions o f This Court

What Brown I  required, to assure equal educational op­
portunity, was the elimination o f racial segregation in the 
schools. Subsequent cases have added the affirmative man­
date that dual school systems must be eliminated and unitary 
systems established.18 These are the terms with which local 
school boards and lower courts have struggled. Some have 
construed them to require racial balancing; others, more 
perceptive we think, have recognized that this Court has 
never projected a mechanistic solution for a problem of 
such delicacy and diversity. Brown I  states:

. . because o f the wide applicability o f this decision, 
and because o f the great variety o f local conditions, 
the formulating of decrees in these cases presents prob­
lems of considerable complexity.”  347 U.S. at 495.

When the Court came to the problem of formulating de­
crees, it provided substantial latitude: 17 18

17 Beckett v. School Bd., 308 F. Supp. 1274, 1276 (E .D .V a. 
1969), stating the position of the plaintiffs. See Winter and Sobeloff, 
JJ., concurring in part and dissenting in part, in the court below in 
this case.

18 Green v. County School Bd., 391 U .S . 430 (1968) ; Alexander v. 
Holmes County Bd. of Educ., 396 U .S. 19 (1 9 6 9 ); Carter v. W est 
Feliciana School Bd., 396 U .S . 290 (1970).



12

“ In fashioning and effectuating the decrees, the 
courts will be guided by equitable principles. Tradi­
tionally equity has been characterized by a practical 
flexibility in shaping its remedies and by a facility for 
adjusting and reconciling public and private needs. 
These cases call for the exercise o f these traditional 
attributes o f equity power.”  349 U.S. at 300.

Further along in that opinion, Mr. Chief Justice Warren 
recognized that there were a number o f areas o f considera­
tion. He said:

“ To that end, the courts may consider problems related 
to administration, arising from the physical condition 
of the school plant, the school transportation system, 
personnel, revision o f school districts and attendance 
areas into compact units to achieve a system of de­
termining admission to the public schools on a non- 
racial basis, and revision o f local laws and regulations 
which may be necessary in solving the foregoing prob­
lems.”  349 U.S. at 300-01.

The approach remains unchanged. In Green v. County 
School Board, 391 U.S. 430 (1968), Mr. Justice Brennan 
said, speaking for the Court :

“ There is no universal answer to complex problems 
o f desegregation; there is obviously no one plan that 
will do the job in every case. The matter must be 
assessed in the light o f the circumstances present and 
the options available in each instance.”  391 U.S. at 439.

See also United States v. Montgomery Board o f Education, 
395 U.S. 225, 235 (1969). And Mr. Chief Justice Burger 
has made clear his view that there are a number o f areas 
other than (but including) transportation that must be 
given consideration. He said, concurring in the result in 
Northcross v. Board o f Education, 397 U.S. 232 (1970) :



13

. . we ought to resolve some of the basic practical 
problems when they are appropriately presented in­
cluding whether, as a constitutional matter, any par­
ticular racial balance must be achieved in the schools; 
to what extent school districts and zones may or must 
be altered as a constitutional matter; to what extent 
transportation may or must be provided to achieve the 
ends sought by prior holdings o f the Court.”  397 U.S. 
at 237.

This Court could hardly have more clearly stated its 
refusal to enunciate a mechanistic rule o f racial balance
in every case.

Racial Balance is Illusory

The issue before this Court is whether such a rule should 
now be established. Those who support it argue that it has 
the virtue of exactitude; that it would be easy for courts to 
adopt and administer; and that it would put an end to the in­
evitable litigation resulting from the application of a less 
definitive rule.

We suggest that these views misconceive both the consti­
tutional requirements and the realities of public education.

The racial mix varies widely among the cities and counties 
of this country. The range is from school districts which 
are perhaps 90% black (Washington, D. C. and Clarendon 
County, South Carolina19) to many districts which are 
nearly all white. The demography also constantly varies, es­
pecially within cities. The population ratio changes as citi­
zens move to suburban areas, and white and black families

19 See Brunson v. Board of Trustees, No. 14,571 (4th Cir., June 5, 
1970).



14

are constantly moving within cities. Racial balance estab­
lished one year would rarely be valid two or three years later.

The City of Richmond is not atypical. In 1960 the 
school population ratio was 55% black and 45% white. 
Prior to the annexation of a portion o f Chesterfield County 
on January 1, 1970, population shifts— some perhaps re­
lated to integration, but most to the normal desire to live 
in suburbia— had increased the ratio of black to 70%. An­
nexation temporarily reversed this trend, so that the black 
majority was reduced to about 60%. At the opening of the 
present school session, it has grown to 64%. No one be­
lieves it will remain there for as much as a year.

As shown in the Richmond case, population shifts within 
the city have been equally dramatic. Many previously white 
areas are now all black. But despite this shifting there are 
in Richmond— as in scores o f cities in the North and South 
— large areas populated entirely by blacks, with the fringes 
populated by the poorer whites.20

To impose, as urged by plaintiffs, an arbitrary per­
centage mixing in every school in Richmond would be as 
unrealistic as to impose such a scheme upon New York, 
Chicago, Philadelphia or Pittsburgh. Yet, if racial balance 
is a constitutional imperative, it is applicable to all commu­
nities at all times.

Racial Balance is Regressive

One wonders why compulsory racial balancing is ad­
vocated. It would be difficult to conceive o f a more certain 
way to assure a return, in countless communities, to es­
sentially separate schools— if not for whites and blacks, 
certainly for those in the lower income levels of both races.

20 Racial Isolation in the Public Schools, supra, at 19-20, 31.



15

The shorthand term, often used critically, is “ white 
flight.” Concurring opinions below criticize this exercise of 
freedom.21

But the connotation o f “white flight” misconceives the 
fundamentals. It is obviously true that since Brown the 
white exodus to suburbia has accelerated. It must be re­
membered, however, that the population movement from 
congested urban areas into suburban environments has long 
been characteristic of the American scene.22 It antedated 
Brown; it exists throughout our country, and indeed abroad; 
in its genesis, it bore no relation whatever to school integra­
tion. Indeed, the desire to move upward economically and 
socially— so basic to the American ideal— reflects itself no­
where as strongly as in the urge for a better residential 
environment. Often access to a particular neighborhood 
school is a dominant factor in selecting a new home site.

These ambitions cannot be suppressed by court decrees. 
The movement from congested urban areas will continue 
regardless of how this case is decided. But few would doubt 
that it will accelerate geometrically if the concept o f racial 
balance is enforced by law.23 Examples of the inevitable

21 See Sobeloff and Winter, JJ-, concurring in part and dissenting 
in part in this case and in Brunson v. Board of Trustees, supra, at 
n. 19. White flight is, of course, an erroneous term because middle 
income citizens of both races are seeking suburbia.

22 United States Census of Population: 1960, Standard Metropolitan 
Statistical Areas, Bureau of the Census, U .S . Dept, of Commerce 
1-257 (1963).

23 The trend toward private schools, especially in the South, will 
also be accelerated. There are some who say that the “ remedy” for 
this is the outlawing of private schools or withdrawing of their tax ad­
vantages. But this drastic solution would scarcely be acceptable to the 
public generally. In addition, it would require the overruling of Pierce 
v. Society of Sisters, 268 U .S . 511 (1925).



16

resegregation24 process are numerous, but Washington, 
D. C. suffices.

It is thus evident that enforced racial balance is both 
regressive and unproductive. It frustrates the aspirations 
o f Brown, namely, the promotion o f equal education oppor­
tunity; it assures in time the resegregation o f most o f the 
blacks in many urban communities. This will result in de­
teriorating educational opportunities both for the poorer 
blacks and whites who cannot afford to move.

In short, the end result is precisely the opposite of that 
desired; it widens the disparities between the lower and the 
middle-income families of both races.

The adverse economic and social consequences o f re­
segregation, however caused, also are disquieting. Prop­
erty values deteriorate; sources of local taxation shrink; all 
municipal services— as well as education— suffer; and— 
worst o f all— the quality of civic leadership erodes.25

The foregoing results, now known from experience to be 
predictable, are scarcely in the public interest. They sug­
gest the need for careful rethinking of proposals such as 
enforced racial balance which accelerate the process of 
urban deterioration.26

24“ [A ]t  the critical point— whatever it is— a formerly stable state 
of integration tends to deteriorate, being reflected by the exodus of 
white pupils. At the same time that this process is going on in the 
schools, the exodus of white residents is also apparent in the turnover 
of housing to the Negroes at only a slightly slower pace.” Civil Rights 
U .S .A .: Public Schools North and, W est, U .S . Comm’n on Civil 
Rights 185-86 (1962).

25 Kerner et al., Report of the National Advisory Commission on 
Civil Disorders 220 (1968).

26 Indeed, the integration of schools is only one aspect of the com­
plex of problems associated with urban life. The courts are ill-equipped 
to deal with these problems, which lie primarily within the province of 
the legislative and executive branches. The time may have come, 
with respect to the schools, for greater reliance upon the Congress as 
contemplated by Section 5 of the Fourteenth Amendment.



17

Restructuring o f Governmental Relationships

The results o f enforced racial balance could be sufficiently 
serious to prompt demands for restructuring o f federal and 
state relationships. The facile answer to population with­
drawal from urban areas is to enlarge the boundaries of 
school districts.27 But this cannot be done, either by judicial 
decree or federal legislation, without uprooting state consti­
tutional and statutory provisions with respect to the auton­
omy and authority o f local school boards and governmental 
subdivisions. And new and enlarged boundaries, wher­
ever drawn, would not long contain a mobile and unwilling 
population.

C.

The Highest Quality O f Education Must Be The Goal

If not racial balance, what is the alternative that is com­
patible with the Constitution and the goal o f quality educa­
tion for all? W e think there can be no single, inflexible rule. 
We start from principles settled by this Court: Racial dis­
crimination is a denial of equal educational opportunity; 
dual or segregated school systems are proscribed; and school 
authorities have an affirmative duty to establish unitary sys­
tems. These principles must be observed and applied, not as 
ends in themselves but as means o f achieving the educa­
tional goal. The alternative then, to simplistic racial mixing 
pursuant to formula, is to recognize that reasonable dis­
cretion must be allowed in the assignment of pupils and the 
administration of a school system so long as the foregoing 
principles are not contravened and the measures taken com­
port with the educational goal.

27 See Hobson v. Hanson, 269 F. Supp. 401, 515-16 (D .D .C . 1967), 
aff’d sub nom., Smuck v. Hobson, 408 F.2d 175 (D .C . Cir. 1969).



18

That education o f the best quality is the goal was clearly 
recognized in Brown I :

“ Today, education is perhaps the most important func­
tion o f state and local governments. Compulsory school 
attendance laws and the great expenditures for educa­
tion both demonstrate our recognition o f the impor­
tance of education to our democratic society. It is re­
quired in the performance of our most basic public 
responsibilities, even service in the armed forces. It is 
the very foundation of good citizenship. Today it is a 
principal instrument in awakening the child to cultural 
values, in preparing him for later professional train­
ing, and in helping him to adjust normally to his en­
vironment. In these days, it is doubtful that any child 
may reasonably be expected to succeed in life if he is 
denied the opportunity of an education. . . . ” 347 U.S. 
at 493.

It seems clear that desegregation by race is only one step 
along the road toward equal educational opportunity— an 
equal chance to obtain the best education that the particular 
system can provide. The goal is the best education for all; 
racial segregation is an impediment to be removed in striv­
ing to achieve that goal.

The best education, however, is not achieved solely through 
racial integration. In a recent article, Dr. David K. Cohen 
states that “ three major criteria o f equality seem to com­
pete as policy alternatives: equal resource allocation, de­
segregation, and equality o f educational outcome. . . .” 
Cohen, Defining Racial Equality in Education, 16 U.C.L.A. 
L. Rev. 255 (1969). But, as Dr. James Coleman, author of 
the famous Coleman Report,28 has concluded, equal resource 
allocation plus desegregation does not necessarily result in 
improved educational output. He said that “ [t]he result of

28 Equality of Educational Opportunity, Office of Education, U .S. 
Dept, of Health, Education and Welfare (1966).



19

the first two approaches (tangible input to the school, and 
[de]segregation) can certainly be translated into policy, 
but there is no good evidence that these policies will improve 
education’s effects. . . Coleman, The Concept o f Equality 
of Educational Opportunity, 38 Harv. Educ. Rev. 7, 17 
(1968). And the goal is, after all, the improvement of the 
effect of education.

This conclusion has received the concurrence o f Dr. 
Cohen. He states:

“ The problem, however, is that although desegrega­
tion and equal resources are educationally salient, both 
seem a good deal less strategic than achievement. Judg­
ments about the quality o f students’ education in 
America are certainly not made on a purely merito­
cratic basis, but students’ achievement still weighs more 
heavily in the balance than either the degree of racial 
integration, or the quality o f resources in their schools. 
The same thing is true o f the standards presently em­
ployed in assessing schools’ effectiveness. Equal 
achievement seems the most relevant standard o f racial 
equality.”  Cohen, Defining Racial Equality in Educa­
tion, 16 U.C.L.A. L. Rev. 255, 278 (1969).

Dr. Cohen concludes that the implicit assumption of 
Brown I  that desegregation and proper resource allocation 
would result in equal achievement was an erroneous one:

“ Experience and knowledge gained since then have 
shown that the two standards cannot be met by the 
same measures.” Id. at 280.

What, therefore, is the criterion? In Dr. Cohen’s words, 
it is equal achievement; in Dr. Coleman’s, it is educational 
output. What, in simpler terms, the school boards must seek 
and the courts must approve is the means to promote equal 
educational opportunity, regardness o f race, in a system 
structured for the highest achievement.



2 0

It seems strange that this goal is not mentioned by the 
court below. It places no emphasis whatsoever on the 
quality o f education. It seems mesmerized by race; it hardly 
seems to recognize that we are presented with an educa­
tional problem of which race is merely a facet.29

D.

The Court Below Misapplied Its Rule O f Reason

The Court o f Appeals in the Charlotte case adopted a 
“test of reasonableness,”  saying:

1. “ not every school in a unitary school system need 
be integrated.”

2. “ school boards must use all reasonable means to 
integrate the schools in their jurisdiction.”

3. Where all schools cannot reasonably be inte­
grated, “ school boards must take further steps to as­
sure that pupils are not excluded from integrated 
schools on the basis o f race.”

These views, we think, are compatible with the opinions 
o f this Court. They do not accept the mechanistic rule of 
racial balance.

But we believe the Court o f Appeals misconceived the ap­
plication of its own test. The focus, as is evident from the 
rejection of the school board plans in Charlotte, Norfolk and 
Richmond, was upon desegregation with little or no visible 
concern for the object o f desegregation, namely, improved 
educational opportunity for all students. W e think that the 
Court below departed from an appropriate test o f reason­
ableness particularly with respect to ( i )  its emphasis on

29 The District Judge in the Norfolk case commented correctly that 
the word “ education” does not even appear in the opinion of the 
Court of Appeals reversing his general approval of the Norfolk School 
Board’s plan. Beckett v. School Bd., Civil Action No. 2214 (E .D .Va., 
Aug. 14, 1970).



2 1

extensive compulsory busing and (ii) its misappreciation 
of the educational relevance o f neighborhood or community 
schools.

Compulsory Busing

There is nothing inherently wrong with transporting 
school children where this is necessary. In every rural school 
district busing is a necessity. In such districts in the South 
it was used for decades to implement segregation. In the 
Charlotte case, involving a large urban-rural school district, 
there was substantial necessary busing before the District 
Court undertook in effect to impose racial balance by ex­
tensive cross busing.

Even in an urban district some busing may be appro­
priate, contributing both to integration and sound educa­
tion. The problem, one so familiar in law, is one of degree 
and reasonableness. A  notable example of unreasonable 
busing in pursuit of racial balance is that ordered in Craw­
ford v. Board of Education.30 In that case the Los Angeles 
school board was ordered to establish a rigorously uniform 
racial balance throughout its 711-square-mile district, with 
its 775,000 children in 561 schools. This order, if upheld on 
appeal, would require the busing o f 240,000 students at a 
cost of $40 million for the first year and $20 million for 
each year thereafter with the result that the deficit of 
$34-54 million already confronting the school board would 
be increased by these amounts.31

30 No. 822, 854 (Cal. Super. Ct., Feb. 11 ,1970).
31N .Y . Times, Feb. 12, 1970, at 1, col. 5 (city ed.). President 

Nixon, in his statement of March 24, 1970, aptly states that rulings 
of this character “ . . . would divert such huge sums of money to 
non-educational purposes, and would create such severe disruption 
of public school systems, as to impair the primary function of provid­
ing a good education.”  Desegregation of America's Elementary and 
Secondary Schools, Weekly Compilation of Presidential Documents 
(March 30, 1970).



2 2

The preoccupation with “ racial mixing of bodies”32 has 
often caused the overlooking o f the social and educational 
disadvantages o f busing, especially at the elementary level.33 
It removes a child from a familiar environment and places 
him in a strange one; it separates the child from parental 
supervision for longer periods of time; it undermines the 
neighborhood or community school, so desirable at the 
elementary level; and it adds to already strained budgetary 
demands.

These are the considerations which have prompted the 
Congress, reflecting overwhelming public sentiment, three 
times to record its opposition to enforced busing merely to 
achieve racial balance.34

The Neighborhood School

We think that the Court below also largely ignored the 
educational advantages of the neighborhood school at the 
elementary level. The geographic neighborhood is the most 
common unit o f organization of urban elementary public 
schools.35 The neighborhood unit provides for ease of access 
to schools for students, minimizing costs and time of

32 In his memorandum decision of August 14, 1970, attempting to 
implement the mandate of the Circuit Court, Judge Hoffman com­
mented “that the benefits of sound education have now been clearly 
subordinated to the requirement that racial bodies be mixed.”  
See also Beckett v. School Bd., 308 F. Supp. at 1302.

33 A  disturbing aspect of seeking racial balance at any cost is that 
children too often are treated as pawns to produce sociological changes 
that are related more to other factors, such as housing, than to edu­
cation.

34 Civil Rights Act of 1964, 42 U .S.C . § 2000c(b) (1964) ; Ele­
mentary and Secondary Education Act of 1965, 20 U .S.C. § 884 
(1966), amending 20 U.S.C. § 884 (1965) ; Education Appropriations 
Act of 1971, P.L. 91-380, 91st Cong., 2d Sess., §§ 209, 210 (1970).

35 New York City’s current experiment in decentralization is 
further evidence of the vitality of the neighborhood or community 
concept. N .Y . Times, Sept. 13, 1970, at 1, col. 2.



23

travel to and from school, and thus maximizing the po­
tential extracurricular role schools can play in the lives 
both of parents and children. These factors, along with 
the associational benefits o f attending school with friends 
which, particularly for elementary school children, ease 
the psychological stress of initial adjustment to school, 
have led such a noted educator as James B. Conant, former 
President of Harvard University, to the conclusion that 
“ [a]t the elementary school level the issue seems clear. To 
send young children day after day to distant schools seems 
out of the question.” 36

The quality of a community’s education depends ulti­
mately upon the level o f public suport.37 A  willingness to 
pay increased taxes and to vote for bond issues can evapo­
rate quickly in the face of enforced busing and dismantling 
of neighborhood schools where such actions do not con­
tribute to improved education for all.

Educational effectiveness also is dependent on the attitude 
of parents toward their children’s education, and rationally 
configured systems of neighborhood schools play a vital 
role. Parental support of their children’s schooling normally 
reinforces the efforts of their children’s teachers in sub­
stantial measure;38 to the degree that schools can involve 
parents with their children’s education as such,39 or broaden 
the parents’ own educational horizons,40 this end is served. 
Community schools, when designed in such a way as to 
avoid the feelings of disaffection which attend systematic

36 J. Conant, Slums and Suburbs 29 (1961).
37 A  current dramatic example of the financial crisis in public edu­

cation across the country is found in St. Louis, Missouri, where tax­
payers in four suburban school districts north of the city have shut 
46,000 pupils out of classes by consistently defeating school tax levies. 
N .Y . Times, Sept. 14, 1970, at 1, col. 3.

38 M . Weinberg, Desegregation Research: An Analysis 140-41 
(1968).

39 Christian Science Monitor, Aug. 14, 1970, at 11, col. 1.
40 C. Hansen, Danger in Washington 81 (1968).



24

ghettoization, whatever its origin, foster such an active 
parental role because of their very accessibility.

Further, the accessibility o f community schools mini­
mizes the cost o f school transportation for students. Pro­
vision of substantial transportation at public cost solely for 
the purpose o f attaining racial balance diverts resources 
which might otherwise be used, in a neighborhood scheme 
consistent with students’ constitutional rights, for more 
directly constructive educational purposes. Where the cost 
o f such transportation is borne privately by the families of 
students— assuming that public transportation facilities are 
adequate to cover the necessary specialized routes— it strikes 
regressively, imposing a heavier burden on the poor than 
on the affluent.

This Court in Brown II, in suggesting “ 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”41 as a means of complying with the equal- 
educational-opportunity requirement o f Brown I, implicitly 
recognized the advantages o f the community school sys­
tem.42

The unique educational advantages o f the neighborhood 
school system, where it is administered in a manner con­
sistent with the Equal Protection Clause, result in the 
accomplishment o f the ultimate goal o f that clause: the 
best possible education for all children. Pursuit o f absolute 
racial balance in major metropolitan areas through the use 
o f extensive busing of students deprives the school system 
of the singular advantages of the neighborhood concept, 
and in at least this respect thwarts the attainment o f equal 
educational opportunity.

41 349 U .S . at 300-01.
42 These advantages were well expressed in Deal v. Cincinnati Bd. 

of Educ., 369 F.2d 55 (6th Cir. 1966), cert, denied 359 U .S  847 
(1967).



25

It has frequently been pointed out that neighborhood 
school systems have, on occasion, come into existence for 
the purpose o f fostering racial segregation.43 But this fact 
should no more prejudice consideration o f the intrinsic edu­
cational merits of a racially satisfactory neighborhood 
school system than should these merits justify it when it is 
administered in a fashion which entrenches unconstitutional 
racial imbalance.

Other Considerations

The community school concept is capable of flexible 
administration: zoning, pairing, clustering, and siting of 
school buildings all are techniques which may be used, con­
sistent with its advantages, and should be, when reasonable, 
to fulfill constitutional requirements. In addition, a majority- 
to-minority transfer option and specialized learning centers 
may be provided to ameliorate the effect of residential segre­
gation. Techniques which destroy the advantages o f the 
community school in pursuit only o f mechanistic racial bal­
ance in the name of the Fourteenth Amendment tend to 
negate the very educational values in whose service they 
are invoked.

But these are measures that are customarily used in the 
racial desegregation context; they are by no means all of the 
factors to be taken into account in devising a plan designed 
to promote educational achievement for all students to the 
utmost.

Modern social scientists have developed studies that take 
into account a number o f other factors. These include a de­
termination o f the racial mix that will maximize educa­
tional achievement, development o f plans that maximize 
use of physical facilities, teachers and staff, avoidance o f

43 See, e.g., Racial Isolation in the Public Schools, U .S . Comm’n 
on Civil Rights 252 (1967).



26

resegregation and “ white flight,”  consideration of the de­
sirable socio-economic mix, preservation o f the cultural 
uniqueness and autonomy of the individual student, giving 
effect to positive and realistic educational and vocational 
aspirations and other relevant factors o f equal importance.44

Such evidence is sound and available.45 Plans based on 
such studies will result in greater educational achieve­
ment. Education is not based on race alone. That plan is 
the best plan that provides the best opportunity for educa­
tional achievement for all students. In the preparation of 
such a plan, racial imbalance is a consideration, but it is 
not the controlling factor.

It is in this light, we conceive, that the rule o f reason 
postulated by the court below should be applied. The rule 
o f reason makes little sense when it is couched in purely 
racial terms. The creation of racial balance by massive 
busing may eliminate racial segregation, but it may harm 
the general level of educational achievement. What schools 
need desperately is to improve that level. This Court should 
provide a more realistic approach to achieve that end.

V I.

C O N CLU SIO N

The Court has the opportunity in this case to resolve the 
principal issues which have confused and divided the lower

44 See, e.g., M . Weinberg, Desegregation Research: An Analysis, 
supra; Equality of Educational Opportunity, supra.

45 Evidence of this nature was presented in the Norfolk case by 
Dr. Thomas F. Pettigrew and disregarded without mention by the 
Circuit Court. But Dr. Pettigrew’s evidence in the Norfolk case is 
substantially the entire basis for the opinion of three of the judges in 
the Clarendon case. See Craven, J., concurring and dissenting in 
Brunson v. Board of Trustees, No. 14,571 (4th Cir., June 5, 1970). 
If testimony of this character may be used as a basis for decision in 
one case, it clearly deserves consideration in another.



27

courts and school authorities. We respectfully suggest, for 
the reasons that we have stated, the following:

(i) The purported distinction between de jure and de 
facto racial segregation should be rejected. It can be sup­
ported neither factually nor consistently with constitutional 
principles. The right to equal educational opportunity must 
be uniform throughout the United States.

(ii) The concept of racial balance is not a constitutional 
imperative. If pursued as an end in itself, rather than as a 
factor to be considered, this concept accelerates the process 
of resegregation and frustrates the attainment o f sound 
educational goals.

(iii) The Constitution does not delineate the extent to 
which the transportation of pupils may or must be provided 
to achieve and maintain a unitary school system. Nor does 
the Constitution prescribe the extent to which school at­
tendance zones may or must be altered for this purpose.

(iv) The principles settled by this Court must be ob­
served : racial discrimination is a denial of equal educational 
opportunity; dual or segregated school systems are pro­
scribed; and school authorities have an affirmative duty to 
maintain unitary systems. But these principles must be ap­
plied as the means o f maximizing the educational oppor­
tunity for all students. A  reasonable discretion must be 
allowed school authorities in assigning pupils and adminis­
tering a school system so long as these principles are not 
contravened and the measures taken comport with the edu­
cational goal.

(v ) School authorities should give appropriate weight 
to the educational advantages of the neighborhood or com­
munity schools and the disadvantages o f extensive cross 
busing in urban areas, especially for young children.



28

(v i) In devising plans to assure a unitary school system, 
all relevant techniques may be considered, including the re­
alignment of attendance zones, the flexible utilization of 
school facilities, and the assurance of opportunities for 
interracial learning experience.

(vii) Perhaps the overriding need is to shift the empha­
sis from a mechanistic approach of integration as an end 
in itself to the goal desired by every citizen: Equal educa­
tional opportunity in a school system structured for the
highest achievement by all students.

It is not too much to say that public education is in a 
state of serious disarray, with increasing evidence o f erod­
ing public support. The problems and confusion relating 
to integration are a contributing though not the only cause. 
The time has come for a clarification of the principles to be 
applied by the courts. W e respectfully submit that those 
outlined above are consistent both with constitutional re­
quirements and the urgent need for improved education.

Dated September 16, 1970

Respectfully submitted,
A ndrew P. M iller

Attorney General of Virginia 
W illiam  G. Broaddus 
T heodore J. Markow

Assistant Attorneys General 
Supreme Court Building 
Richmond, Virginia 23219

Lewis F. Powell, Jr. 
John W . R iely 
George H. H ettrick 
Guy K. T ower

H unton, W illiams, Gay, 
Powell & Gibson 

Of Counsel

Special Counsel 
700 East Main Street 
Richmond, Virginia 23219







IN THE

SUPREME COURT OF THE UNITED STATES
October Term, 1970

No. 281

JAMES E. SWANN, ET AL.,

Petitioners,
v.

CHARLOTTE-MECKLENBURG 
BOARD OF EDUCATION, ET AL.,

Respondents.

AMICUS CURIAE BRIEF 
OF

GOVERNOR CLAUDE R. KIRK, JR.

CLAUDE R. KIRK, JR. 
Governor of Florida 
The Capitol 
Tallahassee, Florida

Of Counsel:

GERALD MAGER 
General Counsel to the 

Governor 
The Capitol 
Tallahassee, Florida



*



1

INDEX

Page
Introduction

A. Consent for Filing 1
B. Preliminary Statement 2
C. Issues Involved 3

Discussion

A. Failure of Courts to Provide Guidelines 3
B. Neighborhood School Concept 6
C. Busing to Achieve Racial Balance, Maintaining a

Racial Balance—Equal Educational Opportunities 8
D. De Jure—De Facto Distinction 14

E. Consideration of Race is Unconstitutional—Pro­
portionate Representation Prohibited 19

F. Distinction between Schools not Mathematically
Integrated and Segregated Schools 23

G. Meaning of Fourth Circuit Court’s Decision—Rule
of Reason 25

H. Issues Court Must Resolve 27

Conclusion 31

Appendix

Certificate of Service



11

AUTHORITY TO FILE

Cases Page
Alexander v. Holmes County, (1969) 396 US 19,

24 L.Ed.2d. 19 19, 23

Allen v. Board of Public Instruction of Broward 
County, Slip Opinion Number 30032, Aug. 18,
1970 23

Bell v. School City of Gary, Indiana, U.S.C.A., 7 
Cir. (1963) 324 F.2d. 209, cert, denied, 377 U.S.
924, 84 S.Ct. 1223; 12 L.Ed.2d. 216 19

Bivins v Bibb County Board of Public Education,
U.S.D.C., M.D. Ga. (Jan. 21, 1970) N o. 1926 10

Briggs v. Elliott, E.D.S.C. (1955) 132 F. Supp. 776 16

Brown v. Board of Education, (1955) 349 U.S. 294,
99 L.Ed. 1083, 1089 22

Carter v. West Feliciana Parish School Board, et al.
U.S.D.C., S.D. Ala., Case N o. 28,340 11

Cassell v. Texas, (1950) 339 U.S. 282; 94 L.Ed. 840,
847; 339 U.S. 291, 94 L.Ed. 849 19

Deal v. Cincinnati Board of Education, U.S.C.A., 6 
Cir. (1966) 369 F.2d. 55 (Deal I) cert, denied,
389 US 847, 88 S.Ct. 39, 19 L.Ed.2d. 114 9, 13

Deal v. Cincinnati Board of Public Instruction,
U.S.C.A., 6 Cir. (1969) 419 F.2d. 1387, 1391-2
{Deal II) 7, 10

Downs v. Board of Education of Kansas City,
U.S.C.A. 10 Cir., (1964) 336 F.2d. 988, cert.



Ill

Cases Page
denied, 380 US 914, 85 S.Ct. 898, 13 L.Ed. 2d.
800 19

Ellis v. Orange Comity Board of Public Instruc­
tion, U.S.C.A., 5 Cir. M.D. Fla. (Feb. 17, 1970)
No. 29,124 6, 18

Gilliam v. School Board of City of Hopewell, Va.
U.S.C.A., 4 Cir., 345 F.2d. 325 11

Goins v. Allgood, U.S.C.A., 5 Cir. (1968) 391 F.2d.
692 20

Green v. County School Board of New Kent 
County, (1968) 391 U.S. 430, 439, 88 S.Ct. 1689,
20 F.2d. 716 29

Harvest, et al. v. Board of Public Instruction of 
Manatee County, et al., Slip Opinion N o. 29425,
5 Cir., June 26, 1970 12

Henry v. Clarksdale Municipal Separate School Dis­
trict, U.S.C.A., 5 Cir., (1969) 409 F.2d. 682 11

Holland v. Board of Public Instruction of Palm 
Beach County, U.S.C.A., 5 Cir. (1958) 258 F.2d.
730 19

Kelley, et al. v. Aletropolitan County Board of Edu­
cation of Nashville and Davidson County, Ten­
nessee, et al., U.S.D.C. Nashville Div., M.D.
August 25, 1970 3 1

Northcrossvs. Board of Education, (1 9 70 )-------U.S.
------ , 25 L.Ed.2d. 246, 250 27

Singleton v. Jackson Municipal Separate School Dis­
trict, et al., U.S.C.A., 5 Cir., Case N o. 26,285 4, 5, 11,
(January 21, 1970) 18, 31, 33



IV

Cases Page
Singleton, et al. v. Jackson Municipal Separate 

School District, et al., U.S.C.A. 5 Cir., Case N o.
29,226 (M ay 5, 1970) 6

Swain v. Alabama, (1965) 380 U.S. 202, 208; 13 
L.Ed.2d. 759, 766 20

Taylor v. Board of Education of City School Dis­
trict of New Rochelle, U.S.C.A., 2 Cir. (1961)
294 F.2d. 36 10

Tho??ne v. Houston County Board of Education,
U.S.D.C., M.D. Ga. (January 21, 1970) N o. 2077 10

U.S. v. Jefferson County Board of Education,
U.S.C.A. 5 Cir. (1966), 372 F.2d. 836 (Jefferson 
I) affirmed and adopted en banc 380 F.2d. 385,
(Jefferson II) cert, denied sub. nom., Caddo
Parish School Board v. United States (1967) 389 9, 12, 14,
U.S. 840, 88 S.Ct. 67, 19 L.Ed.2d. 103 15, 17

U.S. v. Wiman, U.S.C.A., 5 Cir. (1962) 304 F.2d. 53 20

Other

Civil Rights A ct o f 1964
Section 401(b) 8
Section 407(a) 8, 9

Fourteenth Amendment, U.S. Constitution 21, 22

Statement by the President on Elementary and 
Secondary School Desegregation, March 4, 1970 26, 29, 32



IN THE

SUPREME COURT OF THE UNITED STATES
October Term, 1970

No. 281

JAMES E. SWANN, ET AL„

Petitioners,

v.

CHARLOTTE-MECKLENBURG 
BOARD OF EDUCATION, ET AL„

Respondents.

AMICUS CURIAE BRIEF 
OF

GOVERNOR CLAUDE R. KIRK, JR.

INTRODUCTION

I.

CONSENT FOR FILING

In accordance with Rule 42 o f the Supreme Court Rules, 
written consent to the filing o f this Brief has been granted by 
the Petitioners and Respondents in this cause. (Appendix 
hereto Exhibit B 35— 6)



7

PRELIMINARY STATEMENT

Claude R. Kirk, Jr., as Governor of the State of Florida, 
files this Brief as Amicus Curiae for the purpose of presenting 
to this Court, legal considerations which may be of assistance 
in the ultimate disposition of the issues. Amicus respectfully 
submits that he is not conversant with all the factual con­
siderations; and, consequently, will endeavor to rely upon the 
factual representations contained in the Briefs filed by the 
parties in the presentation of any legal considerations to this 
Court.

The Governor appeared as Amicus Curiae in the proceed­
ings before the Fourth Circuit Court of Appeals. The Gover­
nor also has appeared both as a party and as Amicus in numer­
ous judicial proceedings before the district courts of the State 
of Florida, Fifth Circuit Court of Appeals, and this Honorable 
Court. In an original suit instituted in this Court in January, 
the Governor sought to have this Court declare and define the 
meaning of a “unitary system,” thereby fixing an ascertainable 
standard of conduct to be followed by the school boards in 
all states. The suit further sought to have this Court declare 
that no state of the United States, in establishing a unitary 
system, be compelled to transport pupils for the purpose of 
achieving a racial balance. Unfortunately, the Court dismissed 
the suit for lack of jurisdiction.

The legal issues involved in this cause are also strikingly 
similar to those previously considered by the Fifth Circuit 
Court of Appeals and the District Courts in Florida. Recent 
decisions by the Fifth Circuit and the District Court clearly 
demonstrate the necessity for this Court to resolve clearly and 
unmistakably, once and for all, questions of busing and balance.

II.



3

III.

ISSUES INVOLVED

1. Does the Constitution require or permit the courts to 
order the busing of pupils for the purpose of achieving 
a racial balance?

2. Does the Constitution require or permit the courts to 
direct school boards to adopt plans designed to bring about 
mathematical racial balances within school systems?

IV.

DISCUSSION OF ISSUES

The Constitution neither requires nor permits the courts to 
direct the establishment of a mathematical racial balance 
whether by busing or otherwise.

It was the position o f Amicus before the Fourth Circuit 
Court o f Appeals, and it remains the position o f Amicus before 
this Court, that the concept o f forced busing, that is to say 
involuntary transportation o f pupils from one school to an­
other for the purpose o f achieving racial balance, and the con­
cept o f establishing a racial balance, whether by busing or 
otherwise, is neither required nor permitted under the Con­
stitution o f the United States and is inconsistent with the Civil 
Rights A ct o f 1964, the statements made by the President of 
the United States on Elementary and Secondary School De­
segregation and applicable judicial declarations.

Amicus respectfully submits that we are where we are today 
largely as a result of the failure of the Courts to provide the 
necessary guidance. This was so aptly pointed out by Judge



4

Coleman in his dissent in Singleton v. Jackson Municipal 
Separate School District, et al., U.S.C.A., 5 Cir., Case N o. 
26,285 (January 21, 1970), when he observed:

“ What I dissent from is the continuing failure o f this 
Court to provide a lighthouse in the new storm which is 
upon us. The school authorities and the District Judges 
need something to steer by.

In United States v. Jefferson County Board o f Educa­
tion, 372 F.2d 836, 380 F.2d 385 (1966 and 1967), when 
freedom of choice was an acceptable method o f seeking 
desegregation, this Court formulated a detailed decree for 
use by the District Courts and forbade any variation there­
from. N ow  that freedom o f choice is held to have gen­
erally failed we lapse into silence and wash our hands in 
the water o f taciturnity. I strongly protest this approach.
In Jefferson I, 372, F.2d 836, 849 (1966), the majority 
announced, ‘W e grasp the nettle.’ I think the District 
Courts need help. They are being forced to act without 
our answer to many unanswered questions. I shall dis­
cuss some o f them and state my view o f what answers 
ought to be.

On September 30, 1969, at an en banc session in N ew  
Orleans, this Court ordered the cases now before us to be 
considered en banc. W e were acutely aware o f the critical 
nature o f the problem— critical for the eradication o f un­
constitutional discrimination and critical for the future o f 
public education, the great hope o f nearly all children, 
black and white. It was my understanding then that upon 
the en banc hearing in Houston on November 17, 1969, 
we would attempt to supply some judicial compasses for



5

use in a forest which had not been anticipated in 1966. 
Regrettably, we did not really do so.

Certainly as the Supreme Court said in Brown II, and 
as we have often repeated, local school authorities have 
the primary responsibility for elucidating, assessing, and 
solving these problems, 349 U.S. 299. It does no good now 
to say that these school districts have had fifteen years in 
which to do something and have not done it. As a matter 
of fact, most of the school districts now before us, if not 
all of them, have been under the supervision of the federal 
courts for as much as five years. I think it is quite clear 
what this proves.

Regardless of who is, or has been at fault, the Supreme 
Court has told us in no uncertain terms that it will brook 
no further delays. Do we, then, stand by and see innu­
merable schools go crashing on the rocks and educational 
processes seriously impaired or shall we bestir ourselves 
and advance judicial solutions which will dismantle the 
dual school system without dismantling the schools as 
well? Samson slew his enemies, all right, but he likewise 
destroyed the hall and liquidated himself—all because of 
bad judgment, previously exercised.” (emphasis ours)

Judge Clark joined with Judge Coleman in a separate dissent 
in Singleton, supra, and also expressed a deep concern about 
the failure of the higher courts to provide the necessary 
specifics to assist the lower courts in determining constitu­
tionally acceptable plans. Judge Clark keenly observed:

“Nobody knows what constitutes ‘a unitary school sys­
tem within which no person is to be effectively excluded 
from any school because of race or color.’ This is not to



6

say that this court hasn’t drawn some negative limits 
around the phrase ‘unitary school.’ W e have frequently 
decreed that systems coming before us were not unitary 
for one reason or another. However, what is here urged 
is our duty to speak affirmatively, to tell the litigants, in 
advance o f attacks made on them, precisely what such a 
‘unitary system’ is. W e have said such a system must be 
racially integrated and that its faculty must approximate 
the racial balance o f the whole system. These are the only 
affirmatives known.”

It was not until the decision by the Fifth Circuit Court of 
Appeals in Ellis v. Orange County Board of Public Instruction, 
U.S.C.A., 5 Cir., M.D. Fla. (February 17, 1970) N o. 29,124, 
(see also Singleton, et al. v. Jackson Municipal Separate School 
District, et al., U.S.C.A. 5 Cir., Case N o. 29,226, May 5, 1970) 
that we had some indication o f an acceptable educationally 
sound approach to the establishment o f a unitary school sys­
tem— namely the neighborhood school concept without the 
necessity o f forced bussing. In Ellis, the Fifth Circuit Court 
observed in part:

“ As stated, based on the supplemental findings o f fact, it 
appears that a true neighborhood assignment system, 
assigning students to the school nearest the student’s home 
up to the capacity o f the given school, will result in the 
desegregation o f eight o f the remaining eleven all-Negro 
student body schools in the Orange County, system, 
leaving three elementary schools.”

* # # # # #

“ There are a number o f all-white student body schools in 
the Orange County system. This is due to the prepon­
derant white student population (82 percent) and to



7

residential patterns. The three all-Negro student body 
schools which will remain, if the neighborhood assign­
ment system is properly invoked, are also the result of 
residential patterns. The majority to minority transfer 
provision under the leadership of the bi-racial com­
mittee is a tool to alleviate these conditions now. Site 
location, also under the guidance of the bi-racial 
committee, will guarantee elimination in the future.
In addition, open housing, Title VIII, Civil Rights Act 
of 1968, 42 USCA, SS 3601, Et Seq., Jones v. Mayer, 
1968, 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189, 
will serve to prevent neighborhood entrapment.”

Ample precedent for the neighborhood school system is 
reflected in Deal v. Cincinnati Board of Public Instruction, 
U.S.C.A., 6 Cir., 1969, 419 F.2d. 1387, 1391-2 (Deal II):

“ ‘The neighborhood system is in wide use through­
out the nation and has been for many years the basis of 
school administration. This is so because it is acknowl­
edged to have several valuable aspects which are an aid to 
education, such as minimization of safety hazards to chil­
dren in reaching school, economy of cost in reducing 
transportation needs, ease of pupil placement and admin­
istration through use of neutral, easily determined 
standards, and better home-school communications.’ ”

# # # * # #

“ In Northcross v. Board of Education of the City of 
Memphis, Tennessee., 302 F.2d. 818 (6th Cir. 1962), 
cert, denied, 370 U.S. 944, we outlined the minimal re­
quirements for non-racial schools:

‘Minimal requirements for non-racial schools are 
geographic zoning, according to the capacity and



8

facilities o f the buildings and admission to a school 
according to residence as a matter o f right.’ Id. at 
823.”

The plan which was approved by the District Court in this 
case, as we understand it, involves extensive busing for the 
purpose o f achieving racial balance and, apparently, rejects 
the reasonable efforts made by the Charlotte-Mecklenburg 
Board o f Education to implement an assignment plan based 
on the neighborhood school concept and not on racial quotas. 
Although there is some indication that the order o f the Dis­
trict Court was not promulgated to achieve a “ racial bal­
ance,” the fact that the court directed the balancing o f cer­
tain schools demonstrates that the achieving o f a racial 
balance was a controlling factor in the court’s determination. 
Although this may not have been the lower court’s intention, 
the fact remains from our understanding o f the approved 
plan, that there is extensive involuntary busing for the pur­
pose of achieving a racial balance. The clear wording and the 
intent o f the Civil Rights Act o f 1964 completely negates 
any intention to approved forced busing.

Section 401(b) o f the Civil Rights Act o f 1964 provides 
as follows:

“  ‘Desegregation’ means the assignment o f students to 
public schools and within such schools without regard to 
their race, color, religion, or national origin, but ‘de­
segregation’ shall not mean the assignment of students to 
public schools in order to overcome racial imbalance.” 
(emphasis ours)

Section 407(a) o f the Civil Rights Act o f 1964 provides 
in part as follows:



9

. . provided that nothing herein shall empower any 
official or court o f the United States to issue any order 
seeking to achieve a racial balance in any school by re­
quiring the transportation o f 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 o f the court to insure compliance with 
constitutional standards. . (42 U.S.C. Sec. 2000c-6 (a ) )

In U. S. v. Jefferson County Board of Education, U.S.C.A., 
5. Cir. (1966), 372 F.2d. 836 (Jefferson I) affirmed and 
adopted en banc 380 F.2d. 385, (Jefferson II) cert, denied 
sub. nom. Caddo Parish School Board v. United States (1967) 
389 US 840, 88 S.Ct. 67, 19 L.Ed. 103, this Court, in Jeffer­
son I observed at page 856:

“ . . . When Congress declares national policy, the duty 
the two other coordinate branches owe to the Nation 
requires that, within the law, the judiciary and the execu­
tive respect and carry out that policy. . .”

In the enactment o f Section 407 (a), supra, Congress de­
clared a national policy with regard to the busing o f pupils 
solely to achieve a racial balance. Unless Section 407 (a), 
supra, is declared to be unconstitutional and void, having no 
force and effect, it is respectfully suggested that the provi­
sions of this A ct are applicable and controlling.

In Deal v. Cincinnati Board of Education, U.S.C.A., 6 Cir. 
(1966) 369 F.2d. 55, (Deal I) cert, denied 389 US 847, 88 
S.Ct. 39, 19 L.Ed.2d. 114, the United States Court of Appeals 
for the Sixth Circuit held:

“We hold that there is no constitutional duty on the part 
of the Board to bus Negro or white children out of their



10

neighborhoods or to transfer classes for the sole purpose 
of alleviating racial imbalance that it did not cause, nor 
is there a like duty to select new school sites solely in 
furtherance of such a purpose.” (emphasis ours)

See also Deal v. Cincinnati Board of Education, supra, (Deal 
II); Bivins v. Bibb County Board of Public Education, 
'U.S.D.C., M.D. Ga. (January 21, 1970) N o . 1926; and 
Thomie v. Houston County Board of Education, U.S.D.C., 
M.D. Ga. (January 21, 1970) N o . 2077.

In Taylor v. Board of Education of City School District 
of New Rochelle, U .S .C .A ., 2 Cir. (1961) 294 F.2d. 36, 
Judge M oore, in his dissent observed at page 41:

“The best account of the problems presented to the 
Board during the last ten years (1 9 5 0 -1 9 6 0 ) is found in 
the testimony of Kenneth B. Low who from 1950 to 
1960 served on the Board and was its President from 
1958 to 1960. He had had a distinguished career in the 
field of interracial relations and for seven years had 
served as Chairman of the Westchester County Council 
appointed by the State Commission Against Discrimina­
tion . . . ‘Solutions, he said, which sent ‘youngsters out 
of the district because of their r a c e as  discussed before 
the Board brought about discrimination in reverse be­
cause you are creating special conditions for people on 
account of their race and that it could and perhaps 
should apply equally to other schools which had either a 
racial imbalance or a religious imbalance of national 
backgrounds, and the result is that it would establish a 
precedent for sending children, because of any of these 
factors, to schools, which was believed to be a violation 
of basic principle.’ (One school was over 9 0 %  Jewish



11

and one over 90% Italian.) ‘But (said Mr. Low ) I am 
not going to violate what I consider to be basic constitu­
tional principles, and the mere fact that this (Lincoln) 
happens to be a badly imbalanced racial school is not due 
to any act o f the Board o f Education. It is a residential 
condition.’ ”  (emphasis ours)

If the courts are required to correct racial imbalances, then 
they would also be equally required to correct religious im­
balances or imbalances of national backgrounds. It is respect­
fully suggested that the courts cannot constitutionally make 
a selective distinction between religious or racial imbalance 
and that it would be inviting the opening of a Pandora’s box 
if correction of any type of mathematical imbalance becomes 
a constitutional imperative.

The comments made by Judge Coleman in Carter v. West 
Feliciana Parish School Board, et al., U.S.D.C., S.D. Ala., 
Case No. 28,340, and Singleton v. Jackson Municipal Sep­
arate School District, supra, are indeed pertinent:

“The High Court has never arbitrarily commanded that 
there must be racial balance in the student body of any 
school purely for the sake of racial balance. It has never 
commanded that little children be required to walk un­
reasonable distances, or to be bussed to strange commu­
nities just to obtain racial balance. It has ordered us to quit 
operating two systems within a system, one all black, and 
one all white, judges by five criteria, not one. Neither has 
it left the door open to tokenism.” (emphasis ours)

Judge Cox, in his dissenting opinion, in Henry v. Clarks dale 
Municipal Separate School District, U.S.C.A., 5 Cir. (1969) 
409 F.2d. 682 at page 692, refers to the holding in Gilliam v.



1 2

School Board of City of Hopewell, Va., U.S.C.A., 4 Cir., 345 
F.2d. 325, as follows:

“ . The constitution does not require the abandon­
ment of neighborhood schools and the transportation of 
pupils from one area to another solely for the purpose of 
mixing the races in the schools. . ”

In Jefferson I, supra, at page 847, footnote 5, the Fifth Cir­
cuit, while indicating that in its opinion, racial balance was to be 
given a high priority, it is not constitutionally required:

. . The law does not require a maximum of racial 
mixing or striking a racial balance accurately reflecting 
the racial composition of the community or the school 
population. It does not require that each and every child 
shall attend a racially balanced school. . .”

In Harvest, et al. v. Board of Public Instruction of Mana­
tee County, et al., slip Opinion N o. 29425, 5 Cir., June 26, 
1970, Judge Clark in an opinion concurring with the ma­
jority commenting on the Fourth Circuit’s decision in the 
instance cause observed in part:

“ . . . The court there emphasized what the district 
court here has consistently recognized—that racial bal­
ancing is not the sine qua non of a unitary system—that 
educational reasonableness and realities must prevail over 
any artificial racial ratios. .

In a dissenting opinion written by Judge Bell (Judge Bell 
wrote the majority opinion in Ellis v. Board of Public In­
struction of Orange County, Supra) in Jefferson II, supra, 
it is observed in part at page 417:



13

. . The Supreme Court has not said that every school 
must have children from each race in its student body, 
or that every school room must contain children from each 
race, or that there must be a racial balance or a near racial 
balance, or that there be assignments of children based on 
race to accomplish a result of substantial integration. The 
Constitution does not require such. We would do well to 
‘stick to our last’ so as to carry out the Supreme Court’s 
present direction. It is no time for new notions of what a 
free society embraces. Integration is not an end in itself; 
a fair chance to attain personal dignity through equal edu­
cational opportunity is the goal. . .” (emphasis ours)

In Deal I, supra, Chief Judge Weick similarly observed 
at page 59:

“ . . . If factors outside the schools operate to deprive 
some children of some of the existing choices, the school 
board is certainly not responsible therefor.

“Appellants, however, argue that the state must take 
affirmative steps to balance the schools to counteract the 
variety of private pressures that now operate to restrict 
the range of choices presented to each school child. Such 
a theory of constitutional duty would destroy the well- 
settled principle that the Fourteenth Amendment governs 
only state action. Under such a theory, all action would 
be state action, either because the state itself had moved 
directly, or because some private person had acted and 
thereby created the supposed duty of the state to coun­
teract any consequences.



14

The standard to be applied is ‘equal educational op­
portunity’ . The Court in Brown cast its decision thus 
because it recognized that it was both unnecessary and 
impossible to require that each child come through the 
complex process of modern education with the same end 
result. This approach grants due respect for the unavoid­
able consequences of variations in individual ability, 
home environment, economic circumstances, and occu­
pational aspirations. Equal opportunity requires that 
each child start the race without arbitrary official handi­
caps; it does not require that each shall finish in the same 
time.” (emphasis ours)

It appears that whether busing to achieve racial balance is 
permissible has been held to depend on a so-called distinc­
tion between “ de jure” or “ de facto”  segregation situations. 
In this regard, Judges Bell and Coleman in their dissent in 
Jefferson II, supra, observe at pages 413 and 418:

“The unfairness which inheres in the majority opinion 
stems from the new doctrine which the original panel 
fashioned under the concept of classifying segregation 
into two types: de jure segregation, called apartheid, for 
the seventeen southern and border states formerly having 
legal segregation; and de facto segregation for the other 
states of the nation. This distinction, which must be with­
out a difference and somewhat hollow to a deprived 
child wherever located, is used as a beginning. The origi­
nal opinion then goes on to require affirmative action on 
the part of the school authorities in the de jure systems 
to integrate the schools. The neighborhood school sys­
tems of the nation with their de facto segregation are 
excused. The Constitution does not reach them.



15

“ This reasoning is necessary to reach the end o f com­
pulsory integration in the so-called de jure states. It is 
the counterpart to overruling the settled construction of 
the Fourteenth Amendment, to be next discussed, that 
integration is not commanded. The restrictions in the 
Civil Rights Act of 1964 against requiring school racial 
balances by assigmnent and transportation are written 
out of the law with respect to the de jure states by using 
the de jure-de facto theory. Title IV , subsection 401(b), 
407(a), 42 U.S.C.A. subsection 2000c(b), 2000c-6. The 
overruling o f the constitutional limitation removes the 
other impediment to compulsory integration. The way 
is thus cleared for the new dimension. The only question 
left is when, and to what extent. The authority to H E W  
is carte blanche. W e should disavow the de jure-de facto 
doctrine as being itself violative o f the equal protection 
clause. It treats school systems differently. It treats chil­
dren differently. It is reverse apartheid. It poses the 
question whether legally compelled integration is to be 
substituted for legally compelled segregation. It is un­
thinkable that our Constitution does not contemplate a 
middle ground-no compulsion one way or the other.”  
(emphasis ours)

# * # # # #

“/  further believe that whatever the Fourteenth Amend­
ment requires of any State it requires of all States. If we 
are requiring something here in the enforcement o f Four­
teenth Amendment rights that should not be required of 
all fifty states then we have exceeded our authority and 
we have misapplied the Constitution. . .”  (emphasis ours)

Ju d g e  G e w in  in  Jefferson II, su p ra , o b se rv e s  at p a g e  398:



1 6

. . One o f the chief difficulties which I encounter with 
the opinion is that it concludes that the Constitution 
means one thing in 17 states o f the nation and something 
else in the remaining states. This is done by a rather in­
genious though illogical distinction between the terms 
de facto segregation and de jure segregation. While the 
opinion recognizes the evils common to both types, it 
relies heavily on background facts to justify the con­
clusion that the evil will be corrected in one area o f the 
nation and not in the other. In my view the Constitution 
cannot be bent and twisted in such a manner as to justify 
or support such an incongruous result.”

The application which some courts have given to the anti­
bussing philosophy expressed in Section 407(a), supra, ap­
pears to have been occasioned by the apparent rejection of 
the decision in Briggs v. Elliott, E.D.S.C. (1955) 132 F.Supp. 
776, where it was held at page 777:

“ . . . it is important that we point out exactly what the 
Supreme Court has decided and what it has not decided 
in this case. It has not decided that the federal courts 
are to take over or regulate the public schools of the 
states. It has not decided that the states must mix persons 
of different races in the schools or must require them to 
attend schools or must deprive them of the right of 
choosing the schools they attend. What it has decided, 
and all that it has decided, is that a state may not deny to 
any person on account of race the right to attend any 
school that it maintains. This, under the decision of the 
Supreme Court, the state may not do directly or indi­
rectly; but if the schools which it maintains are open to 
children of all races, no violation of the Constitution is 
involved even though the children of different races



17

voluntarily attend different schools, as they attend differ­
ent churches. Nothing in the Constitution or in the de­
cision o f the Supreme Court takes away from the people 
freedom to choose the schools they attend. The Consti­
tution, in other words, does not require integration. It 
merely forbids discrimination. It does not forbid such 
segregation as occurs as the result of voluntary action.
It merely forbids the use o f governmental power to en­
force segregation. The Fourteenth Amendment is a limi­
tation upon the exercise o f power by the state or state 
agencies, not a limitation upon the freedom of indi­
viduals.”  (emphasis ours)

Judge Gewin in Jefferson II, supra, in commenting on the 
apparent rejection o f the Briggs doctrine, supra, observed 
at page 409:

“ If the alleged Briggs dictum is so clearly erroneous 
and constitutionally unsound, it is difficult to believe that 
it would have been accepted for a period o f almost 
twelve years and quoted so many times. Even the major­
ity concedes that the court in Briggs was composed of 
distinguished jurists, Judges Parker, Dobie and Timmer­
man. If the majority is correct, it is entirely likely that 
never before have so many judges been misled, including 
judges o f this Court, for so long by such a clear, under­
standable direct, and concise holding as the language 
in Briggs which the opinion now condemns. The lan­
guage is straightforward and simple: ‘The Constitution, 
in other words, does not require integration. It merely 
forbids discrimination.’

It is interesting also to observe that the Supreme Court 
has never disturbed the Briggs language although it has



1 8

had numerous opportunities to do so. As a matter o f fact, 
it has come very close to approving it; if it has not ac­
tually done so . . .

The majority rule requiring compulsory integration is 
new and novel, and it has not been accepted by the Su­
preme Court or by the other circuits. . .” (emphasis 
ours)

In this regard, Judge Young, who was the trial judge in 
the Ellis case, supra, observed as follows:

. A  student who because of his color is scooped up 
within a gerrymandered zone to be transported to a dis­
tant school in the same zone and deprived o f the right 
o f attending a school a few  blocks from his home which 
is placed in another zone (where such zones are gerry­
mandered for racial balance alone) is ‘effectively ex­
cluded’ from a school because o f race or color which is 
contra to Alexander v. Holmes County Board o f Edu­
cation, supra.” (emphasis ours)

Judge Clark in his dissent in Singleton, supra, very simi­
larly observed:

“ The assignment o f specific racial quotas and the es­
tablishment o f minimum, acceptable, percentage, racial 
guidelines for students, most assuredly cannot be the 
terms o f definition, for when a child o f any race wishes 
to attend a school because o f its location close to home, 
because o f the deemed excellence o f its faculty or facili­
ties, because it is attended by brothers or sisters or close 
friends or because it is on Dad’s way to work or in 
Mother’s car pool, and his wishes accord with valid edu-



19

cational policy, yet that child winds up being excluded 
from that school solely because the color of his or her 
skin doesn’t conform to a predetermined arbitrary racial 
quota or percentage guideline, that child’s right to be 
free of racial distinctions is gone. By the very wording 
of the phrase to be defined, a school system can't be 
‘unitary’ if a child is effectively excluded from any school 
because of his or her race or color. It’s easy to see what 
it isn’t, the challenge is to show what it is.” (emphasis 
ours)

(See also Holland v. Board of Public Instruction of Palm 
Beach County, U.S.C.A., 5 Cir. (1958) 258 F.2d. 730; Bell 
v. School City of Gary, Indiana, [7.S.C.A., 7 Cir. (1963) 
324 F.2d. 209; cert, denied, 377 US 924, 84 S.Ct. 1223, 12 
L.Ed.2d. 216; Downs v. Board of Education of Kansas City, 
U.S.C.A. 10 Cir., (1964) 336 F.2d. 988, cert, denied, 380 
US 914, 85 S.Ct. 898, 13 L.Ed. 2d. 800).

Amicus respectfully suggests that busing as contemplated 
by the District Court’s order would be contrary to the prin­
ciples set forth in Alexander v. Holmes County, (1969) 396 
US 19, 24 L.Ed.2d. 19. As we understand it, the order o f the 
District Court requires that the school children administered 
by the plan which the court has approved are to be bused 
on the basis o f race so as to achieve proportionate racial 
representation in the schools; and, because o f their race, cer­
tain children would be excluded from the school within the 
neighborhood o f their choice and bused to another solely on 
the basis o f race. This inherently violates the due process 
and equal protection clause o f the Fourteenth Amendment 
to the United States Constitution. In Cassell v. Texas, (1950) 
339 U.S. 282, 287; 94 L.Ed. 840, 847, this Court said:



20

“• • • Proportional racial limitation is therefore for­
bidden. An accused is entitled to have charges against 
him considered by a jury in the selection of which there 
has been neither inclusion nor exclusion because of 
race. . .”

At 339 U.S. 291, 94 L.Ed. 849, a concurring opinion speak­
ing through Mr. Justice Frankfurter stated:

. . But discrimination in this context means purpose­
ful, systematic, non-inclusion because of color. . . It does 
not mean absence of proportional representation. . .”

The principle o f Cassell has been re-announced in recent 
times in Swain v. Alabama, (1965) 380 U.S. 202, 208; 13 
L.Ed.2d. 759, 766, wherein the following statement appears:

“ Similarly, since there can be no exclusion o f Negroes 
as a race because o f color, proportional limitation is not 
permissible. (Cassell v. Texas, 339 U.S. 292; 94 L.Ed. 
839) . .

This court has given the Cassell principle some recognition 
in the cases o f U. S. v. Wiman, U.S.C.A., 5 Cir. (1962) 304 
F.2d. 53 and Goins v. Allgood, U.S.C.A., 5 Cir. (1968) 391 
F.2d. 692, wherein it is said that proportionate representation 
is not required.

Each of the foregoing cases is concerned with jury selec­
tion. However, there is no difference between the constitu­
tional prohibitions against discrimination in the assignment 
of jurors and the assignment of students. Proportionate repre­
sentation is prohibited because it requires that the state 
exclude on the basis of race those who exceed the portion



21

allotted to their race. The law must be color-blind. If the law 
requires that the race o f the administered be known in order 
to enforce the law, then clearly race is made a controlling 
characteristic or issue. The plan approved by the lower court 
can only be effectuated if the race o f the child is disclosed. 
It is a plan clearly racial in characteristic and as such is un­
constitutional per se. The plan requires that a child, on the 
basis o f race, graduate in a high school other than that which 
he has attended for perhaps three and a half years. It requires 
that he be bused out o f his neighborhood. If the child falsi­
fies his race and leaves all other factors the same he achieves 
the desirable circumstance o f stability. Change can be legiti­
mately imposed on him but not on the basis o f race. A  law 
which clearly discriminates on the basis o f race cannot gain 
a constitutional exception because it is thought to promote 
a desirable social amelioration.

The Court should also consider that the Fourteenth 
Amendment concludes with the provision:

“ Section 5. The Congress shall have power to enforce
by appropriate legislation, the provisions o f this article.”

Congress has exercised the power specifically given by 
passing legislation which prohibits busing. It is respectfully 
suggested that such legislation prohibits the racial discrimina­
tion characteristic o f the plan in question. The Court should 
not give any construction o f the Congressional enactment 
which would pervert any intent which may be clearly shown 
by the Congressional record or by the language o f the act. 
Certainly the court should not say to its fountain head o f 
jurisdictional power that it has not prohibited forced busing 
on the basis o f race if only a distortion o f the clear intent 
would permit such conclusion. T o  do so would require of



?2

Congress that it limit the Court’s power to review certain 
Congressional enactments by a provision in the A ct so stating, 
because such provision would be the only method whereby 
Congress could effectively exercise the power specifically 
given by Amendment X IV , Section 5, o f the Federal Con­
stitution.

Congressional power to enforce the Fourteenth Amend­
ment is not exclusive. However, in light o f the specific pro­
visions o f Section 5, it must be controlling.

If the Fourteenth Amendment o f the Federal Constitution 
permitted, without requiring, proportionate representation on 
the basis o f race, the decision o f a United States District 
Court requiring proportionate representation would have to 
be reversed as imposing what was not required. A  fortiori the 
order o f a U. S. District Court must be reversed for imposing 
proportional racial representation when such is actually 
prohibited by the Fourteenth Amendment. As the Honor­
able Thurgood Marshall stated in his Brief in Brown v. Board 
of Education, (1955) 349 U.S. 294, 99 L.Ed. 1083, 1089:

“The Fourteenth Amendment requires that a decree be 
entered directing that appellants be admitted forthwith 
to public schools without distinction as to race or color.”

Amicus asks but the same.

Amicus would be remiss in his responsibility to this Court 
if some comment were not made regarding the arguments 
o f the parties in this proceeding. The Brief filed by 
the Charlotte-Mecklenburg Board o f Education (Cross- 
Petitioner) sets forth with great particularity and specificity 
their opposition to compulsory busing and racial balancing. 
At page 29 o f their Brief, the Cross-Petitioner states, in part,



23

that, We do not think that the Constitution requires this 
racial balancing nor the busing necessary to implement it
. . The Brief filed by James Swann, et al, (Petitioners) 

urges acceptance of the concept of a racially balanced school 
system and busing to achieve such balance; such concept, it 
is argued, as being the constitutional imperative which the 
school boards have been mandated by the courts to follow. 
Petitioner submits that these “techniques” are required to 
“eliminate segregation” and “integrate the school system.”

Amicus respectfully submits that there is indeed a distinc­
tion between school systems which are “segregated” and 
school systems which vary in the degree of mathematical 
“integration.” Amicus suggests that there is a vast difference 
between the elimination of school segregation as commanded 
by the Court in the Brown cases, and directing a more 
racially balanced system as ordered by the District Court. 
Amicus respectfully submits that the inability of the Courts 
to make this distinction has contributed to the judicial con­
fusion. It has been commonplace and perhaps an oversimplifi­
cation to interchange these two concepts. In many instances, 
the courts were, in reality, dealing with school systems which 
were not “segregated,” but rather which did not have a suffi­
cient degree of “ integration” to “satisfy” the courts’ concept 
of a unitary system.

The principle that this Court clearly enunciated in Alexan­
der vs. Holmes County Board of Education, supra, was the 
necessity and requirement of school boards to establish a 
unitary system within which no person is to be effectively 
excluded from any schools because of race or color.'1'’

In Allen vs. Board of Public Instruction of Broward County, 
slip Opinion Number 30032, August 18, 1970, the Fifth Cir­
cuit observed, in part, as follows:



24

“ The Supreme Court has commanded courts and school 
boards to eliminate school segregation ‘root and branch,’ 
Green, supra, 391 U.S. at 438, and to do it note. See 
Green, supra; Alexander v. Holmes County Board of 
Education, 1969, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed. 2d 
19; Carter v. West Feliciana Parish School Board, 1970, 
396 U.S. 290, 90 S.Ct. 608, 24 L.Ed. 2d 477. W e must 
be responsive to this constitutional mandate.”  (emphasis 
ours)

Indeed, the courts must be responsive to this mandate— 
but what is this mystical mandate? Is it to command the 
establishment of a racially balanced school system? Must the 
courts forever be saddled with a perennial abacus, reviewing 
plans every term and every time the population shifts adjust­
ing them mathematically? This certainly could not be the 
intent of Alexander; providing equal educational opportuni­
ties should be the goal.

The Petitioner attempts to distort this, as well as the signifi­
cance of the opinion of the Fourth Circuit, in suggesting a 
“new” legal principle has been established below, to-wit: 
“that in each case a court must decide whether the goal of 
complete desegregation of all schools is a reasonable goal 
. . . whether the Court thinks desegregation is worthwhile, 
giving the circumstances of the district . . .” (page 24, 
Petitioner’s Brief). This interpretation is completely incon­
sistent with the meaning and significance of the opinion of 
the Fourth Circuit. The question is not whether desegrega­
tion is worthwhile—this issue was resolved in 1954 by this 
Court and is no longer a matter to be resurrected. Nor is it 
fair to this Court to infer that the Fourth Circuit’s decision 
is one that is in opposition to desegregation. This suggestion 
is nothing more than a smoke screen designed to obscure the 
real issues and divert attention from the resolution of these



25

issues. Nowhere in the majority opinion of the Fourth Cir­
cuit is there any intent to question the reasonableness of the 
goal of desegregation and this Court should pierce this 
illusory inference. The Fourth Circuit, in adopting what it 
referred to as “ the test of reasonableness, instead of one that 
calls for absolutes” observed, in part:

“ . . . if a school board makes every reasonable effort 
to integrate the pupils under its control, an interactable 
remnant o f segregation, we believe, should not void an 
otherwise exemplary plan for the creation of a unitary 
school system. Ellis vs. Board of Public Instruction of 
Orange County, Number 29124, February 17, 1970—  
F.2d.— Fifth Circuit.”  (emphasis ours)

With regard to the question of busing, the Fourth Circuit 
went on to observe:

“Bussing is a permissible tool for achieving integration, 
but is not a panacea. In determining who should be 
bussed and where they should be bussed, a school board 
should take into consideration the age of the pupils, the 
distance and time required for transportation, the effect 
on traffic, and the cost in relation to the board’s resources. 
The board should view bussing for integration in the 
light that it views bussing for other legitimate improve­
ments, such as school consolidation and the location of new 
schools. In short, the board should draw on its experience 
with bussing in general—the benefits and the defects—so 
that it may intelligently plan the part that bussing will 
play in a unitary school system

# # * # # #

“. . . The board, we believe, should not be required to 
undertake such extensive additional busing to discharge 
its obligation to create a unitary school system.”



2 6

The Petitioner expresses great concern about applying a 
“ rule o f reason,”  seemingly suggesting that this rule has some 
sinister connotation. The Petitioner submits that applying the 
test o f reasonableness “ must leave every board or court which 
seeks to apply the formula, essentially at sea.”  (page 39, Pe­
titioner’s Brief) Yet, while suggesting the vagueness o f using 
a standard o f reasonableness in approving the efforts o f the 
school board in the adoption o f a school plan, Petitioner un­
hesitatingly suggests that there is a “ reasonable basis for the 
District Court’s decision;” that the Fourth Circuit Court’s order 
was not governed by traditional rules o f appellate review be­
cause in order to set aside the equity decree, the appellant 
“ must demonstrate that there was no reasonable basis for the 
District Court’s decision.” H ow  does one determine or demon­
strate the existence or non-existence o f a “ reasonable basis” 
for a District Court’s decision, if the phrase or term “ reason­
able” is as vague as Petitioner suggests? W h y  is the test of 
reasonableness adopted by the Fourth Circuit, any the less 
vague than the test used by an appellate court or an appellant 
to sustain or set aside a lower court’s decision.

The “ rule o f reason” which is the foundation for all juris­
prudence is now  alleged to be fraught with danger. Amicus 
would respectfully suggest that a determination o f what is 
“ reasonable” is perhaps far easier (and a much more equitable 
standard) than determining what is meant by  a “ unitary 
system,”  which latter phrase the courts have spoken o f with 
such forcefulness and understanding— yet what does that 
phrase really mean?

In his Statement on Elementary and Secondary School 
Desegregation, made on March 24, 1970, President Nixon 
prophetically observed (even before the Fourth Circuit ruled):



27

. . There is a Constitutional mandate that dual school 
systems and other forms o f de jure segregation be elimi­
nated totally. But within the framework o f that require­
ment an area o f flexibility— a “rule of reason”— exists, in 
which school boards, acting in good faith, can formulate 
plans o f desegregation which best suit the needs o f their 
own localities.”  (emphasis ours) (Appendix hereto Exhibit 
A  1— 34, 12)

The issue is not whether the Fourth Circuit Court is cor­
rect in adopting a test based upon reasonableness; for no one 
can logically quarrel with any judicial determination founded 
upon a rule o f reason. The issues are those which Mr. Chief 
Justice Burger correctly observed in Northcross vs. Board 
of Education this past March:

. . whether, as a Constitutional matter, any particular 
racial balance must be achieved in the schools; to what 
extent the school districts or zones may or must be altered 
as a Constitutional matter; to what extent transportation 
may or must be provided to achieve the ends sought by 
prior holdings o f the Court. . (— U.S.— , 25 L.Ed.2d
246, 250)

T o these issues we must add: to what extent must school 
districts pair or cluster schools as a Constitutional matter, 
where such pairing is designed to achieve or maintain a racial 
balance. Pairing or clustering is a division o f grade levels 
among several comparable schools located within a relatively 
short distance o f each other. This is a device which many 
courts have utilized in improving the racial balance in school 
systems, in lieu o f redrawing o f zone lines. Although the 
question o f whether to redraw zone lines (if done without



2 8

regard to race) or whether to utilize pairing and clustering, 
should be left to the sound discretion o f the school boards, 
many courts have taken it upon themselves to direct pairing 
because the ratios o f black to white within a given school 
system would be improved or more equally balanced.

Pairing and clustering have been criticized as being incon­
sistent with sound educational principles. Recently, the Super­
intendent o f Schools o f Broward County, Florida, prepared 
a report discussing implementation o f the Fifth Circuit Court of 
Appeals order, entered on August 18, 1970. In this report, 
Dr. Benjamin C. Willis states in part:

“ The essential condition o f school pairing by grade levels 
will work in direct opposition to the reorganization o f our 
school program, which is already under way. All o f these 
plans have been formulated, seeking only to provide the 
best possible, and most appropriate education for each 
child, considering him only as an individual and not as a 
racial statistic. .

* * * * * *

“ The conclusion can be only that clustering/pairing, using 
only statistics, is educationally, logistically, economically 
unsound.” (C  48, 52)

This Court’s attention is also invited to this report, because 
it graphically demonstrates the frustrations in which educators 
and school systems have found themselves, as a result o f edu­
cationally unrealistic judicial directives. (Appendix hereto 
Exhibit C 37— 52)

Pairing and clustering have resulted in creating unneces­
sary safety hazards. Small children are now forced to walk



29

past a neighborhood school over heavily traveled and con­
gested thoroughfares such as U. S. highways in order to reach 
their “ paired”  school. Many children are not eligible for 
normal school bus transportation because they live within two 
miles o f their school (Florida Statutes 234.01). Fifth Circuit 
Court decisions reversals directing pairing and clustering have 
occurred a few days before school opening leaving school 
officials little time to adequately correct these hazardous con­
ditions.

It is true, as the courts have announced, that this Court has 
stated that “ 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 light of 
the circumstances present and the options available in each 
instance.” Green vs. County School Board of New Kent 
County, 1968, 391 U.S. 430, 439, 88 S.Ct. 1689 20 F.2d 716. 
Yet it would seem that if a school system adopts a geographic 
zone plan and draws its zone lines in such a manner to insure 
that no person is effectively excluded from any school because 
of race or color, then a unitary system would be established 
and the mandate o f this Court satisfied, notwithstanding that 
the particular method selected does not statistically provide 
as much o f a racial balance as would pairing, clustering or 
other devices. N o  device or technique is a guaranteed panacea. 
There are numerous instances o f hardship resulting from pre­
occupation with balance— classical examples are the parent 
whose seven children will now be attending six different grade 
schools, and the parent whose children have been transferred 
several times during the school year.

In attempting to summarize the prevailing trend of the 
judicial opinion, the President’s statement observes:



30

. . Where school boards have demonstrated a good- 
faith effort to comply with court rulings, the courts have 
generally allowed substantial latitude as to method—  
often making the explicit point that administrative 
choices should, wherever possible, be made by the local 
school authorities themselves.”  ( A l l )

The President’s statement also expresses his position on the 
neighborhood school concept and busing.

“ The neighborhood school would be deemed the most 
appropriate base for such a system.

Transportation o f pupils beyond normal geographic 
school zones for the purpose o f achieving racial balance will 
not be required.”  (A  23)

# # # # # #

“ I am dedicated to continued progress toward a truly 
desegregated public school system. But, considering the 
always heavy demands for more school operating funds,
I believe it is preferable, when we have to make the 
choice, to use limited financial resources for the improve­
ment o f education— for better teaching facilities, better 
methods, and advanced educational materials— and for 
the upgrading o f the disadvantaged areas in the com ­
munity rather than buying buses, tires and gasoline to 
transport young children miles away from their neigh­
borhood schools.”  (A  10)

O f particular significance is the President’s observation that:

“ Demands that an arbitrary ‘racial balance’ be established 
as a matter o f right misinterpret the law and misstate the 
priorities.



31

As a matter o f educational policy, some schools have 
chosen to arrange their school systems in such a way as 
to provide a greater measure o f racial integration. The 
important point to remember is that where the existing 
racial separation has not been caused by official action, 
this increased integration is and should remain a matter 
for local determination.”  (A  17)

CONCLUSION

The quandry in which many o f the courts find themselves 
is a result o f the absence o f ascertainable standards. As Judge 
Clark in Singleton, supra, “ The Court seeks to bring mighty 
things to pass, but just how is not explained . . .”  “ . . . The 
hard truth is that the courts have not fixed an adequate and 
a precise remedy. It is this court, not the school districts, that 
is to blame for any disparity between what the court now 
wants and what the districts actually are. . .”

Only a few  days ago, Judge Miller, a Circuit Judge sitting 
as a District Judge, by designation, in the Middle District of 
Tennessee, refused to implement a school plan, observing in 
part as follows:

“ . . . In the absence o f further and more specific guide­
lines from the Supreme Court, no lower federal court is 
in a position to make a definitive ruling on these impor­
tant issues . . . therefore, the Court is o f the opinion 
that the implementation o f such a plan, by order o f this 
Court, might result in harm to those whose interests must 
be deemed paramount, the students . . (Kelley, et al.
v. Metropolitan County Board of Education of Nashville 
and Davidson County, Tenn., et al., U.S.D.C. Nashville 
Div., M.D., Aug. 25, 1970)



32

Therefore, the necessity for this Court to set forth specific 
guidelines cannot sufficiently be over-emphasized. Considera­
tion of race, whether it be for the purposes of segregation or 
integration, is unconstitutional and as objectionable as would 
the consideration of religion or national origin. The Con­
stitution must be color blind, not color conscious. The goal 
is not the level of integration to be achieved; instead, the 
goal is as Judge Bell pointed out in his dissent in Jefferson 
II, supra, “a fair chance to attain personal dignity through 
equal educational opportunity. . .”

President Nixon, in his school statement, supra, makes 
several pertinent observations which merit quotation:

“One of the mistakes of past policy has been to demand 
too much of our schools: They have been expected not 
only to educate but also to accomplish a social transfor­
mation. Children in many instances have not been served, 
but used—in what all too often has proved a tragically 
futile effort to achieve in the schools the kind of a multi­
racial society which the adult community has failed to 
achieve for itself.

If we are to be realists, we must recognize that in a free 
society there are limits to the amount of government 
coercion that can reasonably be used; that in achieving 
desegregation we must proceed with the least possible 
disruption of the education of the nation’s children; and 
that our children are highly sensitive to conflict, and 
highly vulnerable to lasting psychic injury.

Failing to recognize these factors, past policies have 
placed on the schools and the children too great a share



33

of the burden of eliminating racial disparities throughout 
our society. A major part of this task falls to the schools. 
But they cannot do it all or even most of it by themselves. 
Other institutions can share the burden of breaking 
down racial barriers, but only the schools can perform 
the task of education itself. If our schools fail to edu­
cate, then whatever they may achieve in integrating 
the races will turn out to be only a pyrhhic victory.”
(A  16— 17)

In his concluding comments in his dissent in Singleton, 
supra, Judge Clark summed up the position in which he 
felt the Court was now finding itself. Judge Clark observed:

“With the glare of this publicity turned on us, this court 
is no less than on trial itself—on trial to see if it can make 
justice the handmaiden of liberty, or whether we make 
her serve tyranny. There is more at stake here than the 
tremendously valuable rights that lie on the surface of 
this controversy. Much of the vitality of the rule of law 
hangs in the balance, for we here deal not only with a 
vast number of people but also with perhaps the most 
sensitive area to any citizen—the welfare of his children. 
Respect for courts and for their decrees is a sine qua non 
to the acceptance of law as an ingrained way of life. We 
should do all we can as judges to promote that re­
spect . . .”

This Court has the opportunity to resolve the issues which 
have caused wide-spread concern and confusion. The time 
has long passed for the formulation of realistic guidelines 
which are consistent with sound constitutional and educa­
tional imperatives. It is respectfully requested that this Court



34

reject the concept of balancing and busing and instead 
recognize the goal of equal educational opportunity through 
reasonable means.

Respectfully submitted,

s/ Claude R. Kirk

Claude R. Kirk, Jr. 
Governor of Florida 
The Capitol 
Tallahassee, Florida

Of Counsel:

s/ Gerald Mager 

Gerald Mager
General Counsel to the Governor 
Office of the Governor 
The Capitol
Tallahassee, Florida 32304



A P PE N D IX

Statement by the President on Elementary and Second­
ary School Desegregation 1A-34B

Consent to File 35B-36B

Statement by Superintendent o f Education o f Broward 
County 37C-52C





1 A

EM BARGOED FOR ALL W IR E  TRAN SM ISSION  
U N T IL  10:00 A.M., EST, M A RCH  24, 1970 

EM BARGOED FOR RELEASE U N T IL  11:00 A.M., EST

Office of the White House Press Secretary

THE WHITE HOUSE

STATEMENT BY THE PRESIDENT 
ON ELEMENTARY AND SECONDARY 

SCHOOL DESEGREGATION

My purpose in this statement is to set forth in detail this 
Administration’s policies on the subject of desegregation of 
America’s elementary and secondary schools.

Few public issues are so emotionally charged as that of 
school desegregation, few so wrapped in confusion and 
clouded with misunderstanding. None is more important to 
our national unity and progress.

This issue is not partisan. It is not sectional. It is an 
American issue, of direct and immediate concern to every 
citizen.

I hope that this statement will reduce the prevailing confu­
sion and will help place public discusion of the issue on a more 
rational and realistic level in all parts of the nation. It is time 
to strip away the hypocrisy, the prejudice and the ignorance 
that too long have characterized discussion of this issue.

My specific objectives in this statement are:



2 A

— T o reaffirm my personal belief that the 1954 decision of 
the Supreme Court in Brown v. Board of Education was 
right in both Constitutional and human terms.

— T o  assess our progress in the 16 years since Brown and to 
point the way to continuing progress.

— T o  clarify the present state o f the law, as developed by 
the courts and the Congress, and the Administration poli­
cies guided by it.

— T o  discuss some of the difficulties encountered by courts 
and communities as desegregation has accelerated in recent 
years, and to suggest approaches that can mitigate such 
problems as we complete the process o f compliance with 
Brown.

— T o place the question o f school desegregation in its 
larger context, as part o f America’s historic commitment to 
the achievement o f a free and open society.

Anxiety over this issue has been fed by many sources.

On the one hand, some have interpreted various Administra­
tion statements and actions as a backing away from the principle 
o f Brown— and have therefore feared that the painstaking work 
o f a decade and a half might be undermined. W e  are not 
backing away. The Constitutional mandate will be enforced.

On the other hand, several recent decisions by lower courts 
have raised widespread fears that the nation might face a mas­
sive disruption o f public education: that wholesale compulsory 
busing may be ordered and the neighborhood school virtually 
doomed. A  comprehensive review o f school desegregation cases



3A

indicates that these latter are untypical decisions, and that pre­
vailing trend of judicial opinion is by no means so extreme.

Certain changes are needed in the nation’s approach to school 
desegregation. It would be remarkable if sixteen years of hard, 
often tempestuous experience had not taught us something 
about how better to manage the task with a decent regard for 
the legitimate interests of all concerned—and especially the 
children. Drawing on this experience, I am confident the re­
maining problems can be overcome.

W HAT THE LAW REQUIRES

In order to determine what ought to be done, it is important 
first to be as clear as possible about what must be done.

We are dealing fundamentally with inalienable human rights, 
some of them constitutionally protected. The final arbiter of 
Constitutional questions is the United States Supreme Court.

The President’s Responsibility

There are a number of questions involved in the school con­
troversy on which the Supreme Court has not yet spoken 
definitively. Where it has spoken, its decrees are the law. Where 
it has not spoken, where Congress has not acted, and where 
differing lower courts have left the issue in doubt, my responsi­
bilities as Chief Executive make it necessary that I determine, 
on the basis of my best judgment, what must be done.

In reaching that determination, I have sought to ascertain the 
prevailing judicial view as developed in decisions by the Su­
preme Court and the various Circuit Courts of Appeals. In this



4 A

statement I list a number o f principles derived from the pre­
vailing judicial view. I accept those principles and shall be 
guided by them. The Departments and agencies o f the G ov­
ernment will adhere to them.

A  few recent cases in the lower courts have gone beyond 
those generally accepted principles. Unless affirmed by the Su­
preme Court, I will not consider them as precedents to guide 
Administration policy elsewhere.

What the Supreme Court Has Said

T o  determine the present state o f the law, we must first re­
mind ourselves o f the recent history o f Supreme Court rulings 
in this area.

This begins with the Brown case in 1954, when the Court 
laid down the principle that deliberate segregation of students 
by race in the public schools was unconstitutional. In that 
historic ruling, the court gave legal sanction to two fundamental 
truths— that separation by law establishes schools that are in-, 
herently unequal, and that a promise o f equality before the 
law cannot be squared with use o f the law to establish two 
classes of people, one black and one white.

The Court requested further argument, however, and pro­
pounded the following questions, among others:

“ Assuming it is decided that segregation in public schools
violates the Fourteenth Amendment

“ a. would a decree necessarily follow  providing that, 
within the limits set by normal geographic school dis­
tricting, Negro children should forthwith be admitted 
to schools o f their choice, or



5 A

“b. may this Court, in the exercise o f its equity powers, 
permit an effective gradual adjustment to be brought 
about from existing segregated systems to a system not 
based on color distinctions?”

In its second Brown decision the following year, the Court 
addressed itself to these questions o f manner and timing of 
compliance. Its ruling included these principles:

— Local school problems vary: school authorities have the 
primary responsibility for solving these problems; courts 
must consider whether these authorities are acting in good 
faith.

—The courts should be guided by principles o f equity, 
which traditionally are “ characterized by a practical flexi­
bility in shaping its remedies and by a facility for adjusting 
and reconciling public and private needs.”

—Compliance must be achieved “ with all deliberate speed,” 
including “ a prompt and reasonable start” toward achieve- 
ing full compliance “ at the earliest practicable date.”

In 1964, the Supreme Court spoke again: “ The time for mere 
‘deliberate speed’ has run out, and that phrase can no longer 
justify denying these . . . children their constitutional rights.”

At the same time, Congress also added to the impetus of de­
segregation by passing the Civil Rights A ct o f 1964, an Act 
that as a private citizen I endorsed and supported.

Although the Supreme Court in the Brown cases concerned 
itself primarily, if not exclusively, with pupil assignments, its 
decree applied also to teacher assignments and school facilities 
as a whole.



6 A

In 1968, the Supreme Court reiterated the principle enunciated 
in prior decisions, that teacher assignments are an important 
aspect o f the basic task o f achieving a public school system 
wholly freed from racial discrimination. During that same year, 
in another group o f Supreme Court decisions, a significant and 
new set o f principles also emerged.

—That a school board must establish “that its proposed 
plan promises meaningful and immediate progress toward 
disestablishing State-imposed segregation,” and that the 
plan must “have real prospects for dismantling the State- 
imposed dual system ‘at the earliest practicable date.’ ”

—That one test of whether a school board has met its 
“affirmative duty to take whatever steps might be necessary 
to convert to a unitary system in which racial discrimina­
tion would be eliminated root and branch” is the extent to 
which racial separation persists under its plan.

—That the argument that effective desegregation might 
cause white families to flee the neighborhood cannot be 
used to sustain devices designed to perpetuate segregation.

—That when geographic zoning is combined with “free 
transfers,” and the effect of the transfer privilege is to per­
petuate segregation despite the zoning, the plan is unac­
ceptable.

The most recent decisions by the Supreme Court have now 
rejected any further delay, adding to the Court’s mandate:

—“The obligation of every school district is to terminate 
dual systems at once and to operate now and hereafter only 
unitary schools.”



7 A

— That the obligation o f such districts is an affirmative one 
and not a passive one.

— That freedom of choice plans could no longer be con­
sidered as an appropriate substitute for the affirmative 
obligation imposed by  the Court unless they, in fact, dis­
charge that obligation immediately.

The Court has dealt only in very general terms with the 
question o f what constitutes a “ unitary”  system, referring to it 
it as one “ within which no person is to be effectively excluded 
from any school because o f race or color.”  It has not spoken 
definitely on whether or not, or the extent to which, “ desegre­
gation”  may mean “ integration.”

In an opinion earlier this month, Chief Justice Burger pointed 
out a number o f “ basic practical problems”  which the Court 
had not yet resolved, “ including whether, as a Constitutional 
matter, any particular racial balance must be achieved in the 
schools; to what extent school districts and zones may or must 
be altered as a Constitutional matter; to what extent transporta­
tion may or must be provided to achieve the ends sought by 
prior holdings o f this Court.”

One o f these areas o f legal uncertainty cited by Chief 
Justice Burger— school transportation— involves Congressional 
pronouncements.

In the 1964 Civil Rights Act, the Congress stated, “ . . . noth­
ing herein shall empower any official or court o f the United 
States to issue any order seeking to achieve a racial balance in 
any school by requiring the transportation o f 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



8 A

existing power o f the court to insure compliance with constitu­
tional standards.”

In the 1966 amendments to the Elementary and Secondary 
Education Act, the Congress further stated, . . nothing con­
tained in this A ct shall . . . require the assignment or trans­
portation o f students or teachers in order to overcome racial 
imbalance.”

I am advised that these provisions cannot constitutionally be' 
applied to de jure segregation. However, not all segregation as 
it exists today is de jure.

I have consistently expressed my opposition to any compul­
sory busing o f pupils beyond normal geographic school zones 
for the purpose o f achieving racial balance.

What the Lower Courts Have Said

In the absence o f definitive Supreme Court rulings, these and 
other “ basic practical problems”  have been left for case-by-case 
determination in the lower courts— and both real and apparent 
contradictions among some o f these lower court rulings have 
generated considerable public confusion about what the law 
really requires.

In an often-cited case in 1955 (Briggs v. Elliott), a District 
Court held that “  the Constitution . . . does not require inte­
gration. . . .  It merely forbids the use o f governmental power 
to enforce segregation.”

But in 1966 another court took issue with this doctrine, 
pointing out that it had been used as justifying “ techniques for 
perpetuating school segregation,”  and declaring that:



9 A

. . the only adequate redress for a previously overt 
system-wide policy o f segregation directed against Negroes 
as a collective entity is a system-wide policy o f integration.”

In 1969, the 4th Circuit Court o f Appeals declared:

“ The famous Briggs v. Elliott dictum— adhered to by this 
court for many years— that the Constitution forbids segre­
gation but does not require integration . . .  is now dead.”

Cases in two circuit courts have held that the continued 
existence o f some all-black schools in a formerly segregated 
district did not demonstrate unconstitutionality, with one not­
ing that there is “ no duty to balance the races in the school 
system in conformity with some mathematical formula.”

Another circuit court decision declared that even though a 
district’s geographic zones were based on objective, non-racial 
criteria, the fact that they failed to produce any signficant 
degree o f integration meant that they were unconstitutional.

T w o very recent Federal court decisions continue to illus­
trate the range o f opinion: a plan o f a southern school district 
has been upheld even though three schools would remain all­
black, but a northern school system has been ordered by another 
Federal court to integrate all o f its schools completely “ by the 
revising o f boundary lines for attendance purposes as well as 
busing so as to achieve maximum racial integration.”

This range o f differences demonstrates that lawyers and 
judges have honest disagreements about what the law requires. 
There have been some rulings that would divert such huge 
sums of money to non-educational purposes, and would create 
such severe dislocations o f public school systems, as to impair



1 0 A

the primary function o f providing a good education. In one, 
for example— probably the most extreme judicial decree so far—  
a California State court recently ordered the Los Angeles School 
Board to establish a virtually uniform racial balance throughout 
its 711 square mile district, with its 775,000 children in 561 
schools. Local leaders anticipate that this decree would impose 
an expenditure o f $40,000,000 over the next school year to 
lease 1,600 buses, to acquire site locations to house them, to 
hire drivers, and to defray operating costs. Subsequent costs 
would approximate $20,000,000 annually. Some recent rulings 
by federal district courts applicable to other school districts 
appear to be no less severe.

I am dedicated to continued progress toward a truly desegre- 
grated public school system. But, considering the always heavy 
demands for more school operating funds, I believe it is prefer­
able, when we have to make the choice, to use limited financial 
resources for the improvement o f education— for better teaching 
facilities, better methods, and advanced educational materials—  
and for the upgrading o f the disadvantaged areas in the com ­
munity rather than buying buses, tires and gasoline to transport 
young children miles away from their neighborhood schools.

What Most of the Courts Agree On

Despite the obvious confusion, a careful survey o f rulings 
both by the Supreme Court and by the Circuit Courts o f A p­
peals suggests that the basic judicial approach may be more 
reasonable than some have feared. Whatever a few  lower 
courts might have held to the contrary, the prevailing trend 
o f judicial opinion appears to be summed up in these principles:

— There is a fundamental distinction between so-called 
“de jure’'’ and ude facto”  segregation: de jure segregation



11A

arises by law or by the deliberate act o f school officials and 
is unconstitutional; de facto segregation results from resi­
dential housing patterns and does not violate the Constitu­
tion. (The clearest example o f de jure segregation is the 
dual school system as it existed in the South prior to the 
decision in Brown— two schools, one Negro and one White, 
comprised o f the same grades and serving the same geo­
graphical area. This is the system with which most o f the 
decisions, and the Supreme Court cases up until now, have 
been concerned.)

— W here school boards have demonstrated a good-faith 
effort to comply with court rulings, the courts have gener­
ally allowed substantial latitude as to method— often mak­
ing the explicit point that administrative choices should, 
wherever possible, be made by the local school authorities 
themselves.

— In devising particular plans, questions o f cost, capacity, 
and convenience for pupils and parents are relevant con­
siderations.

— Whatever the racial composition o f student bodies, 
faculties and staff must be assigned in a way that does not 
contribute to identifying a given school as “ Negro” or 
“ White.”

— In school districts that previously operated dual systems, 
affirmative steps toward integration are a key element in 
disestablishing the dual system. This positive integration, 
however, does not necessarily have to result in “ racial bal­
ance” throughout the system. W hen there is racial separa­
tion in housing, the Constitutional requirement has been 
held satisfied even though some schools remained all-black.



1 2 A

— While the dual school system is the most obvious example, 
de jure segregation is also found in more subtle forms. 
Where authorities have deliberately drawn attendance zones 
or chosen school locations for the express purpose o f creat­
ing and maintaining racially separate schools, de jure 
segregation is held to exist. In such a case the school board 
has a positive duty to remedy it. This is so even though the 
board ostensibly operates a unitary system.

— In determining whether school authorities are responsible 
for existing racial separation— and thus whether they are 
Constitutionally required to remedy it— the intent of their 
action in locating schools, drawing zones, etc., is a crucial 
factor.

— In the case o f genuine de facto segregation (i.e., where 
housing patterns produce substantially all-Negro or all- 
W hite schools, and where this racial separation has not 
been caused by deliberate official action) school authori­
ties are not Constitutionally required to take any positive 
steps to correct the imbalance.

T o  summarize: There is a Constitutional mandate that dual 
school systems and other forms o f de jure segregation be elimi­
nated totally. But within the framework o f that requirement an 
area o f flexibility— a Urule of reason” — exists, in which school 
boards, acting in good faith, can formulate plans o f desegregation 
which best suit the needs o f their own localities, (emphasis 
ours)

De Facto segregation, which exists in many areas both North 
and South, is undesirable but is not generally held to violate 
the Constitution. Thus, residential housing patterns may result 
in the continued existence o f some all-Negro schools even in 
a system which fully meets Constitutional standards. But in any 
event, local school officials may, if they so choose, take steps



1 3 A

beyond the Constitutional minimums to diminish racial separa­
tion.

SCHOOL DESEGREGATION TODAY
The Progress

Though it began slowly, the momentum o f school desegrega­
tion has become dramatic.

Thousands o f school districts throughout the South have 
met the requirements o f law.

In the past year alone, the number o f black children attend­
ing southern schools held to be in compliance has doubled, 
from less than 600,000 to nearly 1,200,000— representing 40 per 
cent o f the Negro student population.

In most cases, this has been peacefully achieved.

However, serious problems are being encountered both by 
communities and by courts— in part as a consequence o f this 
accelerating pace.

The Problems
In some communities, racially mixed schools have brought 

the community greater interracial harmony; in others they have 
heightened racial tension and exacerbated racial frictions. Inte­
gration is no longer seen automatically and necessarily as an 
unmixed blessing for the Negro, Puerto Rican or Mexican- 
American child. “ Racial balance”  has been discovered to be 
neither a static nor a finite condition; in many cases it has 
turned out to be only a way station on the road to resegrega­
tion. Whites have deserted the public schools, often for grossly 
inadequate private schools. They have left the now re-segregated 
public schools foundering for lack o f support. And when whites 
flee the central city in pursuit o f all- or predominantly-white



1 4 A

schools in the suburbs, it is not only the central city schools 
that become racially isolated, but the central city itself.

These are not theoretical problems, but actual problems. 
They exist not just in the realm o f law, but in the realm o f 
human attitudes and human behavior. They are part o f the real 
world, and we have to take account o f them.

The Complexities
Courts are confronted with problems o f equity, and adminis­

trators with problems o f policy. For example: T o  what extent 
does desegregation o f dual systems require positive steps to 
achieve integration? H ow  are the rights o f individual children 
and their parents to be guarded in the process of enforcement? 
W hat are the educational impacts o f the various means o f de­
segregation— and where they appear to conflict, how should 
the claims o f education be balanced against those o f integration? 
T o  what extent should desegregation plans attempt to anticipate 
the problem of resegregation?

These questions suggest the complexity o f the problems. These 
problems confront us in the North as well as the South, and in 
rural communities, suburbs and central cities.

The troubles in our schools have many sources. They stem 
in part from deeply rooted racial attitudes; in part from dif­
ferences in social, economic and behavioral patterns; in part 
from weaknesses and inequities in the educational system itself; 
in part from the fact that by making schools the primary focus 
o f efforts to remedy longstanding social ills, in some cases 
greater pressure has been brought to bear on the schools than 
they could withstand.

The Context
Progress toward school desegregation is part o f two larger 

processes, each equally essential:



1 5 A

— The improvement of educational opportunities for all of
America’s children.

— The lowering o f artificial racial barriers in all aspects of
American life.

Only if we keep each o f these considerations clearly in 
mind— and only if we recognize their separate natures— can we 
approach the question o f school desegregation realistically.

It may be helpful to step back for a moment, and to consider 
the problem of school desegregation in its larger context.

The school stands in a unique relationship to the community, 
to the family, and to the individual student. It is a focal point 
of community life. It has a powerful impact on the future of 
all who attend. It is a place not only of learning, but also of 
living— where a child’s friendships center, where he learns to 
measure himself against others, to share, to compete, to cooper­
ate— and it is the one institution above all others with which the 
parent shares his child.

Thus it is natural that whatever affects the schools stirs deep 
feelings among parents, and in the community at large.

Whatever threatens the schools, parents perceive— rightly— 
as a threat to their children.

Whatever makes the schools more distant from the family 
undermines one o f the important supports of learning.

Quite understandably, the prospect o f any abrupt change in 
the schools is seen as a threat.

As we look back over these sixteen years, we find that many 
changes that stirred fears when they first were ordered have 
turned out well. In many Southern communities, black and



1 6 A

white children now learn together— and both the schools and 
the communities are better where the essential changes have 
been accomplished in a peaceful way.

But we also have seen situations in which the changes have 
not worked well. These have tended to command the headlines, 
thus increasing the anxieties o f those still facing change.

Overburdening the Schools

One o f the mistakes o f past policy has been to demand too 
much o f our schools: They have been expected not only to 
educate, but also to accomplish a social transformation. Children 
in many instances have not been served, but used— in what all 
too often has proved a tragically futile effort to achieve in the 
schools the kind o f a multiracial society which the adult com ­
munity has failed to achieve for itself.

If we are to be realists, we must recognize that in a free 
society there are limits to the amount o f government coercion 
that can reasonably be used; that in achieving desegregation we 
must proceed with the least possible disruption o f the education 
o f the nation’s children; and that our children are highly 
sensitive to conflict, and highly vulnerable to lasting psychic 
injury.

Failing to recognize these factors, past policies have placed 
on the schools and the children too great a share o f the burden 
o f  eliminating racial disparities throughout our society. A  major 
part o f this task falls to the schools. But they cannot do it all 
or even most o f it by themselves. Other institutions can share 
the burden o f breaking down racial barriers, but only the 
schools can perform the task o f education itself. If our schools



1 7A

fail to educate, then whatever they may achieve in integrating 
the races will turn out to be only a pyrrhic victory.

With housing patterns what they are in many places in the 
nation, the sheer numbers o f pupils and the distances between 
schools make full and prompt school integration in every such 
community impractical— even if there were a sufficient desire 
on the part o f the community to achieve it. In Los Angeles, 78 
per cent o f all Negro pupils attend schools that are 95 per cent 
or more black. In Chicago the figure is 85 per cent— the same 
as in Mobile, Alabama. Many smaller cities have the same pat­
terns. Nationwide, 61 per cent o f all Negro students attend 
schools which are 95 per cent or more black.

Demands that an arbitrary “ racial balance” be established as 
a matter o f right misinterpret the law and misstate the priorities.

As a matter o f educational policy, some school boards have 
chosen to arrange their school systems in such a way as to pro­
vide a greater measure o f racial integration. The important point 
to bear in mind is that where the existing racial separation has 
not been caused by official action, this increased integration is 
and should remain a matter for local determination.

Pupil assignments involve problems which do not arise in the 
case of the assignment o f teachers. If school administrators were 
truly color blind and teacher assignments did not reflect the 
color o f the teacher’s skin, the law o f averages would eventually 
dictate an approximate racial balance o f teachers in each school 
within a system.

Not Just a Matter of Race

Available data on the educational effects o f integration are 
neither definitive nor comprehensive. But such data as we have



18A

suggest strongly that, under the appropriate conditions, racial 
integration in the classroom can be a significant factor in im­
proving the quality o f education for the disadvantaged. At the 
same time, the data lead us into several more o f the complexities 
that surround the desegregation issue.

For one thing, they serve as a reminder that, from an educa­
tional standpoint, to approach school questions solely in terms 
o f race is to go astray. The data tell us that in educational terms, 
the significant factor is not race but rather the educational 
environment in the home— and indeed, that the single most 
important educational factor in a school is the kind o f home 
environment its pupils come from. As a general rule, children 
from families whose home environment encourages learning—  
whatever their race— are higher achievers; those from homes 
offering little encouragement are lower achievers.

W hich effect the home environment has depends on such 
things as whether books and magazines are available, whether 
the family subscribes to a newspaper, the educational level of 
the parents, and their attitude toward the child’s education.

The data strongly suggest, also, that in order for the positive 
benefits o f integration to be achieved, the school must have a 
majority o f children from environments that encourage learn­
ing—-recognizing, again, that the key factor is not race but the 
kind o f home the child comes from. The greater concentration 
o f pupils whose homes encourage learning— of whatever race—  
the higher the achievement levels not only o f those pupils, 
but also o f others in the same school. Students learn from stu­
dents. The reverse is also true: the greater concentration of 
pupils from homes that discourage learning, the lower the 
achievement levels o f all.

W e should bear very carefully in mind, therefore, the distinc­
tion between educational difficulty as a result o f race, and edu­



1 9 A

cational difficulty as a result o f social or economic levels, o f 
family background, o f cultural patterns, or simply o f bad 
schools. Providing better education for the disadvantaged re­
quires a more sophisticated approach than mere racial mathe­
matics.

In this same connection, we should recognize that a smug 
paternalism has characterized the attitudes o f many white Ameri­
cans toward school questions. There has been an implicit as­
sumption that blacks or others o f minority races would be 
improved by association with whites. The notion that an all­
black or predominantly-black school is automatically inferior 
to one which is all or predominantly-white— even though not 
a product of a dual system— inescapably carries racist over­
tones. And, o f course, we know of hypocrisy; not a few o f those 
in the North most stridently demanding racial integration of 
public schools in the South at the same time send their children 
to private schools to avoid the assumed inferiority of mixed 
public schools.

It is unquestionably true that most black schools— though by 
no means all— are in fact inferior to most white schools. This 
is due in part to past neglect or shortchanging of the black 
schools; and in part to long-term patterns o f racial discrimina­
tion which caused a greater proportion of Negroes to be left 
behind educationally, left out culturally, and trapped in low 
paying jobs. It is not really because they serve black children 
that most o f these schools are inferior, but rather because they 
serve poor children who often lack the home environment that 
encourages learning.

Innovative Approaches

Most public discussion o f overcoming racial isolation centers 
on such concepts as compulsory “ busing” — taking children out



2 0 A

of the schools they would normally attend, and forcing them 
instead to attend others more distant, often in strange or even 
hostile neighborhoods. Massive “ busing” is seen by some as the 
only alternative to massive racial isolation.

However, a number o f new educational ideas are being de­
veloped, designed to provide the educational benefits o f in­
tegration without depriving the student o f his own neighbor­
hood school.

For example, rather than attempting dislocation o f whole 
schools, a portion o f a child’s educational activities may be 
shared with children from other schools. Some o f his educa­
tion is in a “ home-base”  school, but some outside it. This 
“ outside learning” is in settings that are defined neither as 
black nor white, and sometimes in settings that are not even in 
traditional school buildings. It may range all the way from 
intensive work in reading to training in technical skills, and to 
joint efforts such as drama and athletics.

By bringing the children together on “ neutral”  territory 
friction may be dispelled; by limiting it to part-time activities 
no one would be deprived o f his own neighborhood school; 
and the activities themselves provide the children with better 
education.

This sort o f innovative approach demonstrates that the al­
ternatives are not limited to perpetuating racial isolation on the 
one hand, and massively disrupting existing school patterns on 
the other. W ithout uprooting students, devices o f this kind 
can provide an additional educational experience within an in­
tegrated setting. The child gains both ways.



21A

Good Faith and The Courts

Where desegregation proceeds under the mandate o f law, 
the best results require that the plans be carefully adapted to 
local circumstances.

A  sense o f compassionate balance is indispensable. The con­
cept o f balance is no stranger to our Constitution. Even First 
Amendment freedoms are not absolute and unlimited; rather 
the scales o f that “ balance”  have been adjusted with minute 
care, case by case, and the process continues.

In my discussion o f the status o f school desegregation law, I 
indicated that the Supreme Court has left a substantial degree 
o f latitude within which specific desegregation plans can be 
designed. Many lower courts have left a comparable degree of 
latitude. This does not mean that the courts will tolerate or 
the Administration condone evasions or subterfuges; it does 
mean that if the essential element o f good faith is present, it 
should ordinarily be possible to achieve legal compliance with 
a minimum o f educational disruption, and through a plan de­
signed to be responsive to the community’s own local cir­
cumstances.

This matter o f good faith is critical.

Thus the far-sighted local leaders who have demonstrated 
good faith by smoothing the path o f compliance in their com ­
munities have helped lay the basis for judicial attitudes taking 
more fully into account the practical problems o f compliance.

H ow  the Supreme Court finally rules on the major issues it 
has not yet determined can have a crucial impact on the future 
o f public education in the United States.



2 2 A

Traditionally, the Court has refrained from deciding Con­
stitutional questions until it became necessary. This period of 
legal uncertainty has occasioned vigorous controversy over 
what the thrust o f the law should be.

As a nation, we should create a climate in which these ques­
tions, when they finally are decided by the Court, can be 
decided in a framework most conducive to reasonable and 
realistic interpretation.

W e should not provoke any court to push a Constitutional 
principle beyond its ultimate limit in order to compel com ­
pliance with the court’s essential, but more modest, mandate. 
The best way to avoid this is for the nation to demonstrate 
that it does intend to carry out the full spirit of the Constitu­
tional mandate.

POLICIES OF THIS ADMINISTRATION

It will be the purpose o f this Administration to carry out the 
law fully and fairly. And where problems exist that are beyond 
the mandate o f legal requirements, it will be our purpose to 
seek solutions that are both realistic and appropriate. I

I have instructed the Attorney General, the Secretary of 
Health, Education and Welfare, and other appropriate officials 
o f the Government to be guided by these basic principles and 
policies:

Principles of Enforcement

— Deliberate racial segregation o f pupils by official action 
is unlawful, wherever it exists. In the words o f the Supreme



2 3 A

Court, it must be eliminated “ root and branch” — and it 
must be eliminated at once.

— Segregation o f teachers must be eliminated. T o  this end, 
each school system in this nation, North and South, East 
and West, must move immediately, as the Supreme Court 
has ruled, toward a goal under which “ in each school the 
ratio o f W hite to Negro faculty members is substantially 
the same as it is throughout the system.”

— W ith respect to school facilities, school administrators 
throughout the nation, North and South, East and West, 
must move immediately, also in conformance with the 
Court’s ruling, to assure that schools within individual 
school districts do not discriminate with respect to the 
quality o f facilities or the quality o f education delivered 
to the children within the district.

— 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 Con­
stitutional limits.

— The neighborhood school will be deemed the most ap­
propriate base for such a system.

— Transportation o f pupils beyond normal geographic 
school zones for the purpose o f achieving racial balance 
will not be required.

— Federal advice and assistance will be made available on 
request, but Federal officials should not go beyond the 
requirements o f law in attempting to impose their own 
judgment on the local school district.



2 4 A

— School boards will be encouraged to be flexible and 
creative in formulating plans that are educationally sound 
and that result in effective desegregation.

— Racial imbalance in a school system may be partly de 
jure in origin, and partly de facto. In such a case, it is ap­
propriate to insist on remedy for the de jure portion, 
which is unlawful, without insisting on a remedy for the 
lawful de facto portion.

—De facto racial separation, resulting genuinely from 
housing patterns, exist in the South as well as the North; 
in neither area should this condition by itself be cause for 
Federal enforcement actions. De jure segregation brought 
about by deliberate schoolboard gerrymandering exists in 
the North as the South; in both areas this must be 
remedied. In all respects, the law should be applied equally, 
North and South, East and West.

This is one nation. W e  are one people. I feel strongly that 
as Americans we must be done, now and for all future time, 
with the divisive notion that these problems are sectional.

Policies for Progress

— In those communities facing desegregation orders, the 
leaders o f the communities will be encouraged to lead—  
not in defiance, but in smoothing the way o f compliance. 
One clear lesson o f experience is that local leadership is 
a fundamental factor in determining success or failure. 
W here leadership has been present, where it has been 
mobilized, where it has been effective, many districts have 
found that they could, after all, desegregate their schools 
successfully. W here local leadership has failed, the com-



25 A

munity has failed— and the schools and the children have 
borne the brunt o f that failure.

— W e shall launch a concerted, sustained and honest ef­
fort to assemble and evaluate the lessons o f experience: to 
determine what methods o f school desegregation have 
worked, in what situations, and why— and also what has 
not worked. The Cabinet-level working group I recently 
appointed will have as one o f its principal functions 
amassing just this sort o f information and helping make it 
available to the communities in need o f assistance.

— W e shall attempt to develop a far greater body o f re­
liable data than now exists on the effects o f various inte­
gration patterns on the learning process. Our effort must 
always be to preserve the educational benefit for the chil­
dren.

— W e shall explore ways o f sharing more broadly the 
burdens o f social transition that have been laid dispro­
portionately on the schools— ways, that is, o f shifting to 
other public institutions a greater share o f the task o f un­
doing the effects o f racial isolation.

— W e shall seek to develop and test a varied set o f ap­
proaches to the problems associated with ude facto”  seg­
regation, North as well as South.

— W e shall intensify our efforts to ensure that the gifted 
child— the potential leader— is not stifled intellectually 
merely because he is black or brown or lives in a slum.

—W hile raising the quality o f education in all schools, we 
shall concentrate especially on racially-impacted schools,



and particularly on equalizing those schools that are fur­
thest behind.

W ords often ring empty without deeds. In government, 
words can ring even emptier without dollars.

In order to give substance to these commitments, I shall ask 
Congress to divert $500 million from my previous budget re­
quests for other domestic programs for Fiscal 1971, to be put 
instead into programs for improving education in racially- 
impacted areas, North and South, and for assisting school dis­
tricts in meeting special problems incident to court-ordered 
desegregation. For Fiscal 1972, I have ordered that $1 billion 
be budgeted for the same purposes.

I am not content simply to see this money spent, and then 
to count the spending as the measure o f accomplishment. For 
much too long, national “ commitments”  have been measured 
by the number o f Federal dollars spent rather than by more 
valid measures such as the quality o f imagination displayed, 
the amount o f private energy enlisted or, even more to the 
point, the results achieved.

If this $1.5 billion accomplishes nothing, then the commit­
ment will mean nothing.

If it enables us to break significant new ground, then the 
commitment will mean everything.

This I deeply believe:

Communities desegregating their schools face special needs—  
for classrooms, facilities, teachers, teacher training— and the 
nation should help meet those needs.



2 7 A

The nation also has a vital and special stake in upgrading 
education where de facto segregation persists— and where 
extra efforts are needed if the schools are to do their job. These 
schools, too, need extra money for teachers and facilities.

Beyond this, we need to press forward with innovative new 
ways o f overcoming the effects o f racial isolation and o f making 
up for environmental deficiencies among the poor.

I have asked the Vice President’s Cabinet Committee on 
School Desegregation, together with the Secretary o f Health, 
Education and Welfare, to consult with experts in and out o f 
government and prepare a set o f recommended criteria for the 
allocation o f these funds.

I have specified that these criteria should give special weight 
to four categories o f need:

—The special needs o f desegregating (or recently deseg­
regated) districts for additional facilities, personnel and 
training required to get the new, unitary system success­
fully started.

— The special needs o f racially-impacted schools where de 
facto segregation persists— and where immediate infusions 
of money can make a real difference in terms o f educa­
tional effectiveness.

— The special needs o f those districts that have the fur­
thest to go to catch up educationally with the rest of the 
nation.

— The financing o f innovative techniques for providing 
educationally sound inter-racial experiences for children 
in racially isolated schools.



28A

This money— the $500 million next year, and $1 billion in 
Fiscal 1972— must come from other programs. Inevitably, it 
represents a further reordering o f priorities on the domestic 
scene. It represents a heightened priority for making school 
desegregation work, and for helping the victims o f racial isola­
tion learn.

Nothing is more vital to the future of our nation than the 
education of its children; and at the heart of equal opportunity 
is equal educational opportunity. These funds will be an invest­
ment in both the quality and the equality of that opportunity.

This money is meant to provide help now, where help is 
needed now.

As we look to the longer-term future, it is vital that we con­
centrate more effort on understanding the process of learning— 
and improving the process of teaching. The educational needs 
we face cannot be met simply with more books, more class­
rooms and more teachers—however urgently these are needed 
now in schools that face shortages. We need more effective 
methods of teaching, and especially of teaching those children 
who are hardest to reach and most lacking in a home environ­
ment that encourages learning.

In my message on education reform earlier this month, I 
proposed creation of a National Institute of Education to con­
duct and to sponsor basic and applied educational research— 
with special emphasis on compensatory education for the dis­
advantaged, on the Right to Read, on experimental schools and 
on the use of television for educational purposes. I

I repeat that proposal—and I ask that the Congress consider 
it a matter of high priority.



2 9 A

A FREE AND OPEN SOCIETY

The goal o f this Administration is a free and open society. 
In saying this, I use the words “ free” and “ open” quite pre­
cisely.

Freedom has two essential elements: the right to choose, and 
the ability to choose. The right to move out o f a mid-city 
slum, for example, means little without the means o f doing so. 
The right to apply for a good job means little without access 
to the skills that make it attainable. By the same token, those 
skills are o f little use if arbitrary policies exclude the person 
who has them because o f race or other distinction.

Similarly, an “ open” society is one o f open choices— and one 
in which the individual has the mobility to take advantage o f 
those choices.

In speaking o f “ desegregation”  or “ integration,” we often 
lose sight if what these mean within the context o f a free, open, 
pluralistic society. W e  cannot be free, and at the same time be 
required to fit our lives into prescribed places on a racial grid—  
whether segregated or integrated, and whether by some mathe­
matical formula or by automatic assignment. Neither can we be 
free, and at the same time be denied— because of race— the 
right to associate with our fellow-citizens on a basis of human 
equality.

An open society does not have to be homogeneous, or even 
fully integrated. There is room within it for many communi­
ties. Especially in a nation like America, it is natural that people 
with a common heritage retain special ties; it is natural and 
right that we have Italian or Irish or Negro or Norwegian 
neighborhoods; it is natural and right that members o f those



30A

communities feel a sense o f group identity and group pride. 
In terms o f an open society, what matters is mobility: the right 
and the ability o f each person to decide for himself where and 
how he wants to live, whether as part o f the ethnic enclave 
or as part o f the larger society— or, as many do, share the life 
o f both.

W e are richer for our cultural diversity; mobility is what 
allows us to enjoy it.

Economic, educational, social mobility— all these, too, are 
essential elements o f the open society. W hen we speak o f equal 
opportunity we mean just that: that each person should have 
an equal chance at the starting line, and an equal chance to go 
just as high and as far as his talents and energies will take him.

This Administration’s programs for helping the poor, for 
equal opportunity, for expanded opportunity, all have taken a 
significantly changed direction from those o f previous years—  
and those principles o f a free and open society are the keys to 
the new direction.

Instead o f making a man’s decisions for him, we aim to give 
him both the right and ability to choose for himself— and the 
mobility to move upward. Instead o f creating a permanent 
welfare class catered to by a permanent welfare bureaucracy, 
for example, my welfare reform proposal provides job train­
ing and a job requirement for all those able to work— and also 
a regular Family Assistance payment instead o f the demeaning 
welfare handout.

By pressing hard for the “ Philadelphia Plan,”  we have sought 
to crack the color bar in the construction unions— and thus to 
give black and other minority Americans both the right and



3 1 A

the ability to choose jobs in the construction trades, among the 
highest paid in the nation.

We have inaugurated new Minority Business Enterprise pro­
grams—not only to help minority members get started in busi­
ness themselves, but also, by developing more black and brown 
entrepreneurs, to demonstrate to young blacks, Mexican- 
Americans and others that they, too, can aspire to this same 
sort of upward economic mobility.

In our education programs, we have stressed the need for far 
greater diversity in offerings to match the diversity of in­
dividual needs—including more and better vocational and 
technical training, and a greater development of 2-year com­
munity colleges.

Such approaches have been based essentially on faith in the 
individual—knowing that he sometimes needs help, but be­
lieving that in the long run he usually knows what is best for 
himself. Through them also runs a belief that education is the 
key that opens the door to personal progress.

As we strive to make our schools places of equal educational 
opportunity, we should keep our eye fixed on this goal: To 
achieve a set of conditions in which neither the laws nor the 
institutions supported by law any longer draw an invidious 
distinction based on race; and going one step further, we must 
seek to repair the human damage wrought by past segregation. 
We must give the minority child, that equal place at the start­
ing line that his parents were denied—and the pride, the dignity, 
the self-respect, that are the birthright of a free American.

We can do no less and still be true to our conscience and 
our Constitution. I believe that most Americans today, whether 
North or South, accept this as their duty.



3 2 A

The issues involved in desegregating schools, reducing racial 
isolation and providing equal educational opportunity are not 
simple. Many o f the questions are profound, the factors com ­
plex, the legitimate considerations in conflict, and the answers 
elusive. Our continuing search, therefore, must be not for the 
perfect set o f  answers, but for the most nearly perfect and the 
most constructive.

I am aware that there are many sincere Americans who be­
lieve deeply in instant solutions and who will say that my 
approach does not go far enough fast enough. They feel that 
the only way to bring about social justice is to integrate all 
schools now, everywhere, no matter what the cost in the 
disruption o f education.

I am aware, too, that there are many equally sincere citi­
zens— North and South, black and white— who believe that 
racial separation is right, and wish the clock o f progress would 
stop or be turned back to 1953. They will be disappointed, too.

But the call for equal educational opportunity today is in 
the American tradition. From the outset o f the nation, one of 
the great struggles in America has been to transform the sys­
tem o f education into one that truly provided equal opportu­
nity for all. At first, the focus was on economic discrimination. 
The system o f “ fee schools” and “ pauper schools” persisted 
well into the 19th century.

Heated debates preceded the establishment o f universal free 
public education— and even in such States as N ew  York, New 
Jersey and Connecticut, the system is barely a century old.

Even today, inequities persist. Children in poor areas often 
are served by poor schools— and unlike the children o f the



3 3 A

wealthy, they cannot escape to private schools. But we have 
been narrowing the gap— providing more and better education 
in more o f the public schools, and making higher education 
more widely available through free tuition, scholarships and 
loans.

In other areas, too, there were long struggles to eliminate 
discrimination that had nothing to do with race. Property and 
even religious qualifications for voting persisted well into the 
19th century— and not until 1920 were women finally guar­
anteed the right to vote.

N ow  the focus is on race— and on the dismantling o f all 
racial bars to equality o f opportunity in the schools. As with 
the lowering o f economic barriers, the pull o f conscience and 
the pull o f national self-interest both are in the same direction. 
A  system that leaves any segment o f its people poorly educated 
serves the nation badly; a system that educates all o f its people 
well serves the nation well.

W e have overcome many problems in our 190 years as a 
nation. W e  can overcome this problem. W e  have managed to 
extend opportunity in other areas. W e  can extend it in this 
area. Just as other rights have been secured, so too can these 
rights be secured— and once again the nation will be better for 
having done so. I

I am confident that we can preserve and improve our schools, 
carry out the mandate o f our Constitution, and be true to our 
national conscience.

# # # # # #





35B

E r v i n , H o r a c k  & Mc C a r t h a
A T T O R N E Y S  A T  L A W

A T T O R N E Y S  B U I L D I N G  
8 0 6  E A S T  T R A D E  S T R E E T

C h a r l o t t e , N o r t h  C a r o l i n a  a r e a  c o d e  704
2 8 2 0  2  3 7 6 - 2 4 9 1

P A U L  R. E R V I N  
B E N J .  S. H O R A C K  
C. E U G E N E  M C C A R T H A  
J A M E S  M. T A L L E Y ,  J R .
W I L L I A M  E.  U N D E R W O O D .  J R .
H E N R Y  N .  P H A R R .  II 
W I L L I A M  S. L O W N D E S  
R A Y  S. F A R R I S  
D A V I D  P. U N D E R W O O D

August 17, 1970

The Honorable Clerk o f Supreme Court 
o f the United States 

Washington, D.C. 20543

Re: Swann et al v. Charlotte-Mecklenburg Board o f Educa­
tion et al, N o. 281, October Term 1970— Consent to Filing 
Brief Amicus Curiae.

Dear Sir:

Pursuant to Rule 42 to the Supreme Court Rules, the Charlotte- 
Mecklenburg Board o f Education consents to the Honorable 
Claude R. Kirk, Jr., Governor o f the State o f Florida, filing a 
brief Amicus Curiae in the above action now pending in the 
Supreme Court.

/k

Very sincerely yours, 

Benj. S. Horack



36B

IN T H E

SUPREME C O U R T  OF T H E  U N ITE D  STATES 

October Term, 1970 

N o. 281

JAMES E. SWANN, et al„
Petitioners

v.
C H A R LO TTE -M E C K LE N B U R G  BO ARD  
OF E D U C A T IO N , et al„

Respondents.

CONSENT

Pursuant to Rule 42 o f the Rules o f the Supreme Court, 
James E. Swann, et al., Petitioners, do hereby consent to the 
filing o f brief amicus curiae by the Honorable Claude R. Kirk, 
Jr., Governor o f the State o f Florida.

This 31st day o f August, 1970.

J L eV O N N E  CHAM BERS 
Chambers, Stein, Ferguson & Lanning 
216 W est Tenth Street 
Charlotte, North Carolina

Attorneys for Petitioners



37C

IMPLEMENTATION

OF

THE FIFTH CIRCUIT COURT OF APPEALS ORDER

N O . 30032

Benjamin C. Willis 
Superintendent o f Schools 

August 24, 1970

The School Board o f Broward County, Florida 
1320 Southwest Fourth Street 

Fort Lauderdale, Florida 33312

For dedicated service to education in Broward County 
and for performance above and beyond the call of defined 
duties, I gratefully acknowledge the assistance of the follow­
ing people in the formulation and compilation of this docu­
ment.

William C. Drainer
Associate Superintendent for Operational Services

Harry F. McComb
Associate Superintendent for Curriculum and Teaching

Hal P. Jackson
Associate Superintendent for Administration and Personnel

William T. McFatter
Associate Superintendent for Finance and Accounting



38C

James J. Gardener 
Director o f Special Projects

Albert H. Beckett
Assistant Associate Superintendent for Operational Services 

Warren C. Cox
Curriculum Assistant, Central Area

James F. Wrinkle 
Coordinator, Pupil Assignment

Daniel DeMauro 
Coordinator, Safety Department

Arthur S. Healey 
Supervisor, Language Arts

Daniel P. Lee
Supervisor, Inservice Education

For secretarial and production assistance, I am grateful to 
the following people:

Rebecca Kunze, Alberta A. Hoeber, Jane Back, Carol A. 
Drouet



3 9 C

TOPICAL OUTLINE

Commendation

Historical Background and Accomplishments 

Concerns o f Implementation 

Discriminatory Aspects and Conclusions 

Imposed Mediocrity 

Summary

The imposition o f a social decree can be as 
delicate as the dew, as omnipotent as the sun, 
and as accepted as both— it is the timing that 
that makes it bitter or sweet.



4 0 C

INTRODUCTION

On April 30, 1970, the School Board o f Broward County, 
Florida accepted from Judge Cabot the final order o f District 
Court for achieving a “ unitary school system” in Broward 
County. The Board appreciates the fact that Judge Cabot 
carefully considered its own plan for school integration which 
he measured against constitutional standards.

In his comprehensive review o f the matter, Judge Cabot 
supported the Board’s contention that the pairing o f schools 
is educationally unsound by specifically rejecting the recom­
mendations for pairing o f schools submitted by the Desegre­
gation Consulting Center with whom staff members o f the 
Broward School System had worked on orders o f the District 
Court itself.

In this current review o f the issue, the School Board of 
Broward County and its staff wishes to pay tribute to the 
careful procedures and judicious understanding o f Judge 
Cabot in formulating a decision which, while it was a diffi­
cult one to execute in a period o f three and one-half months, 
has been accomplished without a serious disruption o f the 
improving race relations in our community and without 
threatening a sound instructional program for the 120,000 
elementary and secondary school students in Broward County.

The School Board o f Broward County is dismayed at the 
untimely and seemingly arbitrary ruling o f the Fifth Circuit 
Court o f Appeals in N ew  Orleans which so abruptly dismisses 
the “ decidedly impressive”  efforts o f its staff members to effect, 
by the opening o f school on August 31, 1970, the order of 
Judge Cabot, which was accepted, developed, and implemented 
in good faith. It is to Judge Cabot’s credit and it is a measure



4 1 C

of his astute grasp o f the issues involved that he provided an 
adequate, if not ample, time period within which multitudi­
nous problems could be defined and solutions found.

HISTORICAL BACKGROUND 
AND ACCOMPLISHMENTS

Even prior to the decision handed down by Judge Cabot, 
the Broward School Board, its Superintendent and Staff had 
worked in good faith to meet the requirements for a unitary 
school system as it was then understood. The plans called 
for an educationally sound desegregation schedule that began 
in the early 1960’s, and was given impetus by the passage of 
a 108.6 million dollar bond issue in 1968. This bond issue 
provided facilities for an orderly change from a partially 
segregated system to a unitary system. All grades 6-12 were 
to be desegregated by a plan commensurate with sound edu­
cational research. Elementary schools were to remain as neigh­
borhood schools.

As judicial interpretations o f the 1954 decision changed, 
the school system worked with various agencies as necessary, 
always in good faith, to make the changes necessary to imple­
ment the ever new and changing guidelines that developed, 
seemingly on the whim of the hour. A t various times they 
worked with ^representatives o f the Department of Health, 
Education, and Welfare both at Washington and Atlanta as 
well as the Desegregation Consulting Center at the University 
of Miami.

The plans called for a desegregation schedule beginning in 
1968 for completion by 1973. All secondary schools were to 
have been desegregated, with elementary schools remaining 
as neighborhood schools.



42 C

The school system has always believed in the educational 
soundness of the neighborhood school concept especially at 
the elementary level, although agencies and courts seem con­
tinually to attack the plans predicated on this concept. This 
order effectively destroys the neighborhood school for certain 
groups of students.

On March, 16, 1970, Judge Cabot ordered the School Board 
o f Broward County to establish a unitary school system by 
April 9, 1970. Since that date, school boundaries have been 
altered to comply with the order, parents have been notified 
and 24,000 students have been reassigned.

A  new organizational pattern was implemented to change 
elementary schools from grades one through six to Kinder­
garten through five; junior high schools from grades seven 
through nine to middle schools with grades six through 
eight; and senior high schools from grades ten through 
twelve to nine through twelve. Additionally, two new high 
schools were organized for grades nine through twelve.

A  plan for teacher reassignment was devised by a group 
selected by the Superintendent and under this plan 1127 
teachers have been reassigned to new school centers. Princi­
pals cooperated with the Personnel Division in the selection 
o f those persons to be reassigned so they would best fit the 
educational needs o f the schools. For example, combinations 
were established so that teachers would not leave a flexible 
school but were reassigned to another flexible school. Teachers 
in self-contained type school centers were reassigned, insofar 
as possible, to other self-contained type centers.

Teachers with experience in individualized instructional 
programs were assigned to schools with similar programs



4 3 C

wherever possible. As a part o f this plan, an inservice training 
program was prepared and has been carried out. The program 
was begun with a county-wide television program conducted 
by the Superintendent and his staff. It was telecast into all 
schools. All members o f the profession were given the oppor­
tunity to phone in their questions so that each person would 
understand the impact o f the integration order on his par­
ticular situation.

Additionally, inservice programs in the form of workshops 
were held for teachers who were transferred from familiar 
programs into others with which they had no familiarity, 
e.g., a teacher with self-contained classroom experience trans­
ferred to an individualized program was given the oppor­
tunity to learn some o f the techniques to be expected o f him 
in 1970-71.

Human relations specialists have addressed education groups 
to prepare personnel for some o f the problems o f integration 
which they might encounter. There have been a total o f 515 
participants in a series o f inservice programs.

Other human relations workshops were conducted for 
principals, assistant administrators, and guidance personnel to 
prepare them for the special problems they will have to deal 
with in the desegregation process. For these workshops con­
sultants were obtained from other school systems in Florida 
which have experienced this change.

Special workshops were held during the week o f August 
10 to August 17 for teachers newly assigned to flexible school 
programs as a result o f plans for desegregation. The number 
of participants was 136.



4 4 C

Also there has been a program o f school intervisitation 
based on system o f faculty exchange which has allowed 
teachers with little experience in integrated school settings 
to see first hand the operation o f fully integrated schools.

In the current plan the percentage o f teachers to be relocated 
reflects directly the number o f students o f each race at the 
elementary, junior, and senior high school level. This is in 
compliance with Judge Cabot’s order for a unitary school 
system.

Special efforts to obtain the textbooks appropriate for the 
changed student body in newly integrated schools were made 
by the Textbook Department and the supervisory staff work­
ing with school building principals.

The Supervisor o f Instructional Materials has conducted an 
analysis o f school libraries to make sure that adequate and ap­
propriate materials were available for students in newly 
integrated schools.

Budgets for the current year, which are prepared for schools 
on a per pupil cost basis, have already been computed on the 
basis o f enrollments expected as a result o f implementing Judge 
Cabot’s order.

Principals have received these budgets, assigned the funds 
to supplies and materials categories appropriate to their instruc­
tional program for the new year, and have returned those 
budgets to the county for processing. A  tremendous amount 
o f supplies and materials have already been bought to support 
the instructional program anticipated in each school for the 
1970-71 school year.



4 5 C

Bus routes in Broward County which cover a total of 16,000 
miles per day have had to be substantially changed to accommo­
date new school boundaries resulting from Judge Cabot’s order. 
Additional miles o f travel required amount to an increase of 
5500 miles per day, one million miles per year, at a cost o f 
approximately $370,000. An additional 4,000 students will have 
to be transported; special authorization for transporting 159 
students has been given because o f hazardous conditions on new 
access routes.

The driver’s day has been increased from 7*4 hours to 8*4 
hours per day which places most o f the drivers into the over­
time pay category. Ten drivers have resigned because o f this 
increase in length o f working day and because o f problems 
inherent in the integration process— real and imagined. At this 
point, the System needs 40 additional drivers. These drivers 
have to go through a minimum training program of 40 hours 
which requires a minimum of two weeks until that driver is 
hired and assigned to a permanent route.

Buildings and programs originally designed to accommodate 
one age group o f students have been to a great extent rede­
signed to accommodate new groupings o f students. Furniture, 
equipment, library books and textbooks, materials and supplies 
have been shifted from school to school in order to accommo­
date these new grade groupings and ages o f students.

Broward County has a totally accredited school system in 
grades 1-12. This accreditation is based on adequate program 
and building design, adequate equipment and materials, and the 
training o f teachers. Implementation o f Judge Cabot’s order 
required that standards be kept in mind at all times in order 
not to jeopardize the accreditation o f the Broward County 
School System. Large student enrollments in the senior high



4 6 C

schools and the result o f double sessioning o f these schools has 
required the addition o f 30 school administrators to absorb 
the administrative load with this size program. This cost 
$360,000.

The tremendous number o f students shifted and the track­
ing problem involved in order to insure their records followed 
them, and followed them in a up-to-date condition, required 
that administrators, guidance personnel, and secretaries be 
employed for an additional 19 days; 53 people worked during 
the summer at an estimated cost o f $37,000.

A  primary concern o f school and community leaders alike, 
as they planned to implement District Court orders, was the 
health and safety o f the thousands o f children who would be 
required to travel greater distances or over new routes to get 
to school. Many special provisions have been made to guaran­
tee their welfare:

new streets and sidewalks have been built

many walk ways have been extended

new signal lights have been installed

adults have been hired as crossing guards

needed school zones and markings have been made

traffic control devices have been obtained

security officers have been assigned to some schools

Civic leaders and school personnel have worked diligently 
for the past four months to build healthy attitudes within the

\



4 7 C

school communities to be most severely affected by the new 
school attendance regulations. These efforts have been aimed 
at several specific goals:

allaying the fears of parents whose children will have to 
move from a familiar school to a new one

studying access routes to all schools to assure safety for 
children

building positive relationships between parents and new 
school faculty members

familiarizing students with the new schools they would be 
attending

Because Judge Cabot had wisely permitted a period of ad­
justment for implementing his decision, school and community 
leaders have been able successfully to overcome the initial, 
strong emotional reaction which followed the order in some 
communities. The importance of the factor of time cannot be 
over emphasized, for although buildings can be altered and 
furniture moved on schedule, the attitudes and feelings of 
people, especially on a matter so vital as the education of their 
children, need time to adjust.

CONCERNS OF IMPLEMENTATION

The Educational Problems

It is especially alarming to the School Board of Broward 
County, Florida, to contemplate that a judicial decision made 
in New Orleans might have the effect of subverting recent 
massive efforts of the whole school system to reorganize its



4 8 C

instructional program in a way to provide a continuous and 
effective learning experience for all students. Tremendous 
amounts of money, time, and effort have been invested in 
teacher training, materials development and experimentation 
with innovative uses of space and time within the school day.

These massive efforts have resulted in a break-through in 
education organization which promises to effect great strides 
in educational achievement countywide. Careful planning has 
guaranteed that no disruption of this progress will occur in 
the implementation of Judge Cabot’s decision; however, if 
school pairing is to be forced on our school communities to 
meet the demands of one definition of a unitary school system 
time and effort have been wasted and the promises to our 
children will remain unfulfilled.

The essential cindition of school pairing by grade levels will 
work in direct opposition to the reorganization of our school 
program which is already under way. All of these plans have 
been formulated seeking only to provide the best possible and 
most appropriate education for each child considering him only 
as an individual and not as a racial statistic. An essential part 
of a continuous individualized program is the gradual reduc­
tion of grade level barriers which can hinder student progress.

A court decision which requires segregation of students into 
fixed grade levels without concern for their individual needs 
is the result of an impaired vision which cannot discriminate the 
needs of an individual as an individual.

Clustering or pairing under all the court-ordered plans pre­
sented, causes a conflict in the educational continuum for the 
student, e.g., adjusting to a traditional program in one school, the 
student is then required to adjust to a flexible type program the 
next year.



4 9 C

The possible loss o f the kindergartens in the affected schools 
because o f grade assignments would be another educational loss.

Facility Problems

Relocating portable building to effect the changes.

Relocate the furniture to accomodate the size o f the students.

Renovation o f facility to accomodate the new age group 
housed in the facility, i.e., chalk boards, washrooms, and drinking 
fountains.

Relocate the instructional materials to correspond to the pro­
gram.

People Problevts

Reorientation program for the community, parents, teachers 
to gain reacceptance and renewed cooperation in implementing 
the plan.

Family adjustment to children in as many as three elementary 
schools with a variation in opening and closing times for each. 
The family readjusts to the loss o f the services o f the older 
children in supervising the younger ones in going to and from 
school, only to find that they must now belong to threee 
R T .A .’s.

Program variation between paired schools minimizes the ef­
fectiveness o f family involvement in assisting each other with 
school work.

Many teachers will require additional inservice training in 
order to utilize effectively the new instructional environment 
into what they have been reassigned. This disruptive effect on



50C

the teachers will carry over to their interaction with students.

Already successfully integrated situations are destroyed, and 
may never be rebuilt, and the new ones required take at last 
as long to build as the old ones did.

Safety Problems

The clustering has not considered the time, effort, and money 
expended by the various communities and agencies in providing 
sidewalks, traffic control, crossing guards, and the marking 
o f safety lanes required for the safe movement o f students to 
their presently assigned schools. In addition, nine student cross­
ings will have to be constructed over Interstate 1-95, and two 
crossings over the Sunshine State Parkway. Construction work 
on 1-95 presents additional problems.

Transportation Problems

Lack o f trained drivers and substitute drivers.

Bus routing is circuitous, causing riding times to be un­
necessarily long for the younger students.

N ew  transportation equipment cannot be obtained, thus ad­
justments must be made in timing routes and school opening and 
closing.

DISCRIMINATORY ASPECTS 
AND CONCLUSIONS

Discrimination

A  careful study o f the Court’s plans reveals it to be discrimina­
tory in several ways. In the first place, the schools being di­



51C

rected to pair are located within the central and more densely 
populated areas of the county. Residential areas near the ocean 
and in the growing western section of the county where a pre­
dominance of upper-middle class white families live remain 
relatively unaffected. It would be difficult not to interpret this 
most recent court order as discriminatory in favor of these 
more affluent areas of the county.

In addition, any court order directing a specific reorganiza­
tion of schools is discriminatory against a local community 
which has a unique history and characteristics of which a 
remote panel of judges can be only statistically aware. It is 
presumptuous to think that the judiciary can protect the 
rights of all communities before the law if it presumes to 
prescribe particular procedures for desegregation in the wide 
diversity of communities that constitute America. When judges 
assume the prerogatives of locally appointed school adminis­
trators, they misconstrue their proper role as impartial inter­
preters of the law.

In the present instance, the decision of the judges of the 
Fifth District Court of Appeals not only confuses the role of 
the judiciary and is, in effect, discriminatory against a segment 
of the community of Broward County—but even more alarm­
ingly it destroys the concept of the elementary school which 
is not a local institution, but a national one. Should the pairing 
problems which have been ordered in Broward County be 
equally required throughout the United States, it would have 
the effect of subjecting the public school system to the judiciary 
and thus destroying it as a free American institution.

Review

The administrative and educational problems have been 
enumerated in detail, but demand repetition here to provide



5 2 C

concise reviewing of the problems. Referring to any one of the 
clusters, they contain people, young people, one-sixth of whom 
are going to school for the first time this fall. They contain the 
teaching staffs which have been assigned for almost four months.

It is unthinkable; it is amazing, that anyone could interpret 
this as a situation that could be completely redirected as sud­
denly as the court demands. The more information one gets 
from those who are familiar with the schools, streets, high­
ways, and the people the more the impracticability of a head­
long rush into implementation becomes apparent. The imple­
mentation of decision on student and teacher reassignment is 
overwhelming. The preparation of the facility for different stu­
dents and the accumulating of instructional materials for the 
grades assigned presents an ardous logistics problem. All of these 
compounded with problems of transportation, safety, and com­
munity relation makes unreasonable the implementation of the 
order in the manner prescribed.

The additional financial burden of accomplishing these 
changes would put a strain on the already strained financial 
condition of the system. Implementation as required would 
demand the expenditures of resources which could otherwise 
be directed towards the implementation of a desegregation which 
the community, parents, students, and educators had planned 
in good faith, worked for in good faith, and were going to im­
plement in good faith.

The conclusion can be only that cluster/pairing using only 
statistics is educationally, logistically, and economically unsound.



CERTIFICATE OF SERVICE

This is to certify that copies o f Brief o f Amicus Curiae 
were served upon each o f the attorneys named below by 
depositing the same in the United States mail, postage pre­
paid on this 4 day o f September, 1970.

William J. Waggoner 
1100 Barringer Office Tow er 
426 North Tyron Street 
Charlotte, North Carolina

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

Julius Levonne Chambers 
216 W est Tenth Street 
Charlotte, North Carolina

Jack Greenberg 
10 Columbus Circle 
N ew  York, N ew  York

Conrad O. Pearson
203 y2 East Chapel Hill Street
Durham, North Carolina

Jerris Leonard 
Assistant Attorney General 
U. S. Department o f Justice 
Washington, D. C.

Honorable Erwin N . Griswold 
Solicitor General o f 

United States 
Department o f Justice 
Washington, D. C. 20530

Honorable Robert Morgan 
Attorney General 
State o f North Carolina 
Department o f Justice 
Raleigh, North Carolina

William C. Cramer, M.C.
2165 Rayburn Building 
Washington, D.C. 20515

Stephen J. Poliak 
Benjamin W . Boley 
Richard M. Sharp 
734 Fifteenth Street, N .W . 
Washington, D.C. 20036

/s / Gerald Mager

Of Counsel





f









Supreme (Heart of itjr ^Mattrii States
O c t o b e r  T e r m , 1970

In T he

No. 281

JA M E S E. S W A N N , E T AL.,

V.
Petitioners

C H A R L O T T E -M E C K L E N B U R G  B O A R D  O F 
E D U C A T IO N , E T  AL.,

Respondents

AMICI CURIAE BRIEF OF DAVID E. ALLGOOD, AN INFANT,
ETC., ET AL

CALVIN H. CHILDRESS 
M. T. BOHANNON, JR. 

Suite 402, Plaza One 
Norfolk, Virginia 23510

Counsel for amici curiae

P R I N T E D  B Y T E A G L E  & L I T T L E ,  I N C . ,  N O R F O L K ,  V A .





SU BJECT IN D E X

Page
INTEREST OF THE AMICI CURIAE........ .......................... 1

QUESTIONS ADDRESSED____________    1

ARGUMENT

I. The Factual Situation and the Courts’ Response.. 2
II. The Constitutional and Practical Objections to

Racial Balancing and Bussing_______________  4

A. A  Denial Of Equal Protection Of The Laws.. 4

B. There Is No Constitutional Mandate To
Racially Balance Or Bus.........................   6

C. Racial Balancing and Bussing Are Not
Reasonable ____________________________________ 6

III. Neighborhood Schools______________   7

IV. White Flight................................. ......................................10

V. The Civil Rights Act of 1964................................. _.12

CONCLUSION .....................................................................................13

T A B L E  O F  A U T H O R IT IE S

CASES:
Brewer et at. v. The School Board of the City of Norfolk,

et al. F. 2d (C.A. 4th Cir. June 22, 1970)...................... 7

Brewer et al. v. The School Board of the City of Norfolk, 
et al. 308 Fed. Supp. 1274,1303
(D.C., E.D. Va., 1969).......................................................... 9

Brown v. Board of Education
347 U.S. 483, 99 L. Ed. 1089 (1954)............................ .4 ,6

Green v. County School Board of New Kent County
391 U.S. 430 (1968)........................ ..................................... 10

STATUTES:

Civil Rights Act of 1964.............................................................. 12



!' ’



In T he

^npxzm z Olourl flf tljt jMmteb plates
O c t o b e r  T e r m , 1970

No. 281

JA M E S E. S W A N N , E T AL.,
Petitioners

v.

C H A R L O T T E -M E C K L E N B U R G  B O A R D  O F 
E D U C A T IO N , E T  AL.,

Respondents

AMICI CURIAE BRIEF OF DAVID E. ALLGOOD, AN INFANT,
ETC., ET AL

QUESTIONS ADDRESSED

1. Is Racial Balancing and Bussing Required or Permitted 
by the Constitution?

2. Can Race Be the Prime Consideration in School Assign­
ments?

THE INTEREST OF THE AMICI CURIAE

This brief is filed on behalf of David E. Allgood, 
an infant, his father, Lloyd C. Allgood, and others, here­
inafter referred to as Concerned Citizens of Norfolk, 
who are defendant-intervenors in the Norfolk, Virginia, 
school desegregation case Beckett, et al. v. The School

1



Board of the City of N orfolk, Virginia, et al., now  on 
appeal to the C ourt o f A ppeals fo r  the Fourth C ircuit. 
These defendant-intervenors are a class consisting o f 
N o r fo lk  school ch ildren  and their parents. M ost o f the 
ch ildren  w ere born after the 1954 Brown decision ; many 
o f  the ch ildren  are entering fo r  the first time a school 
system in a state that form erly  had legally  segregated 
schools. T h e  C oncerned C itizens o f N o r fo lk  are both 
black and white.
j • ' {• »•  ; .................  ’ V "  i '

T h e  order o f  the district court in the N o r fo lk  school 
case, accord in g  to the findings o f fact contained therein, 
arbitrarily busses N o r fo lk  children, m any liv in g  w ithin 
w alk ing distance o f a school w hich  can accom m odate 
them, to a distant school against their w ill m erely to 
p lace them with ch ildren  o f another race.

In  the present case, the ch ildren  o f Charlotte and 
M eck len bu rg  County, N orth  Carolina, are under court 
order w hich  affects them in the same w ay as the ch il­
dren o f N o r fo lk  are affected. T h e  decision in this case 
w ill determ ine the outcom e o f the N o r fo lk  case. T h is  
brie f is filed  w ith the consent o f the parties to assist 
the court in reaching a decision that w ill not deny 
equal protection  o f the law  to the C harlotte and M e c k ­
lenburg C ounty ch ildren  or  the N o r fo lk  ch ildren  and 
one that w ill not require these ch ildren  to attend a school 
under a plan not required by the Constitution.

ARGUMENT

I— THE FACTUAL SITUATION AND THE COURTS’ RESPONSE

T o  describe the racial com position  o f Charlotte 
and M eck len bu rg  C ounty is to describe the racial com ­
position o f N o r fo lk , V irg in ia ; Atlanta, G eorg ia ; W a sh ­
ington, D . C . ; and every other large city or m etrop oli­
tan area in the country w ith sign ificant num bers o f

2



both blacks and whites. Each has black sections, white 
sections, and transitional sections. Because the white 
sections initially are relatively large in area they are 
apt to be a considerable distance from the black areas. 
Historically, but particularly in the past ten to fifteen 
years, the black sections have grown, the transitional sec­
tions have turned black and the white sections have 
become transitional then black.

Even though these facts have been present in all of 
the city school cases, each District Court and each Court 
of Appeals has come up with a different set of rules for 
desegregating the schools. This has been justified by 
holdings that each case rests on its own facts. A  look 
at what has happened within the past six months shows 
this is not accurate. In the present case the District 
Court set racial balancing as the goal and ordered into 
effect the plan that came closest to achieving this. The 
District Court in the N orfolk School case has ordered 
racial balancing to the extent permitted by available 
transportation. The District Court in Richmond, V ir­
ginia, has ordered racial balancing for the 1971/72 
school year. The District Court in Roanoke, Virginia, 
has rejected all plans that use bussing solely to achieve 
racial mixing.

These widely different decisions have not been the 
result of different factual situations in these cities. They 
have been the result of different interpretations of the 
rulings of this court.

W e have not had the lower courts experimenting 
with different desegregation tools and different factual 
situations in an effort to eliminate dual school systems. 
W e have had the lower courts experimenting with the 
meaning of desegregation and the meaning of “ unitary 
school system.”  The need for definitions, for objective

3



standards, is critical. Disruption and litigation will con­
tinue and grow until such standards are established.

Most lower courts have taken the view that re­
gardless of any other factors a school system is not de- 
segregated if some of its schools contain all or almost all 
black pupils or some of its schools contain all or almost 
all white pupils. These courts have ordered bussing to 
eliminate schools of all black pupils and schools of all 
white pupils.

I f this court should decree that each school district 
must take all feasible steps to racially balance its pupils 
then we would have a fairly objective standard by which 
school systems could be judged. W e believe, however, 
that such a solution or standard necessarily involves in­
surmountable constitutional and practical objections.

II— THE CONSTITUTIONAL AND PRACTICAL OBJECTIONS 
TO RACIAL BALANCING AND BUSSING

[A] A DENIAL OF EQUAL PROTECTION OF THE LAWS.

The Court has ruled that in order for children to 
have equal protection of the laws, no government must 
effectively exclude any child from any school because 
of his race or color. Racial balancing, however, the 
goal set by the lower courts, does just this. Under any 
city racial balancing plan, many black and white chil­
dren who live within walking distance of a school which 
can accommodate them will be required to ride buses to 
distant schools solely because of their race. They will 
not be allowed to attend the school closest to their home 
solely because of their race. This effectively excludes 
many from their neighborhood schools solely because 
of their race. It is discrimination and, as such, a denial 
of equal protection of the laws. It is the very thing out­
lawed in Brown v. Board of Education, 347 U.S. 483, 99 
L.Ed. 1089, (1954).

4



The avowed purpose in the racial-balancing-bussing 
schemes is equal educational opportunity. It cannot be 
concluded that this will be the result unless as a matter 
of law (since there is no evidence on the subject) it is 
concluded that schools with all black pupils will be 
inferior to other schools regardless of any other factors 
which may be present.

Scores on learning, progress, or intelligence tests of 
black pupils attending all black schools are significantly 
lower than the national average. It is claimed that this 
proves the inferiority of schools with all black pupils 
and their lack of equal educational opportunity. This 
would not be true, however, unless each child taking 
these tests entered a school system with the same moti­
vations and the same level of learning as all other chil­
dren. This is not the case. Much can and should be 
done to raise the general educational level of the cul­
turally-deprived but this is not a Constitutional man­
date. Schools can and should have faculties chosen with­
out regard to their color. I f appropriate, such faculties 
may be trained to meet the special needs of pupils such 
as culturally-deprived children. Interscholastic activities, 
athletic, academic, and social, should be conducted in a 
nondiscriminatory manner. School zone lines should be 
drawn in a nondiscriminatory manner. These steps ef­
fectively desegregate schools regardless of the color of 
pupils, without depriving any of their constitutional 
rights. They will provide the equal educational oppor­
tunity required.

Exactly what an equal educational opportunity en­
tails should be given serious consideration by this court 
for this is involved in all questions now presented in the 
school cases. It does mean that each child must be given 
the same opportunity to learn. Attempts to do more 
than this (such as giving culturally-deprived children

S



the opportunity to acquire such motivation, learning, 
and other factors as will place them on the same foot­
ing as others except for basic intelligence) through racial 
balancing and bussing, do not equalize educational op­
portunity, but impinge upon rights of others. The ends 
sought do not justify or require these means.

[B] THERE IS NO  CONSTITUTIONAL MANDATE TO 
RACIALLY BALANCING OR BUS.

This court has held that the Constitution requires a 
unitary school system, one in which no child is effectively 
excluded from any school because of his color. This 
court has held that all vestiges of the dual school systems 
must be eliminated so that there are no longer black 
schools or white schools, but just schools. This court 
has approved desegregation plans ordered into effect by 
District Courts when such courts have found discrimina­
tion to exist. These previous holdings of this court do 
not constitute a mandate to racially balance schools or 
even to make reasonable attempts to do so. These hold­
ings do not require bussing solely to mix pupils. They 
have been so interpreted, however, which makes it im­
perative that these questions now be answered.

The Constitution is and must be color-blind. It 
is the only way that every person can receive the equal 
protection of the laws. Justice Marshall, then repre­
senting the N A A C P , in his brief and in oral argument 
before this court in Brown v. Board of Education, supra, 
so stated. This is the premise upon which the Brown 
decision rests.

[C] RACIAL BALANCING AND BUSSING ARE NOT 
REASONABLE.

Even though the term reasonable is one familiar 
to the law, its meaning varies so from person to person, 
lawyer to lawyer and court to court, it has no real sig­

6



nificance. In spite of this a few lower courts (notably 
those in the fourth circuit— at the direction of the fourth 
circuit) and certain sections of the U. S. Government 
have adopted a desegregation policy of reasonableness. 
In practice this means that a school district must do 
everything reasonable to racially balance its schools in­
cluding rezoning, bussing, pairing, grouping and relo­
cating schools. It is submitted that all bussing for racial 
reasons is unreasonable, that all rezoning for racial rea­
sons is unreasonable and that all other “ tools” when 
employed solely for racial reasons are unreasonable.

It has been pointed out quite correctly that all 
these “ tools” have been used in the past for valid educa­
tional reasons and also for maintaining segregated 
schools. This is said to justify their use to mix colors. 
Certainly use of such tools for valid educational pur­
poses is reasonable and it may result in mixing of pupils. 
Unless such use, however, is tied to valid educational 
purposes (other than mixing, if this be one) those 
affected will consider the use unreasonable and respond 
accordingly, as they have in the past. Reasonableness 
cannot be determined in a vacuum. It must be determined 
with regard to those affected and their response. It has 
been clearly shown by the Coleman Report and all other 
studies that the use of these tools solely to mix the races 
is not generally accepted and, where employed, the mid­
dle class (white) child does not long attend the school 
assigned. Unless this sad fact (of white or middle class 
flight) is ignored, reasonableness must rule out the use 
of such tools solely for mixing different colored pupils.

Ill— NEIGHBORHOOD SCHOOLS

In a concurring opinion in the N orfolk school case, 
Brewer, et al. v. The School Board of the City of N or­
folk, Virginia C.A. 4th Cir. (June 22, 1970), Judge 
Bryan stated:

7



“ . . . I express the belief that the expertise of the 
Board and the seasoned judgment of the District 
Court can formulate a design —  not impinging 
Brown— consisting of ungerrymandered neighbor­
hood schools supplemented by freedom of choice 
and other pertinent factors. . . .

“ Accordingly, on account of the peculiar lay­
out of residential Norfolk, I think the neighbor­
hood school plan there would be altogether valid 
if supplemented by the freedom of choice priv­
ilege and provision for transportation at the ex­
pense of school authorities, wherever transporta­
tion is needed to make the schools accessible to 
the neighborhood pupils or to those exercising 
their freedom of choice of other schools . .

This is the prayer of the Concerned Citizens of 
N orfolk and of concerned citizens everywhere. As we 
previously pointed out, the residential pattern in N or­
folk (with regard to race) is basically the same as in 
every other city or metropolitan area with significant 
numbers of both races. A  neighborhood plan such as 
this effectively excludes no one from any school be­
cause of his race. It eliminates black schools and white 
schools. As late as 1963 in the N orfolk school case, the 
N A A C P  was asking the court for just such a school 
plan. It appears that throughout the fifties and the early 
sixties this was the prayer of the N A A C P  in all school 
cases. I f  such a plan was constitutional during those 
years, it is constitutional now.

Opposition to neighborhood school plans is based 
upon the fact that such plans do not eliminate schools 
with only black pupils and schools with only white 
pupils. It is contended that the placement of schools, 
discriminatory housing and zoning laws, and other gov­

8



ernmental acts caused racially segregated housing pat­
terns which perpetuate school segregation under neigh­
borhood plans. It is further contended that when white 
children are not in an obvious majority status in a school 
(which will occur in any neighborhood plan) they will 
gradually desert the school.

W e do not believe such objections are constitution­
ally sound. Certainly there will be schools with only 
black pupils and schools with only white pupils. Any 
constitutional objection to these can be easily .eliminated, 
however, by the nonracial assignment of teachers and 
administrative personnel and by nondiscriminatory inter­
scholastic activities.

I f governmental action has caused racially segre­
gated housing patterns, ungerrymandered school zones 
do perpetuate dual school systems. In the present case 
the district court has found as a fact that segregated 
housing patterns were the result of governmental action. 
The similarity between the housing patterns in Charlotte, 
Mecklenburg County and those in northern cities was 
declared to be more apparent than real. Such a finding 
must be challenged for it ignores one of the cardinal pre­
cepts of the law, that of proximate cause. Experience 
throughout the entire country establishes without any 
doubt that most neighborhoods will be racially homo­
geneous regardless of governmental action. This fact 
effectively eliminates governmental action as the cause. 
In the N orfolk school case, Brewer v. The School Board 
of the City of N orfolk  308 Fed. Supp. 1274, 1303, 
(1969) this was recognized by the district court which 
found as a fact in similar circumstances that govern­
mental action did not play a significant part in the 
segregation of neighborhoods.

9



During the past few years all discrimination in 
laws relating to housing has been struck down. Laws 
and regulations have been put into effect which actually 
severely discourage private discrimination in the sale 
and rental of housing. The location of all new schools 
has been under the control of the courts for the past 
few years. As a result, any family wishing to move 
knows that it will not be limited by race in choosing a 
new location. Further, no one can point to any particu­
lar school and say that it would not be in its present loca­
tion if the school district were all one color. N everthe­
less, objections such as this to the neighborhood plan 
are met by a fairly administered majority to minority 
freedom of choice provision. Freedom of choice has 
been struck down by this Court only when there has 
been a finding that it was administered unfairly ( Green 
v. County School Board of N ew  Kent County, 391 U.S. 
430, [1968]). This suggests, and it is certainly true, 
that the success of any freedom of choice plan depends 
on it being administered fairly without discrimination, 
not upon it mixing any particular number of different 
colored bodies. There well may be only a few transfers 
in any freedom of choice plan. N ot surprisingly, most 
people wish their children to go to school with those 
who are from backgrounds similar to theirs. I f they 
have a constitutional right to go to school with those 
of another color, must they be forced  to exercise it?

IV— WHITE FLIGHT

Most important to any decision regarding the 
method of desegregation (or its meaning) is the fact 
that “ de jure integration” brought about by racial bal­
ancing and bussing, does not work. The refusal of white 
and middle-class families to send their children to schools 
where their race and class does not predominate is well 
documented. The most dramatic example is found in

10



the District of Columbia. In 1954 white pupil enroll­
ment was 39 per cent of the total (about 40,000 white 
pupils). Since then an ambitious program of integra­
tion (as opposed to desegregation) has been undertaken. 
Pupil achievement in the District, which was close to 
the United States norm in 1954, dropped to a point far 
below the United States norm in 1969. Although total 
student enrollment rose, the number of white pupils fell 
to 5.6 per cent of the total in 1969 or less than 8,500 
pupils out of a total of about 149,000. A  study of indi­
vidual schools in the District shows that when black 
pupil enrollment approached 30 per cent in a school, the 
percentage rose to 75 per cent in about four years and 
quickly thereafter the school had all black pupils. Over 
99 per cent of the District’s black pupils attend schools 
where they are in the great majority.

Atlanta, Georgia, did not start its school desegrega­
tion until 1960. Its experience has been the same as 
Washington’s. In 1960, about 60 per cent of total pupils 
enrolled were white. In 1970 this fell to 35 per cent. 
At the present rate of change, Atlanta schools will have 
about 90 per cent black pupils in seven to ten years. New 
York City has had a similar experience following its 
school board’s requirement of racial balance.

Other cities faced with the same school situation are 
experiencing the same change. I f the present “ de jure 
integration” policies continue, our large cities soon will 
become all black.

The net result of all this will be inevitably the 
destruction of confidence in public education and the 
erosion of the tax base upon which all school systems 
depend. W e have already seen the beginning of this 
in thousands of private schools that have sprung up 
and are flourishing. It is now the rule rather than the

11



exception for school bond issues to be defeated in refer­
enda throughout the country. This will be the end of 
meaningful education for most of this country’s blacks.

V— THE CIVIL RIGHTS ACT OF 1964

It was within the power of Congress, specifically 
granted by the 14th Amendment, to enforce the Constitu­
tional mandate to desegregate the schools. It would be 
most unreasonable if this power did not include the 
right to define terms and to set out procedures to be 
followed and to be avoided. This was done in the Civil 
Rights Act of 1964. Desegregation does not mean racial 
balancing and the Act so states. Bussing is neither rea­
sonable, required nor constitutional and the Act so states. 
This Act can and should be given effect as an exercise of 
Congress’s power to enforce the 14th Amendment.

12



CONCLUSION

The Constitutional mandate to desegregate schools, 
to abolish dual school systems and all vestiges of it is met 
when school districts are contiguous to the schools; when 
zone lines are drawn in a nondiscriminatory manner 
without regard to race; when faculties are assigned to 
schools without regard to race; when interscholastic 
activities, academic, athletic, and social, are conducted 
without regard to race; when, in those school districts 
that have Government-imposed segregated housing pat­
terns, there is a majority to minority transfer provision; 
and where deviations from the above are for valid educa­
tional reasons only. This plan will not mix enough d if­
ferent colored pupils to suit many but it is the only plan 
that meets the Constitutional test of equal educational 
opportunity and will not completely destroy the public 
educational system in this country. It is the only plan 
that will assure to all the equal protection of the law.

Respectfully submitted,

C A L V IN  H. C H IL D R E S S  
M. T. B O H A N N O N , JR. 

Suite 402, Plaza One 
Norfolk, Virginia 23510 

Counsel for amici curiae

13



■



f





IN THE

S u p r e m e  C o u r t  o f  t h e  U n it e d  S t a t e s
O C T O B E R  T E R M , 1970

No. 281

JAMES E. SWANN, et al., Petitioners, 

v.

CHARLOTTE-MECKLENBURG BOARD OF 
EDUCATION, et al.,

No. 349

CHARLOTTE-MECKLENBURG BOARD OF 
EDUCATION, et al., Petitioners,

v.

JAMES E. SWANN, et al.

O N  W R IT  O F  C E R T IO R A R I T O  TH E  U N IT E D  ST A T E S  C O U R T  
O F  A P P E A L S F O R  TH E  F O U R T H  C IR C U IT

AMICUS CURIAE BRIEF FOR THE CLASSROOM TEACHERS 
ASSOCIATION OF THE CHARLOTTE-MECKLENBURG 

SCHOOL SYSTEM, INCORPORATED

Sam J. Ervin, Jr.
515 Lenoir Street 
Morganton, North Carolina

Charles R. Jonas 
301 W. Main Street 
Lincolnton, N.C.

Ernest F. Hollings 
141 East Bay Street 
Charleston, South Carolina

Washington. D. C. T H IE L  PRESS • 202 - 393-0625





(i)

TABLE OF CONTENTS

Page

Interest of the Am icus..................................................................................  1

Opinions Below................................................................................................  2

Jurisdiction ....................................................................................................... 3

Questions Presented for Review................................................................  3

Constitutional and Statutory Provisions Involved...............................  4

Statement of the C a s e ..................................................................................  4

Summary of Argument ...............................................................................  14

Argument .........................................................................................................  17

I. The Charlotte-Mecklenburg Board of Education has 
complied with the Equal Protection Clause of the 
Fourteenth Amendment and the Supreme Court deci- 
cisions interpreting it by establishing and operating 
a unitary public school system, which receives and 
teaches students without discrimination on the basis 
of their race or color. Any racial imbalance remain­
ing in any of the schools under the jurisdiction of 
the Board represents de facto segregation, which inno­
cently results from the purely adventitious circum­
stance that the inhabitants o f particular areas in and 
adjacent to the City o f Charlotte are predominantly 
of one ra c e ...........................................................................................  17

II. The Equal Protection Clause of the Fourteenth 
Amendment does not require or empower a Federal 
Court to order a public school board to assign 
children to the schools it operates merely to balance 
the student bodies in such schools racially, or to 
bus children outside reasonable geographic attend­
ance districts or zones to effect such purpose. The 
District Court ordered the Charlotte-Mecklenburg 
School Board to do both of these things, and the 
Circuit Court erred insofar as it affirmed the District
Court order ...........................................................................................  22

III. The Fifth Section of the Fourteenth Amendment 
empowers Congress to enforce the Equal Protection 
Clause by appropriate legislation, the First Section



of Article III of the Constitution empowers Congress 
to regulate the jurisdiction of United States District 
Courts and United States Circuit Courts of Appeals, 
and the Second Section of Article III of the Consti­
tution empowers Congress to regulate the appellate 
jurisdiction of the Supreme Court. Congress exer­
cised all of these powers in an appropriate fashion 
when it enacted Title IV of the Civil Rights Act of 
1964, which prohibits the assignment of students to 
public schools to balance the student bodies in such 
schools racially, and to bus them from some schools 
to other schools, or from some school districts to 
other school districts to effect such purpose. The 
Act’s prohibition on busing is absolute and deprives 
federal courts of jurisdiction to compel school boards 
to bus students to overcome racial imbalances in 
schools, even if such imbalances result from discrimi­
natory school board action. The District Court order 
violated this Act by commanding the Charlotte- 
Mecklenburg School Board to do the things pro­
hibited by it, and the Circuit Court joined in such 
violation insofar as it affirmed the District Court 
Order..............................................................................................

IV. A  school board has the power to devise and imple­
ment any non-discriminatory plan for the assignment 
o f children to the public schools it operates. The 
District Court not only rejected a non-discriminatory 
assignment plan submitted by the Charlotte-Mecklen- 
burg School Board, but it usurped and exercised the 
authority of the School Board in this respect by 
devising a plan of its own which commands the 
School Board to deny thousands of children admis­
sion to their neighborhood schools, and to bus them 
to other schools to mix the races in the various 
schools in numbers or proportions satisfactory to 
the District Court. By so doing, the District Court 
ordered the School Board to deny to the thousands 
of children affected by its order admission to their 
neighborhood schools in violation of the Equal Pro­
tection Clause, and to bus them to other schools or



(Hi)

other school districts in violation of Section 407(a) 
(2) o f the Civil Rights Act of 1964. The Circuit 
Court concurred in these violations, and erred insofar 
as it affirmed the order of the District C o u rt..............

Conclusion 

Appendix .

TABLE OF AUTHORITIES

Page

36 

40  

A. 1

Cases:
Alexander v. Holmes County Board of Education, 396 U.S.

19 (1969) ................................................................................................ 19, 23

Alexander v. Holmes County Board of Education, 396 U S
1218 (1 9 6 9 ) .............................................................................................. 19>23

Avery v. Midland County, 390 U.S. 474 (1968) .............................  18

Barry v. Mercein, 5 How. (U.S.) 103, 119 (1847) ..........................  29

Bell v. City School of Gary, Indiana (7 CA-1963), 324 F.2d

Board of School Commissioners of Mobile County v. Davis,
11 L. ed. (U.S.) (2d) 26 (1 9 6 3 ) ............................................... ’_____  19

Bolling v. Sharpe, 347 U.S. 497 ( 1 9 5 4 ) ...............................................  18

Bradley v. School Board of City of Richmond, 383 U S
103 (1 9 6 5 ) .................................................................................................... 19

Brown v. Board o f Education of Topeka, 347 U.S. 483
(1954).................................................................................passim

Brown v. Board of Education of Topeka, 349 U S 294
0 9 5 5 ) ..........................................................................................................18, 24

Bush v. New Orleans Parish School Board, 364 U S 500
( I 9 6 0 ) ....................................................   1 8

Carter v. West Felicana Parish School Board, 396 U S 226
(1969) ....................................................................................................

Carter v. West Felicana Parish School Board, 396 U S 290
(1970) .........................................................................

Cary v. Curtis, 3 How. (U.S.) 236, 245 (1845)

19

29



Chisholm v. Georgia, 2 Dali. (U.S.) 419, 432 (1793) ..................... 29

Cooper v. Aaron, 358 U.S. 1, 20 (1 9 5 8 ) ............................................... 18

Cross v. Burke, 146 U.S. 82 , 86 ( 1 8 9 2 ) ............................................... 29

Cumming v. Richmond County Board of Education, 175
U.S. 528 ( 1 8 9 9 ) ........................................................................................ 18

Daniels v. Railroad Co., 3 Wall. (U.S.) 250, 254 ( 1 8 6 6 ) ............... 29

Dowell v. Board of Education of the Oklahoma City Public
Schools, 396 U.S. 269 ( 1 9 6 9 ) .............................................................  19

Downs v. Board of Education of Kansas City, Kansas (10
CA-1964), 336 F.2d 483 ( 1 9 5 4 ) .......................................................  25

Durousseau v. United States, 6 Cranch 307 (1810) .......................  29

Ex Parte Bollman, 4 Cranch (U.S.) 75, 93 ( 1 8 0 7 ) ..........................  29

Ex Parte McCardle, 6 Wall. (U.S.) 318 (1 8 6 8 ) ...................................  29

Gong Lum v. Rice, 275 U.S. 78 ( 1 9 2 7 ) ............................................... 18

Goss v. Board of Education of Knoxville, 373 U.S. 683
(1 9 6 3 ) ............................................................................................................  19

Green v. County School Board of New Kent County, 391
U.S. 430 ( 1 9 6 8 ) ...............................................................................  6 , 16, 19

Griffin v. County School Board of Prince Edward County,
377 U.S. 218 ( 1 9 6 4 ) ...............................................................................  19

Keyes v. School District No. 1, Denver, 396 U.S. 1215
(1 9 7 0 ) ............................................................................................................  19

Kline v. Burke Construction Co., 260 U.S. 226, 234 (1922) . . .  29

Kuntz v. Moffitt, 115 U.S. 487, 497 ( 1 8 8 5 ) ......................................  29

Lauf v. E. G. Skinner & Co., 303 U.S. 323, 330 ( 1 9 3 8 ) ............... 29

Lockerty v. Phillips, 319 U.S. 182 ( 1 9 4 3 ) .............................................  29

Maxwell v. Bugbee, 250 U.S. 525 ( 1 9 1 9 ) ..............................................  17

Missouri Pacific Railway Co. v. Mackey, 127 U.S. 205 -
(1 8 8 8 ) ............................................................................................................  18

Missouri v. Pacific Railway Co., 292 U.S. 13, 15 ( 1 9 3 4 ) ............... 29

Monroe v. Board o f Commissioners of the City of Jackson,
391 U.S. 450 (1968)

(iv)

Page

19



Northcross v. Board of Education of the Memphis City
Schools, 397 U.S. 232 (1 9 7 0 ) .......................................................... 19, 23

Plessy v. Ferguson, 163 U.S. 537 (1 8 9 6 ) ............................................... 18

Raney v. Board of Education of the Gould School District,
391 U.S. 443 ( 1 9 6 8 ) ............................................................................... 19

Rogers v. Paul, 382 U.S. 198 ( 1 9 6 5 ) ..................................................... 19

Sheldon v. Still, 8 How. (U.S. 441 ( 1 8 5 0 ) .........................................  29

Shuttlesworth v. Birmingham Board of Education, 358 U.S.
101 (1 9 5 8 ) ...................................................................................................  18

State Board of Tax Commissioners v. Jackson, 283 U.S.
527 (1 9 3 1 ) ...................................................................................................  17

Stephan v. United States, 319 U.S. 423, 426 ( 1 9 4 3 ) ..................... 29

Swann v. Charlotte-Mecklenburg Board of Education, 343
F.Supp. 667 (1 9 6 5 ) .................................................................................6 , 20

Swann v. Charlotte-Mecklenburg Board of Education, 369
F.2d 29 (1 9 6 6 ) ..........................................................................................6 , 20

The Francis Wright, 105 U.S. 381, 386 ( 1 8 8 2 ) ................................  29

Turner v. Bank of North America, 4 Dali. (U.S.) 8 (1799) . . .  29

United States v. Montgomery County Board of Education,
395 U.S. 225 ( 1 9 6 9 ) ...............................................................................  19

Walters v. St. Louis, 347 U.S. 231 (1 9 3 4 ) ............................................  17

Watson v. City of Memphis, 373 U.S. 526 (1 9 6 3 ) ................................. 18

Wiscart v. D’Auchy, 3 Dali. (U.S.) 321 (1 7 9 6 ) ...................................  29

Yakus v. United States, 321 U.S. 414 ( 1 9 4 4 ) ...................................  29

( V)

Page





IN THE

S u p r e m e  C o u r t  o f  t h e  U n it e d  S t a t e s
O C T O B E R  T E R M , 1970

No. 281

JAMES E. SWANN, et al., Petitioners, 

v.

CHARLOTTE-MECKLENBURG BOARD OF 
EDUCATION, et al.,

No. 349

CHARLOTTE-MECKLENBURG BOARD OF 
EDUCATION, et al., Petitioners,

v.

JAMES E. SWANN, et al.

O N  W R IT  O F  C E R T IO R A R I T O  TH E  U N IT E D  ST A T E S  C O U R T  
O F  A P P E A L S F O R  T H E  F O U R T H  C IR C U IT

AMICUS CURIAE BRIEF FOR THE CLASSROOM TEACHERS 
ASSOCIATION OF THE CHARLOTTE-MECKLENBURG 

SCHOOL SYSTEM, INCORPORATED

INTEREST OF THE AMICUS CURIAE

The Classroom Teachers Association o f the Charlotte- 
Mecklenburg School System, Incorporated, is a non-profit 
membership organization in corporate form, which includes 
in its membership a substantial part o f the 3,553 classroom 
teachers in the Charlotte-Mecklenburg School System and 
which devotes itself to the advancement o f public educa­
tion. The specific objectives o f the organization and its 
members are to promote the interests o f classroom teachers 
in the Charlotte-Mecklenburg School System, and to secure



2

to the students attending the schools o f the System oppor­
tunities to achieve by quality education their highest 
potentialities.

The Classroom Teachers Association o f the Charlotte- 
Mecklenburg School System and its members believe that 
the execution o f the order o f the United States District 
Court for the Western District o f North Carolina and 
the judgment o f the United States Circuit Court for the 
Fourth Circuit affirming such order in part seriously impair 
the educational opportunities offered by the Charlotte- 
Mecklenburg School System to the students in its schools, 
and for this reason the organization files this amicus 
curiae brief in support o f the position o f the Charlotte- 
Mecklenburg Board o f Education, which harmonizes with 
this view.

The parties to the proceedings in Nos. 281 and 349 have 
consented in writing to the filing o f this brief, and the 
writings evidencing such consent have been Filed with the 
Clerk.

The members o f the Supreme Court bar who submit this 
brief in behalf o f the organization do so without compensa­
tion in the hope that they may aid the Supreme Court to 
reach a decision which will restore tranquility to much 
troubled areas o f our land and enable the public schools 
operating in them to function economically and efficiently 
as educational institutions.

OPINIONS BELOW

The opinion o f the Court below consists o f the opinion 
and judgment o f the United States Court o f Appeals filed 
May 26, 1970, which are not yet reported and which 
appear in the Appendix (Volume 3, pages 1262a to 1304a).

In its opinion and judgment, the Court o f Appeals 
reviewed and approved in part and remanded in part for 
further consideration the rulings and findings made by the



3

United States District Court in the following orders and 
documents:

1. Order dated February 5, 1970 (819a-839a), as 
amended, corrected, and clarified on March 3, 1970 (921a).

2. Supplementary Findings o f Fact dated March 21, 
1970 (1 198a-1220a).

3. Supplemental Memorandum dated March 21, 1970 
(1221a-1238a).

JURISDICTION

The Supreme Court has jurisdiction to review this case 
by writ o f certiorari under 28 U.S.C. 1254(1), and has 
accepted it for such purpose by granting writs to the peti­
tioners in No. 281 and the petitioners in No. 349.

QUESTIONS PRESENTED FOR REVIEW

This case presents the following questions for review:
1. Does a public school board comply with the Equal 

Protection Clause o f the Fourteenth Amendment when 
it creates non-discriminatory attendance districts or zones 
and assigns all children, black and white, to neighborhood 
schools in the district or zone in which they reside without 
regard to their race?

2. Does the Equal Protection Clause o f the Fourteenth 
Amendment empower a federal court to order a public 
school board to assign children to the schools it operates to 
balance the student bodies in such schools racially or to 
bus children outside o f non-discriminatory attendance dis­
tricts or zones to effect such purpose?

3. Does Title IV o f the Civil Rights Act o f 1964, which 
prohibits the assignment o f student? to public schools to 
balance the student bodies in such schools racially and to 
bus them from some schools to other schools or from some 
school districts to other school districts to effect such 
purpose, constitute appropriate legislation to enforce the 
Equal Protection Clause within the purview o f the Fifth 
Section o f the Fourteenth Amendment?



4

4. Does the order entered by the District Court and 
affirmed in part by the Circuit Court usurp and exercise 
the authority o f the Charlotte-Mecklenburg Board o f Edu­
cation to devise and implement a non-discriminatory assign­
ment plan conforming to the Equal Protection Clause, and 
require the Charlotte-Mecklenburg Board o f Education to 
violate the Equal Protection Clause by treating in a differ­
ent manner students similarly situated and by denying 
students admission to their neighborhood schools because 
o f their race?

The amicus curiae insists that the first, third, and fourth 
questions must be answered in the affirmative and that the 
second question must be answered in the negative.

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED

The case involves the first and second sections o f the 
Fourteenth Amendment; the first and second sections o f 
Article III o f the Constitution; and Title IV o f the Civil 
Rights Act o f 1964. These constitutional and statutory 
provisions are printed in the Appendix.

STATEMENT OF THE CASE

A. The Charlotte-Mecklenburg Public School System

The writ in No. 281 and the writ in No. 349 present to 
the Supreme Court for review the judgment entered by the 
United States Court o f Appeals for the Fourth Circuit on 
May 26, 1970, in the civil action entitled James E. Swann 
and others, Plaintiffs, v. Charlotte-Mecklenburg Board of 
Education and others, Defendants. For ease o f narration 
and understanding, James E. Swann and his associates in 
this litigation are hereafter called the plaintiffs, and the 
Charlotte-Mecklenburg Board o f Education is hereafter 
designated as the School Board.

The School Board operates the Charlotte-Mecklenburg 
Public School System in Charlotte and Mecklenburg County, 
North Carolina, political subdivisions o f North Carolina.



5

Charlotte, which is the county seat o f Mecklenburg County, 
is inhabited by 239,056 persons who are concentrated 
within the 64 square miles embraced by its city limits, an 
area larger than the District o f Columbia. Mecklenburg 
County embraces 550 square miles, has an east-west span 
of 26 miles, a north-south span of 36 miles, and has a 
population o f 352,006, exclusive o f those residing within 
the area embraced by Charlotte.

In the discharge o f its state-assigned duties, the School 
Board operates 10 high schools, 21 junior high schools, and 
72 elementary schools to house and instruct the 84,500 
school children residing in Charlotte and Mecklenburg 
County. Of these school children, 24,000, or 29 percent, 
are black, and 60,500, or 71 percent, are white. Approxi­
mately 95 percent o f all the black children who reside 
within the limits o f the City o f Charlotte live in predomi­
nately black residential sections in northwest Charlotte, and 
a substantial portion o f the other black children in Meck­
lenburg County reside in predominately black residential 
areas adjacent to it. (293a-298a).

Prior to Brown v. Board o f  Education o f  Topeka, 347 U.S. 
483 (1954), the School Board operated the public schools of 
Charlotte and Mecklenburg County as racially segregated 
schools in conformity with the interpretation then placed 
upon the Equal Protection Clause o f the Fourteenth Amend­
ment. Subsequent to the Brown Case and prior to 1965, 
the School Board established an effective system o f deter­
mining admission to its public schools on a non-racial basis. 
It did this, and thus converted its formerly dual system 
into a unitary system by establishing non-discriminatory 
attendance districts or zones, and assigning the school 
children subject to its jurisdiction to their neighborhood 
schools irrespective o f race.

Inasmuch as some of the attendance districts or zones in 
rural Mecklenburg County and some o f its suburban resi­
dential districts or zones in or adjacent to Charlotte are 
extremely large, the School Board voluntarily established 
a transportation system for the sole purpose o f carrying



6

children residing in these geographically large districts or 
zones to the nearest available schools. As a consequence, 
it now uses 280 buses to bus some 23,000 school children 
to rural and suburban schools. (864a)

In 1965 the plaintiffs brought the instant action against 
the School Board in the United States District Court for 
the Western District o f North Carolina seeking to obtain 
a compulsory desegregation decree. After hearing the evi­
dence in the case, the District Court found that the School 
Board had complied with the requirement o f the Equal 
Protection Clause and denied the decree sought by them. 
Swann v. Charlotte-Mecklenburg Board o f  Education, 243 
F.Supp. 667 (1965). This ruling was affirmed by the 
Circuit Court. Swann v. Charlotte-Mecklenburg Board o f  
Education, 369 F.2d 29 (1966).

B. The Plan Submitted by the Charlotte- 
Mecklenburg Board of Education

Subsequent to the decision in Green v. County School 
Board o f  New Kent County, 391 U.S. 430 (1968), the 
plaintiffs filed a motion in the cause seeking further deseg­
regation. (2 a)

Although it found as a fact that the “ location o f  schools 
in Charlotte has followed the local pattern o f residential 
development, including its de facto patterns o f segregation” 
(305 a), and that the School Board members “ have achieved 
a degree and volume o f desegregation o f schools apparently 
unsurpassed in these parts and have exceeded the per­
formance o f any school boards whose actions have been 
reviewed in the appellate court decisions”  (31 la -312a), the 
District Court resumed hearings in the case on the ground 
that the Green Case had changed “ the rules o f the game.” 
(312a)

It is to be noted that subsequently the District Court on 
its own motion reversed its previous findings that any racial 
imbalance in the Charlotte-Mecklenburg public schools was 
the result o f de facto segregation by asserting that “ there is



7

so much State action imbedded in and shaping these events 
that the resulting segregation is not innocent or ‘de facto’ 
and the resulting schools are not ‘unitary’ or ‘desegregated’.”  
(662a) The amicus curiae submits with all due deference 
that there is no testimony in the record to sustain this par­
ticular finding.

Pursuant to the orders entered by the District Court on 
April 23, 1969 (285a), June 20, 1969 (448a), August 15, 
1969 (579a), and December 1, 1969 (698a), the School 
Board filed desegregation plans (330a, 480a, 670a) which 
were rejected by the District Court.

Meanwhile on December 2, 1969, the Court appointed 
Dr. John Finger, a resident o f Rhode Island, as a special 
consultant to devise a desegregation plan for the guidance 
of the Court. (819a) Dr. Finger had originally entered the 
case as a partisan witness for the plaintiffs, and for this 
reason a good case can be made for the proposition that he 
lacked the impartiality which is desirable in one selected for 
the task o f assisting a judge in keeping the scales o f justice 
evenly balanced between adverse litigants. (1279a)

While the District Court orders and the School Board 
plans mentioned above shed light on the School Board’s 
devotion to the neighborhood school concept, and its reluc­
tance as an elected public body to engage in excessive and 
expensive busing o f school children, the subsequent School 
Board plan o f February 5, 1970, and the subsequent District 
Court order o f February 5, 1970, relating to it really illumi­
nate the issues which now confront the Supreme Court. 
(726a-748a, 819a-839a)

By this plan, the School Board proposed that attendance 
districts or zones should be drastically gerrymandered in 
such a manner as to include as many blacks as possible in 
each district or zone, and that all school children subject to 
its jurisdiction should be required to attend the school 
appropriate to their educational standings in the district or 
zone o f their residence. The plan would have accomplished 
a racial mixture o f school children in all o f the 103 schools



8

in the system, except three elementary white schools 
located in neighborhoods inhabited exclusively by members 
o f the white race. (726a-748a)

The School Board plan contemplated that from 17 per­
cent to 36 percent o f the student body in nine o f the ten 
senior high schools in the system would be black; that not 
more than 38 percent o f the student body in 20 o f the 21 
junior high schools in the system would be black; and that 
not more than 40 percent o f the student body in 60 o f the 
72 elementary schools in the system would be black.

Under the School Board plan, the remaining high school, 
Independence High, would be 2 percent black and 98 per­
cent white; the remaining junior high school, Piedmont 
Junior High, would be 90 percent black and 10 percent 
white; and all o f the 12 remaining elementary schools, 
except the three white elementary schools, would be 83 
percent to 1 percent black. (726a-748a)

The School Board judged it to be impossible to desegre­
gate the three white elementary schools, and to further 
desegregate the nine predominately black elementary schools 
by geographic districting or zoning because o f the de facto 
segregation prevailing in the residential areas in which the 
children assigned to these 12 elementary schools lived. 
(730a-732a) The District Court made a specific finding in 
its Supplemental Findings o f Fact o f March 21, 1970, 
which establishes the validity o f the School Board’s conclu­
sion concerning Independence High, Piedmont Junior High, 
and the 9 predominately black elementary schools, all of 
which are located in northwest Charlotte or its environs.

The District Court expressly found that “ 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 desegregate the all-black schools in northwest 
Charlotte without providing (or continuing to provide) bus 
or other transportation for thousands o f children. All plans 
and all variation o f plans considered for this purpose lead 
in one fashion or another to that conclusion.”  (1208 a)



9

The amicus curiae submits that it beggars imagination to 
conjecture how any plan could have obtained a greater 
degree o f racial integration by gerrymandering attendance 
districts or zones in a political subdivision where white 
children outnumber black children 71 to 29, and where 
most o f the black children are concentrated residentially in 
an area inhabited exclusively by members o f their race.

The School Board plan did not stop with proposing such 
a high degree o f racial integration among the student bodies 
in the schools subject to its jurisdiction. It made these 
three additional proposals:

1. That the faculty o f each school should be assigned in 
such a manner that the ratio o f black teachers to white 
teachers in each school would be approximately 1 to 3 in 
accordance with the ratios in the entire faculty o f the 
system (737a);

2. That the School Board should furnish 4,935 addi­
tional students in-district or in-zone transportation to the 
schools in the proposed gerrymandered attendance districts 
or zones in accordance with the North Carolina law which 
forbids such transportation within one and one-half mile 
distances (736a); and

3. That any black child in any school having more than 
30 percent o f his race in its student body should be allowed 
to transfer to any school having less than 30 percent o f  his 
race; whereas a white child should be permitted to transfer 
to another school only if the school he is attending has 
more than 70 percent o f his race and the school to which 
he seeks transfer is less than 70 percent white. (734a-735a)

At the same time, Dr. Finger submitted to the District 
Court his plan o f desegregation which contemplated that 
the School Board should be required by the Court to deny 
approximately 23,000 additional children admission to the 
neighborhood schools in the districts or zones o f their resi­
dence, and to transport them by bus or otherwise substan­
tial distances in order to produce a greater racial mixture



10

in student bodies. (819a, 825a-827a, 829a-839a, 1198a, 
1208a-1214a, 1231a-1234a, 1268a-1269a)

C. The Order o f the District Court

On February 5, 1970, the District Court entered an 
order approving the School Board plan, subject to certain 
drastic conditions and revisions recommended by Dr. Finger. 
(819a-839a) By adopting these conditions and revisions, 
the District Court commanded the School Board to do 
these things:

1. To deny hundreds o f black high school students 
admission to a nearby high school which would have had 
a racial composition o f 36 percent black and 64 percent 
white under the School Board plan, and to bus them from 
their residences in northwest Charlotte through center-city 
traffic a distance o f some 12 or 13 miles to Independence 
High School, which is located in a white suburban residen­
tial area;

2. To deny several thousands o f black junior high school 
students admission to their neighborhood junior high schools 
in the inner city, and to bus them substantial distances to 
nine predominately white suburban schools located in other 
attendance districts or zones; and

3. To deny thousands o f black and thousands o f white 
elementary school children admission to 31 elementary 
schools located within their respective attendance districts 
or zones, and to bus them distances approximating 15 miles 
to elementary schools situated in other attendance districts 
or zones.

The sole purpose o f the District Court in ordering the 
School Board to dislocate and bus the hundreds o f black 
high school students to Independence High School was to 
make Independence High less white, and the sole purpose 
o f the District Court in ordering the School Board to dis­
locate and bus several thousands o f junior high school 
students was to reduce the percentage o f blacks in Piedmont 
Junior High from 90 percent to 32 percent. (825a-826a)



11

The sole purpose o f the order o f the Court commanding 
the School Board to dislocate and bus thousands o f ele­
mentary school children was to alter the racial composition 
o f the student body in 9 predominately black inner-city 
schools and in 24 predominately white suburban schools. 
To accomplish this purpose, the District Court commanded 
the School Board to dislocate and bus thousands o f black 
first, second, third, and fourth grade students from 9 pre­
dominately black inner-city schools to 24 predominately 
white suburban schools, and to dislocate and bus thousands 
o f white fifth and sixth grade students from the 24 pre­
dominately white suburban schools to the 9 predominately 
black inner-city schools. (826a)

The order o f the District Court did not stop with these 
things. It further ordered the School Board to establish 
and implement a continuing program o f assigning students 
throughout the school year “ for the conscious purpose o f 
maintaining each school * * * in a condition o f desegrega­
tion.”  (824a)

The record clearly discloses the reasoning which prompted 
the District Court to seek to achieve the purposes o f its 
order.

Prior to its order o f February 5, 1970, namely, on April 
24, 1969, the District Court manifested its disapproval o f 
the School Board’s adherence to the neighborhood school 
concept by this statement: “ Today people drive as much as 
40 or 50 miles to work; 5 to 10 miles to church; several 
hours to football games; all over the country for civic 
affairs o f various types. The automobile has exploded 
the old-fashioned neighborhood * * * If this Court were 
writing the philosophy o f education, he would suggest that 
educators should concentrate on planning schools as educa­
tional institutions rather than as neighborhood proprietor­
ships.”  (306 a)

When it entered its order o f February 5, 1970, the 
District Court justified adding the conditions and revisions 
recommended by Dr. Finger on the ground that the School



12

Board plan “ relies almost entirely on geographical attend­
ance zones,”  while “ the Finger plan goes further and pro­
duces desegregation o f all the schools in the system.” 
(819a)

What has been said makes it manifest that the District 
Court entertained the opinion that the Equal Protection 
Clause o f the Fourteenth Amendment makes it obligatory 
for a school board to mix student bodies racially in every 
school subject to its jurisdiction if children are available for 
mixing, and that a school board must deny a sufficient 
number o f school children admission to their neighborhood 
schools and bus them to schools elsewhere either to over­
come racial imbalances in their neighborhood schools or in 
the schools elsewhere, regardless o f whether such racial 
imbalances are produced by arbitrary or invidious discrimi­
nation on the part o f the school board or simply result 
from adventitious de facto residential segregation or other 
cause.

The amicus curiae has not undertaken to state with 
exactitude the number o f additional school children which 
the District Court ordered the School Board to deny admis­
sion to their neighborhood schools and to bus from one 
school to another or from one school district to another, or 
the additional cost which the carrying out o f the District 
Court’s order in this respect will impose upon the School 
Board.

This action o f the amicus curiae has been deliberate 
because these matters are in serious dispute between the 
School Board and the District Court.

When the District Court entered its order o f February 5, 
1970, and thereby adopted the Finger plan in virtually its 
entirety, the School Board estimated that the order required 
it to bus 23,384 additional students an average round trip 
o f 30 miles each school day, and that to do this the School 
Board would have to acquire 526 additional buses and 
additional parking spaces at an original capital outlay o f 
$3,284,448.94; and thereafter expend each year an addi­



13

tional $1,065,391.98 in employing additional personnel and 
defraying other operating costs. (853a, 866a)

On March 3, 1970, the District Court modified its order 
o f February 5, 1970. (921a) The School Board then calcu­
lated that the order as modified will require it to transport 
19,285 additional students and to purchase for such purpose 
422 additional buses and additional parking spaces at an 
original capital outlay o f $2,369,100.00; and thereafter to 
expend each year for additional personnel and operating 
expenses o f such buses $284,800.00. (1269a-1270a)

The Court estimated that the execution o f its order as 
modified would require the School Board to bus 13,300 
additional students and to purchase for such use 138 addi­
tional buses at an original capital outlay o f $745,200.00; 
and to expend thereafter annually $266,000.00 for operat­
ing costs o f such additional buses, exclusive o f what it will 
have to expend to compensate any additional personnel 
necessary for their operation. (1259a-1261a, 1269a)

The Court arrived at its figures by suggesting that the 
School Board could reduce its estimate o f the expenses 
incident to busing the thousands o f children affected by its 
order by drastically staggering school openings and closings. 
The School Board replied to this suggestion by asserting 
that the suggested staggering o f school openings and closings 
would require some children to leave home as early as 6:30 
a.m. and prevent some o f them from returning, home before 
5:00 p.m. (864a-865a)

D. The Judgment of the United States Court of 
Appeals for the Fourth Circuit

At the instance o f the School Board, the United States 
Court o f Appeals for the Fourth Circuit reviewed the orders 
o f the District Court. On May 26, 1970, the Circuit Court 
rendered its judgment affirming the orders o f the District 
Court insofar as they related to the assignment and busing 
o f senior high school and junior high school students, and



14

remanding to the District Court for further consideration 
the provisions o f the order o f the District Court relating to 
the assignment and busing o f elementary school students. 
(1262a-1304a)

In making this remand, the Circuit Court adjudged that 
“ not every school in a unitary system need be integrated,” 
and adopted a “ test o f reasonableness—instead o f one that 
calls for absolutes.”  (1267a)

The writ o f certiorari granted to the School Board pre­
sents for review the validity o f the Circuit Court ruling 
approving the orders o f the District Court relating to the 
assignment and busing o f senior high school and junior high 
school students and the writ o f certiorari granted to the 
original plaintiffs presents for review the question o f the 
validity o f the ruling o f the Circuit Court vacating the 
order o f the District Court relating to the assignment and 
busing o f elementary school students.

Subsequent to these events, namely, on August 3, 1970, 
the District Court reinstated and reaffirmed its order of 
February 5, 1970, in respect to the assignment and busing 
o f the elementary school students. (1320a) While the 
validity o f this particular order may not be before the 
Supreme Court, the question which it raises is involved in 
the matter to be reviewed under the writ granted to James
E. Swann and those associated with him in this litigation.

The amicus curiae understands that the School Board has 
filed an yet unprinted motion with the Supreme Court for 
a stay o f the order entered by the District Court on August 
3, 1970, after the hearing o f the case in the Circuit Court.

SUMMARY OF ARGUMENT

In the final analysis, the questions presented for review 
in this case do not arise out o f any real controversy in 
respect to the testimony. They arise out o f a fundamental 
disagreement between the School Board, on the one hand, 
and the District Court and some of the Circuit Court



15

Judges, on the other, with respect to how the Equal Protec­
tion Clause applies to the assignment o f students to public 
schools.

The view o f the School Board may be epitomized in this 
fashion:

The Equal Protection Clause applies only to State action 
which is arbitrary or invidious, and, hence, it leaves a public 
school board, acting as a State agency, entirely free to 
assign students to its schools by any method satisfactory to 
itself if such method is not arbitrary or invidious. A public 
school board acts arbitrarily or invidiously if it assigns 
students to its schools for racial reasons, but a public 
school board does not act arbitrarily or invidiously if it 
assigns students to its schools for non-racial reasons, such 
as the promotion o f the efficiency o f school administration, 
the economy o f school administration, or the convenience 
o f the students or their parents. This being true, the Equal 
Protection Clause does not impair in any way the power o f 
a public school board to create fairly drawn geographic 
attendance districts or zones, and to assign all students 
without regard to their race to neighborhood schools in 
the respective districts or zones in which they reside even 
though such action may result in some racial imbalances 
in the schools serving areas predominately inhabited by 
members o f one race.

The view o f the District Court and some o f the Circuit 
Court Judges may be summarized in this way:

It is highly desirable from an educational viewpoint to 
mix students in public schools racially in the highest pos­
sible degree. Hence, the Equal Protection Clause imposes 
upon a public school board the positive duty to balance 
racially all the schools it operates if black and white chil­
dren are available for this purpose; and to deny school 
children admission to their neighborhood schools and bus 
them to other schools in other areas, no matter how distant, 
in sufficient numbers to effect such racial balancing.



1 6

The School Board refutes this proposition by saying that 
the Equal Protection Clause does not require action which 
may be desirable; it merely prohibits action which is arbi­
trary or invidious.

When it is stripped o f irrelevancies and surmises, the 
record discloses a surprisingly simple state o f facts which 
are relatively free o f conflict insofar as they relate to the 
crucial issues.

After the first Brown Case, 347 U.S. 483 (1954), the 
School Board converted its previously dual system of 
schools into a unitary system o f schools within which no 
child was excluded because o f the child’s race. The School 
Board did this by a geographic assignment plan applicable 
in like manner to all children without regard to their race. 
Its action in this regard was adjudged to be in compliance 
with the Equal Protection Clause by both the District Court 
and the Court o f Appeals.

Subsequent to the Green Case, 391 U.S. 430 (1968), the 
District Court ordered the School Board to submit another 
plan for the desegregation o f its schools. Pursuant to this 
order, the School Board proposed a plan which was reason­
ably designed to secure the maximum amount o f racial 
mixture obtainable in the student bodies in its schools 
without abandonment o f the neighborhood school concept 
by restructuring its geographic attendance districts or zones, 
and assigning all o f the children subject to its jurisdiction 
without regard to their race to their respective neighbor­
hood schools in the districts or zones in which they reside.

The Court rejected the School Board plan simply because 
it did not racially balance one senior high school out o f the 
system’s ten senior high schools, one junior high school out 
o f the system’s 21 junior high schools, and nine predomi­
nately black and three predominately white elementary 
schools out o f the system’s 72 elementary schools.

Instead o f approving the reasonable plan submitted by 
the School Board, the District Court, in essence, adopted 
the Finger Plan which requires the School Board to deny



17

thousands o f children admission to their neighborhood 
schools, and to bus them to other schools in other areas 
merely to eliminate the racial imbalances in these particular 
schools. The School Board insists that the action o f the 
District Court was not only inconsistent with the Equal 
Protection Clause, but violates Title IV o f the Civil Rights 
Act o f 1964, and that the Circuit Court erred insofar as it 
approved the action o f the District Court.

ARGUMENT

I.

The Charlotte-Mecklenburg Board of Education 
has complied with the Equal Protection Clause 
of the Fourteenth Amendment and the Supreme 
Court decisions interpreting it by establishing and 
operating a unitary public school system, which 
receives and teaches students without discrimi­
nation on the basis of their race or color. Any 
racial imbalance remaining in any of the schools 
under the jurisdiction of the Board represents de 
facto segregation, which results from the purely 
adventitious circumstance that the inhabitants of 
particular areas in and adjacent to the city of 
Charlotte are predominantly of one race.

The Equal Protection Clause o f the Fourteenth Amend­
ment, which was certified to be a part o f the Constitution 
on July 28, 1868, forbids a state to “ deny to any person 
within its jurisdiction the equal protection o f the laws.”

By these words, the Equal Protection Clause requires a 
state to treat in like manner all persons similarly situated. 
State Board o f  Tax Commissioners o f  Indiana v. Jackson, 
283 U.S. 527 (1931); Maxwell v. Bugbee, 250 U.S. 525 
(1919). The clause does not require identity o f treatment. 
Walters v. St. Louis, 347 U.S. 231 (1934). It permits a state 
to make distinctions between persons subject to its jurisdic­
tion if the distinctions are based on some reasonable classi­



18

fication, and all persons embraced within the classification 
are treated alike. It merely outlaws arbitrary or invidious 
discrimination. Avery v. Midland County, 390 U.S. 474 
(1968); Missouri Pacific Railway Co. v. Mackey, 127 U.S. 
205 (1888).

From July 28, 1868, until May 17, 1954, the Equal Pro­
tection Clause o f the Fourteenth Amendment was inter­
preted to sanction the “ separate but equal doctrine,”  which 
permitted a state to segregate school children in its public 
schools on the basis o f race when it furnished equal facili­
ties for the education o f the children o f each race. Gong 
Lum v. Rice, 275 U.S. 78 (1927); Cumming v. Richmond 
County Board o f  Education, 175 U.S. 528 (1899); Plessy 
v. Ferguson, 163 U.S. 537 (1896).

On May 17, 1954, the Supreme Court handed down its 
historic decision in Brown v. Board o f  Education o f  Topeka, 
347 U.S. 483 (1954), adjudging “ that in the Field o f public 
education the doctrine o f ‘separate but equal’ has no place”  
and holding that a state violates the Equal Protection Clause 
if it denies any child admission to any o f its public schools 
on account o f the child’s race.

On the same day the Supreme Court handed down 
Bolling v. Sharpe, 347 U.S. 497 (1954), ruling that the Due 
Process Clause o f the Fifth Amendment imposes the same 
inhibition on the public schools o f the District o f Columbia 
that the Equal Protection Clause does on the public schools 
o f a state, and one year later the Supreme Court announced 
its implementing decision in second Brown, which is 
reported as Brown v. Board o f  Education o f  Topeka, 349 
U.S. 294 (1955).

Since these decisions the Supreme Court has applied the 
Equal Protection Clause to varying factual situations arising 
in various Southern public school districts in the following 
cases: Cooper v. Aaron, 358 U.S. 1, 20 (1958); Shuttles- 
worth v. Birmingham Board o f  Education, 358 U.S. 101 
(1958); Bush v. Orleans Parish School Board, 364 U.S. 500 
(1960); Watson v. City o f  Memphis, 373 U.S. 526 (1963);



19

Goss v. Board o f  Education o f  Knoxville, 373 U.S. 683 
(1963); Griffin v. County School Board o f  Prince Edward 
County, 377 U.S. 218 (1964); Bradley v. School Board o f  
City o f  Richmond, 382 U.S. 103 (1965); Rogers v. Paul, 
382 U.S. 198 (1965); Green v. County School Board o f  
New Kent County, 391 U.S. 430 (1968); Raney v. Board 
o f  Education o f  the Gould School District, 391 U.S. 443
(1968) ; Monroe v. Board o f  Commissioners o f  the City o f  
Jackson, 391 U.S. 450 (1968); United States v. Montgomery 
County Board o f  Education, 395 U.S. 225 (1969); Alexan­
der v. Holmes County Board o f  Education, 396 U.S. 19
(1969) ; Dowell v. Board o f  Education o f  the Oklahoma 
City Public Schools, 396 U.S. 269 (1969); Carter v. West 
Felicana Parish School Board, 396 U.S. 226 (1969); Carter 
v. West Felicana Parish School Board, 396 U.S. 290 (1970); 
and Northcross v. Board o f  Education o f  the Memphis City 
Schools, 397 U.S. 232 (1970).

Besides, individual Supreme Court Justices, acting as 
Circuit Justices, have expressed opinions on the subject 
in these cases: Board o f  School Commissioners o f  Mobile 
County v. Davis, 11 L. ed. 2d 26 (1963); Keyes v. School 
District No. 1, Denver, 396 U.S. 1215 (1970); and Alexan­
der v. Holmes County Board o f  Education, 396 U.S. 1218 
(1969).

The record in the instant case embraces hundreds o f 
pages o f evidence, orders, and judgments, and for that 
reason, the case lends itself to much writing. But the issues 
arising in the case are simple, and it would complicate that 
simplicity to analyze the cited decisions in detail. In their 
ultimate analysis, they interpret the Equal Protection Clause 
as follows:

1. The Equal Protection Clause makes it unconstitu­
tional for a state to deny any child admission to any public 
school it operates on account o f the child’s race.

2. In consequence, the Equal Protection Clause imposes 
upon a state, acting through its appropriate agencies, the 
responsibility to establish a system o f determining admis­
sion to its public schools on a non-racial basis.



20

3. A state, which operated a racially segregated system 
o f public schools on May 17, 1954, fulfills this responsi­
bility by converting its dual public school system into a 
unitary public school system.

4. A unitary public school system is one “ within which 
no person is to be effectively excluded from any school 
because o f race or color.”

When the Equal Protection Clause as thus interpreted is 
applied to the facts in this case, it is obvious that the 
School Board has fully converted its Pre-Brown dual school 
system into a unitary school system within which no child 
is actually excluded from any school because o f  race or 
color. The School Board has done this by creating non- 
discriminatory attendance districts or zones and assigning 
all children, black and white, to neighborhood schools in 
the district or zone in which they reside without regard to 
their race.

These conclusions are explicit in the rulings made by the 
District Court and the Circuit Court in 1965 and 1966. 
Swann v. Charlotte-Mecklenburg Board o f  Education, 243
F.Supp. 667 (1965); Swann v. Charlotte-Mecklenburg Board 
o f  Education, 369 F.2d 29 (1966). They are implicit in the 
findings made by the District Court in its order o f April 
23, 1969, that the School Board had “ achieved a degree o f 
desegregation o f schools apparently unsurpassed in these 
parts”  and had “ exceeded the performance o f any school 
board whose actions have been reviewed in the appellate 
court decisions,”  (311a-312a) and that the Schools of 
Charlotte, in essence, conform to de facto patterns o f resi­
dential segregation. (305 a)

To be sure, the District Court, acting sua sponte, under­
took to recall these findings in its Memorandum Opinion 
o f November 7, 1969, and to assert that racial imbalances 
in the Schools o f Charlotte are “ not innocent or de facto." 
(662a)



21

The amicus curiae submits in all earnestness that there 
is no evidence in the record to sustain the District Court’s 
assertion in this respect. Be this as it may, the Supreme 
Court is empowered in cases o f an equitable nature and 
cases involving constitutional questions to review the evi­
dence and make its own findings. If it follows this course 
in this case, the Supreme Court will be impelled to the 
conclusion that there is not a vestige o f state-imposed seg­
regation in the Charlotte-Mecklenburg School System.

Besides, the District Court’s assertion that racial imbal­
ances in the schools o f Charlotte are “ not innocent or de 
facto" is totally repudiated by its subsequent finding that 
there is no way to desegregate the black schools in north­
west Charlotte without transporting thousands o f children 
by bus or other means. (1208a)

When all is said, the School Board went far beyond the 
call o f any duty imposed upon it by the Equal Protection 
Clause when it proposed in its plan o f February 2, 1970, 
to gerrymander attendance districts or zones in order to 
achieve the highest degree o f desegregation obtainable 
without virtual abandonment o f the neighborhood school 
concept. The amicus curiae expresses no opinion as to 
whether this proposal is repugnant to the constitutional or 
legal rights o f any child.



2 2

II.
The Equal Protection Clause of the Fourteenth 
Amendment does not require or empower a 
Federal Court to order a public school board to 
assign children to the schools it operates merely 
to balance the student bodies in such schools 
racially, or to bus children outside reasonable 
geographic attendance districts or zones to effect 
such purpose. The District Court ordered the 
Charlotte-Mecklenburg School Board to do both 
of these things, and the Circuit Court erred 
insofar as it affirmed the District Court order.

The facts make it clear that the order entered by the 
District Court on February 5, 1970, requires racial balanc­
ing in the Charlotte-Mecklenburg School System and the 
busing o f thousands o f children outside their geographic 
attendance districts or zones to effect such balancing.

Indeed, the District Court virtually admits this to be true 
by setting forth in its Supplemental Findings o f Fact of 
March 21, 1970, a specific finding that there is no other 
way to desegregate the black schools in northwest Charlotte. 
(1208 a)

Upon the entire record, the conclusion is inescapable 
that the District Court fell into error because it honestly 
believed that the Equal Protection Clause and certain deci­
sions interpreting it impose upon a public school board an 
absolute duty to do these things:

1. To balance racially to the highest degree possible all 
the schools subject to its control if black and white children 
are available for that purpose anywhere within the territory 
subject to its jurisdiction, no matter how vast such territory 
may be; and

2. To effect such racial balancing by denying both black 
and white children admission to their neighborhood schools 
and busing them to other schools in other areas in suffi­
cient numbers to overcome racial imbalances either in their 
neighborhood schools or in the other schools, regardless o f



23

whether the racial imbalances result from de facto residen­
tial segregation or other cause, and regardless o f these other 
factors: the distances the children are to be bused, the time 
required for their busing, the impact o f their exclusion 
from their neighborhood schools and their busing upon 
their minds and hearts, the effect o f these things upon the 
management o f the homes which must nurture them, the 
traffic hazards involved, and the additional expense foisted 
upon heavily burdened taxpayers.

There is no other rational explanation for the court order 
which disrupts the lives o f thousands o f school children and 
the management o f the thousands o f homes from which 
they come, and diverts tremendous sums o f tax-raised 
moneys from the enlightenment o f their minds to the 
busing o f their bodies.

The Equal Protection Clause does not require any court 
to enter any such order. It does not empower any court 
to enter any such order. Indeed, it forbids any court to 
do so.

As interpreted in the first Brown Case, 347 U.S. 483 
(1954), and all subsequent Supreme Court decisions rele­
vant to the subject, the Equal Protection Clause forbids a 
public school board, which acts as a state agency, to deny 
any child admission to any school it operates on account o f 
the child’s race. A public school board obeys the Clause by 
maintaining a unitary school system, i.e., a school system 
“ within which no person is to be effectively excluded from 
any school because o f race or color.”  Northcross v. Board 
o f  Education o f  the Memphis City Schools, 397 U.S. 232 
(1970); Alexander v. Holmes County Board o f  Education, 
396 U.S. 19 (1969). See also the opinion o f Mr. Justice 
Black, acting as Circuit Justice, in Alexander v. Holmes 
County Board o f  Education, 396 U.S. 1218 (1969).

The power to assign children to state supported schools 
belongs to the public school board which operates them. 
The Equal Protection Clause does not undertake to transfer 
this power to the Federal Courts. It merely subjects the



2 4

exercise o f the power by the public school board to this 
limitation: The board must not exclude any child from any 
school it operates because o f the child’s race.

If it faithfully observes this limitation upon its power, a 
public school board has the right to assign children to the 
schools it operates in any non-discriminatory fashion satis­
factory to itself.

The School Board exercised this right when it created non- 
discriminatory attendance districts or zones and assigned all 
children, whether black or white, to neighborhood schools 
in the districts or zones o f their residence without regard to 
race.

Since the children are similarly situated and the School 
Board treats them exactly alike, its action is in complete 
harmony with the Equal Protection Clause. It accords, 
moreover, with the implementing decision in the second 
Brown Case, 349 U.S. 294 (1955), which expressly recog­
nizes that a school board may employ non-discriminatory 
geographic zoning o f school districts “ to achieve a system 
o f determining admission to the public schools on a non- 
racial basis.”

As is true in respect to virtually every city o f any size in 
our land, the different races are concentrated to a substan­
tial degree in separate residential areas in Charlotte, and 
for this reason the School Board’s non-discriminatory geo­
graphic zoning and assignment program necessarily results 
in some racial imbalances in some schools.

Notwithstanding this, the order o f the District Court 
commanding the School Board to exclude thousands o f 
children from their neighborhood schools and to bus them 
long distances to other schools to overcome these racial 
imbalances is without support in the Equal Protection 
Clause.

This is true for an exceedingly plain reason. The Equal 
Protection Clause does not prohibit any discrimination 
except that which is arbitrary or invidious.



25

It inevitably follows that where school attendance areas 
are not arbitrarily or invidiously fixed so as to include or 
exclude children o f a particular race, the Equal Protection 
Clause does not prohibit a state or local school board from 
requiring that the children living in each attendance area 
attend the school in that area, even though the effect of 
such a requirement, in a locality where the different races 
are concentrated in separate residential areas, is racial imbal­
ance or de facto segregation in the schools.

The conclusion that the Equal Protection Clause does 
not impose upon a public school board any mandate to 
remove any racial imbalance in its schools occasioned by 
de facto residential segregation or non-discriminatory geo­
graphic assignments is expressly supported in Bell v. School 
City o f  Gary, Ind. (7 CA-1963), 324 F.2d 209, and Downs 
v. Board o f  Education o f  Kansas City, Kansas (10 CA-1964), 
336 F.2d 998. Moreover, it is compelled by first Brown, 
347 U.S. 483 (1954), and all the subsequent Supreme Court 
cases applying its holding, as well as by the language o f the 
Equal Protection Clause itself.1

Despite the fact that the Charlotte-Mecklenburg School 
System is in the South, racial imbalances produced in its 
schools by de facto residential segregation are just as inno­
cent as racial imbalances produced in the public schools o f 
the North by the same cause, and are equally exempt from 
federal interference, whether legislative, executive, or judi­
cial, under the Equal Protection Clause, which, as already 
pointed out, condemns no discrimination except that which 
is arbitrary or invidious.

1 While such action may not be customary in briefs, the amicus 
curiae wishes to note that this conclusion is supported by the text 
writer in 15 Am. Jur. 2d, Civil Rights, Section 39, Page 433, and 
by one of the most recent commentaries on the Constitution of 
the United States, i.e., Bernard Schwartz’s “ Rights of the Person ”  
Volume II, Section 501, Page 593-596.



2 6

The amicus curiae is confident that the Supreme Court 
will so adjudge. Indeed, it must do so if the United States 
is truly one nation under one flag and one Constitution.

It no longer comports with intellectual integrity to call 
all racial imbalances in the public schools o f the South 
de jure, and all racial imbalances in the public schools of 
the North de facto.

There is now no de jure school segregation anywhere in 
our land. Racial imbalances in public schools are either 
arbitrary or invidious and, hence, constitutionally impermis­
sible, both North and South, or innocent and, hence, con­
stitutionally permissible, both North and South. Racial 
imbalances resulting from de facto residential segregation 
or non-discriminatory districting or zoning, whether in the 
North or in the South, are clearly innocent and constitu­
tionally permissible.

Moreover, it no longer comports with reality, common 
sense, or justice to apply one rule to the North and another 
to the South because the South did not precede the 
Supreme Court in discovering that the “ separate, but equal 
doctrine”  had ceased to be the law of the land.



27

III.

The Fifth Section o f the Fourteenth Amendment 
Empowers Congress to Enforce the Equal Protec­
tion Clause by Appropriate Legislation, the First 
Section o f Article III o f the Constitution Em­
powers Congress to Regulate the Jurisdiction of 
United States District Courts and United States 
Circuit Courts o f Appeals, and the Second Section 
o f Article III o f the Constitution Empowers Con­
gress to Regulate the Appellate Jurisdiction o f the 
Supreme Court. Congress Exercised all o f These 
Powers in an Appropriate Fashion When it Enacted 
Title IV o f the Civil Rights Act of 1964, Which 
Prohibits the Assignment o f Students to Public 
Schools to Balance the Student Bodies in Such 
Schools Racially, and to bus Them From Some 
Schools to Other Schools, or From Some School 
Districts to Other School Districts to Effect Such 
Purpose. The Act’s Prohibition on Busing is Abso­
lute and Deprives Federal Courts o f Jurisdiction to 
Compel School Boards to Bus Students to Over­
come Racial Imbalances in Schools, Even if Such 
Imbalances Result From Discriminatory School 
Board Action. The District Court Order Vio­
lated This Act by Commanding the Charlotte- 
Mecklenburg School Board to do the Things Pro­
hibited by it, and the Circuit Court Joined in Such 
Violation Insofar as it Affirmed the District Court 
Order.

The Equal Protection Clause is limited in objective and 
operation. It imposes this duty and this duty only on a 
state, i.e., to treat in like manner all persons similarly sit­
uated.

In consequence, it forbids a public school board, acting 
as a state agency, to exclude any child from any school 
because o f the child’s race.

Further than that it does not go. It does not rob any 
public school board o f its inherent authority to assign child­



28

ren o f any race to their neighborhood school if the school 
board acts for reasons other than racial reasons, such as a 
purpose to promote ease o f school administration, conven­
ience o f the children and the homes from which they come, 
or economy o f operation.

Hence, it does not empower federal courts to deny child­
ren o f any race admission to their neighborhood schools and 
to bus them to other schools in other areas to remedy racial 
imbalances in their neighborhood schools or the other 
schools arising out o f the residential patterns o f their neigh­
borhoods or o f the other areas.

And, above all things, the Equal Protection Clause does 
not intend that little children, black or white, shall be treated 
as pawns on a bureaucratic or judicial chess board.

When it enacted Title IV o f the Civil Rights Act of 1964 
to enforce the Equal Protection Clause, Congress recognized 
the validity o f these observations concerning the meaning 
o f the Equal Protection Clause. Moreover, it was not oblivi­
ous to the inescapable reality that the different races are 
concentrated to substantial degrees in separate residential 
areas throughout the nation, and that it would be virtually 
impossible to keep the public schools o f the country racially 
balanced, even if the Equal Protection Clause did not pro­
hibit such action.

For these reasons, Congress vested in the Commissioner 
o f Education, the Attorney General, and the Federal Courts 
certain responsibilities regarding what it called the desegre­
gation o f public education, but limited the powers o f the 
Commissioner o f Education and the Attorney General, and 
the jurisdiction o f the Federal Courts to keep them within 
constitutional bounds.

Congress was authorized to do these things by the Fifth 
Section o f the Fourteenth Amendment, which expressly em­
powers Congress to “ enforce, by appropriate legislation”  the 
Equal Protection Clause; the First Section o f Article III of 
the Constitution, which authorizes Congress to prescribe the



2 9

jurisdiction o f the inferior courts created by it, Chisholm 
v. Georgia, 2 Dali. (U.S.) 419, 432 (1793); Turner v. Bank 
o f  North America, 4 Dali. (U.S.) 8 (1799);£x Parte Bollman, 
4 Cranch (U.S.) 75, 93 (1807); Cary v. Curtis, 3 How. (U.S.) 
236, 245 (1845); Sheldon v. Still, 8 How. (U.S.) 441 (1850); 
Kline v. Burke Construction Co., 260 U.S. 226, 234(1922); 
Lauf v. E. G. Skinner & Co., 303 U.S. 323, 330 (1938); 
Lockerty v. Phillips, 319 U.S. 182 (1943); and Yakus v. 
United States, 321 U.S. 414 (1944); and the Second Section 
o f Article III o f the Constitution, which vests Congress with 
legal power to regulate the appellate jurisdiction o f the Su­
preme Court, Wiscart v. D ’Auchy, 3 Dali. (U.S.) 321, (1796); 
Durousseau v. United States, 6 Cranch 309 (1810); Barry v. 
Mercein, 5 How. (U.S.) 103, 119 (1847);Daniels v. Railroad 
Co., 3 Wall. (U.S.) 250, 254 (1866); Ex Parte McCardle, 
6 Wall. (U.S.) 318 (1868); The Francis Wright, 105 U.S. 381, 
386 (1882); Kuntz v. Moffitt, 115 U.S. 487, 497 (1885); 
Cross v. Burke, 146 U.S. 82, 86 (1892); Missouri v. Pacific 
Railway Co., 292 U.S. 13, 15 (1934); and Stephan v. United 
States, 319 U.S. 423, 426 (1943).

The conclusion that Title IV o f the Civil Rights Act o f 
1964 is designed to enforce the Supreme Court rulings that 
the Equal Protection Clause forbids a school board, acting 
as a state agency, to deny any child admission to any school 
it operates because o f the child’s race is vindicated by the 
legislative history o f the Act, as well as by its language.

During the course o f the debate on the bill which became 
the Civil Rights Act o f 1964, Senator Byrd o f West Virginia 
addressed this question to Senator Humphrey, the floor man­
ager o f the bill, and received this reply from Senator Humph­
rey:

“ MR. BYRD, o f West Virginia. Can the Senator from 
Minnesota assure the Senator from West Virginia that 
under Title VI school children may not be bused 
from one end o f the community to another end o f



30

the community at the taxpayers’ expense to relieve 
so-called racial imbalance in the schools?” 1

“ MR. HUMPHREY. Id o .” 1 2
Senator Humphrey made these further statements relat­

ing to the purposes o f the bill:
“ MR. HUMPHREY. Mr. President, the Constitution 

declares segregation by law to be unconstitutional, 
but it does not require integration in all situations. 
I believe this point has been made very well in the 
courts, and I understand that other Senators will cite 
the particular cases.

“ I shall quote from the case o f Bell against School 
City o f Gary, Ind., in which the Federal court of 
appeals cited the following language from a special 
three judge district court in Kansas: ‘Desegregation 
does not mean that there must be intermingling of 
the races in all school districts. It means only that 
they may not be prevented from intermingling or 
going to school together because o f race or color.’ 
Brown v. Board o f  Education, D. C. 139 F. Supp. 
468, 470.

“ In Briggs v. Elliott (EDSC), 132 Supp. 776, 111, 
the Court said: ‘The Constitution, in other words,
does not require integration. It merely forbids dis­
crimination.’ In other words, an overt act by law 
which demands segregation is unconstitutional. That 
was the ruling o f the historic Brown case o f 1954.” 3

The language o f the Act discloses this two-fold Congres­
sional intent:

1. To enforce the Supreme Court rulings that the Equal 
Protection Clause prohibits the State from denying to any

1 Senator Byrd was evidently referring to Title IV, instead of Title 
VI.

2Congressional Record, Volume 110, Part 10, Page 12,714, June 4, 
1964.

3Congressional Record, Volume 110, Part 10, Page 13,821, June 15, 
1964.



31

child admission to any school it operates because o f the 
child’s race; and

2. To keep overzealous bureaucrats and federal judges 
from straying beyond constitutional limits in cases involv­
ing the desegregation o f public schools.

Since no action o f his is involved in this case, the amicus 
curiae pretermits discussion o f the provisions o f the Civil 
Rights Act o f 1964 relating to the Commissioner o f Educa­
tion.

In phrasing the Act, Congress uses the terms “ desegrega­
tion”  and “ discrimination”  interchangeably to express the 
concept made familiar by the prevalent use o f the word 
“ discrimination”  to mean state action denying persons admis­
sion to public colleges or public schools because o f their 
race.

This observation is made indisputable by Section 401(b) 
which expressly declares that “ desegregation”  merely means 
“ the assignment o f students to public schools and within 
such schools without regard to their race, color, religion, 
or national origin” ; Section 407(a)(1) and (2) which refer 
to children who “ are being deprived by a school board o f 
the equal protection o f the laws”  and individuals who have 
“ been denied admission” to a public college or permission 
“ to continue at a public college by reasons o f race, color, 
religion, or national origin” ; Section 409 which directs its 
attention to “ discrimination in public education” ; and Sec­
tion 410 which stipulates that “ nothing in this title shall 
prohibit classification and assignment for reasons other than 
race, color, religion, or national origin.

There is not a single syllable in Title IV o f the Civil Rights 
Act of 1964 giving any support to a different interpretation.

Section 401(b) merits further consideration because it 
specifies not only what Congress means by the term “ deseg­
regation” , but also what Congress does not mean by that 
term.



32

Section 401(b) consists o f two clauses. The first clause 
provides that “ desegregation”  as used in Title IV “ means 
the assignment o f students to public schools and within such 
schools without regard to their race, color, religion, or na­
tional origin,”  and the second clause provides that “ desegre­
gation”  as used in Title IV “ shall not mean the assignment 
o f students to public schools in order to overcome racial 
imbalance.”

As a law made by Congress, Title IV is binding on fed­
eral judges, and defines their jurisdiction in respect to public 
schools operated by public school boards acting as state agen­
cies.

The first clause o f Section 401(b) commands school boards 
to ignore race, color, religion, and national origin as factors 
in assigning students to public schools. Since federal judges 
have no power to add anything to the laws they enforce, 
this clause merely confers upon federal judges the limited 
jurisdiction to enforce its command by decrees which prevent 
recalcitrant school boards from denying otherwise eligible 
children admission to schools on account o f their race, color, 
religion, or national origin.

Since federal judges do not have power to subtract any­
thing from laws they enforce, the second clause o f Section 
401(b) denies to federal judges jurisdiction to compel school 
boards to assign “ students to public schools in order to over­
come racial imbalance.”  By this clause, Congress forbids 
federal judges to make decrees compelling school boards to 
take affirmative steps to commingle black and white children 
in public schools in proportions satisfactory to themselves 
to remedy racial imbalances occasioned by de facto residen­
tial segregation or non-discriminatory action on the part of 
school boards.

This interpretation o f Section 401(b) is completely con­
firmed by Section 407, 409, and 410 o f Title IV.

Before the enactment o f Title IV o f the Civil Rights Act 
o f 1964, only the individuals aggrieved thereby had legal



33

standing to make complaint in federal courts concerning 
state-imposed segregation in public education. They were 
restricted to seeking relief for themselves and their children 
and other persons similarly situated. They did not have the 
right to demand that federal courts should substitute fed­
erally coerced integration for state-imposed segregation.

When it drafted Title IV, Congress decided to extend to 
the Attorney General standing to sue for “ such relief as may 
be appropriate”  in behalf o f two groups o f people if he be­
lieves their complaints to be “ meritorious”  and concludes 
that they are “ unable *** to initiate and maintain appro­
priate legal proceedings for”  their own “ relief.”  These groups 
of people are described, in essence, as children who “ are 
being deprived by a school board o f the equal protection 
of the laws”  and individuals who have been “ denied admis­
sion”  to a public college or “ permission to continue in at­
tendance at a public college by reason o f race, color, religion 
or national origin.”  To this end, Congress inserted Section 
Section 407(a) in Title IV.

At the same time, however, Congress decided to preserve 
intact the existing rights o f individuals to sue in their own 
behalf for relief against state-imposed segregation. To ac­
complish this purpose, Congress stipulated in Section 409 
that nothing in Title IV “ shall affect adversely the right o f 
any person to sue for or obtain relief in any court against 
discrimination in public education.”

Congress was determined, however, not to increase the 
powers o f federal judges when it gave the Attorney General 
standing to seek relief against discrimination in public edu­
cation in behalf o f the aggrieved persons designated in Sec­
tion 409(a). Moreover, Congress was equally as determined 
that federal judges should not have jurisdiction to compel 
school boards to deny children admission to their neighbor­
hood schools and transport them hither and yon to achieve 
racial balances in public schools, regardless o f whether the 
racial imbalances sought to be removed to accomplish such 
purpose arise out o f innocent causes or discriminatory action 
on the part o f school boards.



34

Congress made these purposes manifest by inserting in 
Section 409(a) language expressly providing “ that nothing 
herein shall empower any official or court o f the United 
States to issue any order seeking to achieve a racial balance 
in any school by requiring the transportation o f pupils or 
students from one school to another or one school district 
to another in order to achieve such racial balance, or other­
wise enlarge the existing power o f the court to insure com­
pliance with constitutional standards.”

By so doing, Congress deprived all federal courts o f the 
jurisdiction to order public school boards to bus children 
from one school to another or from one school district to 
another to remedy racial imbalances in public schools regard­
less o f whether such imbalances arise out o f innocent causes 
or discriminatory school board action. As appears from the 
cases which the amicus curiae has previously cited, Congress 
had undoubted power to do this under the First Section o f 
Article III o f the Constitution, which empowers it to define 
the jurisdiction o f inferior federal courts, and under the Sec­
ond Section o f Article III o f the Constitution, which ex­
pressly provides that “ the Supreme Court shall have ap­
pellate jurisdiction, both as to law and fact, with such 
exceptions, and under such regulations as the Congress shall 
make.”

It necessarily follows that the District Court violated the 
provisions o f the Civil Rights Act o f 1964 when it ordered 
the Charlotte-Mecklenburg School Board to bus thousands 
o f children from some schools to other schools and from 
some school districts to other school districts to overcome 
racial imbalances in any o f its schools regardless o f the ori­
gin o f  such racial imbalances; and that the Circuit Court 
erred in affirming the provisions o f the District Court order 
relating to the transportation o f senior high school and jun­
ior high school students.

While such statutes apply to the Executive Department of 
the Federal Government only, and for that reason are not 
controlling in this case, it seems not amiss to direct the atten­



35

tion o f the Supreme Court to congressional hostility to the 
busing o f children to achieve racial balancing in public 
schools. Congress manifested its hostility to such action by 
the Elementary and Secondary Education Act o f 1965, as 
amended in 1966, which forbids “ any department, agency, 
officer, or employee o f the United States * * * to require 
the assignment or transportation o f students or teachers in 
order to overcome racial imbalance,”  (P.L. 89-10, Title VllI, 
Section 804; 20 U.S.C. Section 884); the Department o f 
Labor, and Health, Education, and Welfare Appropriation 
Act o f 1969, which provides that “ no part o f the funds 
contained in this Act shall be used to force busing o f stu­
dents * * * in order to overcome racial imbalance as a con­
dition precedent to obtaining Federal funds otherwise avail­
able to any State, school district, or school” , (P.L. 90-557, 
Title IV, Section 410); and the Office o f Education Appro­
priation Act o f 1971, which provides that “ no part o f the 
funds contained in this Act shall be used to force any school 
or school district which is desegregated as that term is de­
fined in Title IV o f the Civil Rights Act o f 1964, Public Law 
88-352, to take any action to force the busing o f students”  
(P.L. 91-380, Title II, Section 210).



36

IV.

A School Board has the Power to Devise and Im­
plement any Non-discriminatory Plan for the As­
signment o f Children to the Public Schools it 
Operates. The District Court not Only Rejected 
a Non-discriminatory Assignment Plan Submitted 
by the Charlotte-Mecklenburg School Board, but 
it Usurped and Exercised the Authority o f the 
School Board in this Respect by Devising a Plan 
o f its Own Which Commands the School Board to 
Deny Thousands o f Children Admission to Their 
Neighborhood Schools, and to bus Them to Other 
Schools to Mix the Races in the Various Schools 
in Numbers or Proportions Satisfactory to the 
District Court. By so Doing, the District Court 
Ordered the School Board to Deny to the Thou­
sands o f Children Affected by its Order Admission 
to Their Neighborhood Schools in Violation o f the 
Equal Protection Clause, and to Bus Them to 
Other Schools or Other School Districts in Viola­
tion o f Section 407(a)(2) o f the Civil Rights Act 
o f 1964. The Circuit Court Concurred in These 
Violations, and Erred Insofar as it Affirmed the 
Order o f the District Court.

A school board, acting as a state agency, has the power 
to assign children to the public schools it operates free from 
interference by the Federal Judiciary as long as it obeys the 
Equal Protection Clause and does not exclude any child from 
any school because o f the child’s race.

When a school board violates the Equal Protection Clause, 
a Federal Court has jurisdiction to order the school board 
to devise and implement a plan sufficient to remedy its dis­
criminatory assignment o f children to its schools, and to 
punish the members o f the school board for contempt o f 
court if they fail to obey the order. Nevertheless, the power 
to devise and implement a plan to remedy the discriminatory 
assignment continues to reside in the school board, and the 
Federal Court is without power to reject a non-discriminatory



37

plan submitted by the school board because such non- 
discriminatory plan will not mix the races in the schools in 
numbers or proportions satisfactory to the Federal Court.

Besides the Federal Court cannot usurp and exercise the 
power o f the School Board to devise a non-discriminatory 
assignment plan because the Federal Court wishes to mix 
the races in the schools in greater numbers or proportions 
than the non-discriminatory plan o f the School Board en­
visages.

The District Court violated all o f these principles when it 
made its order o f February 5, 1970 (819a-839a), its supple­
mental findings o f fact o f March 21, 1970 (1 198a-1220a), 
and its supplemental memorandum o f March 21, 1970 
(1221a-l 238a).

Pursuant to the order which the District Court had en­
tered on December 1, 1969, the Charlotte-Mecklenburg 
School Board submitted to the District Court on February 2, 
1970 its plan for desegregation o f schools (726a-742a). By 
this plan the School Board undertook to restructure its geo­
graphical attendance districts or zones in such a manner as 
to promote the highest degree o f racial integration obtaina­
ble by geographical districting or zoning, and to assign all 
school children, black or white, to the neighborhood schools 
in the district or zone o f their residence, regardless o f race. 
The plan undertook to further augment desegregation by a 
transfer system heavily weighted in favor o f permitting black 
children to transfer from predominantly black schools to 
predominately white schools.

Inasmuch as it treated all children similarly situated ex­
actly alike and did not exclude any child from any school 
on account o f the child’s race, the plan submitted by the 
School Board on February 2, 1970, was in complete har­
mony with the Equal Protection Clause and it was obligatory 
for this reason for the District Court to approve it and permit 
the School Board to implement it.



38

Instead o f doing so, the District Court rejected the non- 
discriminatory plan submitted by the School Board, and 
usurped and exercised the power vested in the School Board 
by adopting a plan o f its own. The District Court accom­
plished this purpose by engrafting upon the plans o f the 
School Board drastic alterations and revisions recommended 
by Dr. Finger, which commanded the School Board to deny 
thousands o f children admission to their neighborhood 
schools, and to bus them long distances from some schools 
to other schools, and from some school districts or zones 
to other school districts or zones.

When all is said, the District Court commanded the School 
Board to take this action to remedy racial imbalances in 
black schools in northwest Charlotte arising out o f de facto 
residential segregation in that area, and to produce racial 
commingling in these schools o f northwest Charlotte and 
other schools in other areas in numbers or proportions 
greater than those envisaged by the plan o f the School 
Board.

The District Court virtually confesses that its order was 
designed to effect these purposes by this recital which ap­
pears in its supplemental findings o f fact o f March 21, 1970:

“ Both Dr. Finger and the school board staff ap­
pear to have agreed, and the court finds as a fact, 
that for the present at least, there is no way to de­
segregate the all-black schools in Northwest Charlotte 
without providing (or continuing to provide) bus or 
other transportation for thousands o f children. All 
plans and all variations of plans considered for this 
purpose lead in one fashion or another to that con­
clusion.”  (1208a)

In addition to usurping and exercising power vested by 
law in the School Board, the District Court order commands 
the School Board to violate rights vested in thousands o f 
school children by the Equal Protection Clause and the Civil 
Rights Act o f 1964.



39

Since the power to assign children to public schools 
belongs to the school board administering such schools, no 
child has the constitutional or legal right in the first instance 
to attend any particular school, but when a school board 
adopts a non-discriminatory system for assigning children to 
neighborhood schools in the attendance district or zone o f 
their residence, children acquire, as against every govern­
mental agency except the school board, the legal right to 
attend the schools to which they have been so assigned. 
This right is additional to their right not to be excluded from 
such schools because o f their race.

By its previous practices and its plan o f February 2, 1970, 
the School Board had assigned thousands o f senior high 
school, junior high school, and elementary school children 
to their neighborhood schools in a wholly non-discriminatory 
fashion.

By its order o f February 5, 1970, the District Court com­
manded the School Board to do two things which clearly 
offend the Equal Protection Clause. In the first place, the 
District Court commanded the School Board to treat differ­
ently children similarly situated by allowing thousands o f 
children to attend their neighborhood schools, and by ex­
cluding thousands o f other children from admission to their 
neighborhood schools; and in the second place, the District 
Court commanded the School Board to bus the thousands 
of children excluded from their neighborhood schools to 
some other schools in other districts or zones to desegregate 
both their neighborhood schools and the other schools in 
numbers or proportions satisfactory to the District Court.

No amount o f sophistry can erase the plain truth that 
the second group o f children were denied admission to their 
neighborhood schools on account o f their race.

Manifestly, the Equal Protection Clause does not confer 
upon any Federal Court jurisdiction to enter a wondrous 
order to compel a school board to obey the Equal Protec­
tion Clause by violating it. Congress apparently realized 
this bizarre result o f busing children from one school to



40

another, or from one school district or zone to another dis­
trict or zone, when it prohibited any officer or Court o f the 
United States to require such action to achieve the racial 
balancing o f schools.

The Circuit Court erred in affirming the order o f the Dis­
trict Court rejecting the plan submitted by the School Board, 
and in affirming, in part, the order o f the District Court 
excluding children from their neighborhood schools and re­
quiring them to be bused to other schools and other school 
districts in other areas.

CONCLUSION

For the reasons stated, the Court should reverse the pro­
visions o f the judgment o f the Circuit Court insofar as they 
relate to the assignment and busing o f senior high school 
and junior high school students; approve the provisions of 
the judgment o f the Circuit Court insofar as they vacate 
the order o f the District Court relating to the assignment 
and busing o f elementary school children; and grant the mo­
tion o f the School Board to stay the order o f the District 
Court reinstating its previous orders relating to the assign­
ment and busing o f elementary school students.

Respectfully submitted,
Sam J. Ervin, Jr.
515 Lenoir Street 
Morganton, North Carolina
Charles R. Jonas 
301 W. Main Street 
Linconton, North Carolina
Ernest F. Hollings 
141 East Bay Street 
Charleston, South Carolina



APPENDIX

Constitutional Provisions Involved

1. The First Section o f the Fourteenth Amendment, which
reads, in pertinent part, as follows: “ nor (shall any
State) deny to any person within its jurisdiction the 
equal protection of the laws.”

2. The Fifth Section of the Fourteenth Amendment, which 
specifies that “ The Congress shall have power to en­
force, by appropriate legislation, the provisions o f this 
Article.”

3. The First Section o f Article III, which states, in perti­
nent part, that “ The judicial Power of the United States, 
shall be vested in one supreme Court, and in such in­
ferior Courts as the Congress may from time to time 
ordain and establish.”

4. The Second Section o f Article III o f the Constitution, 
which reads, in pertinent part, as follows:

“The judicial Power shall extend to all Cases, in 
Law and Equity, arising under this Constitution, the 
Laws o f the United States, and Treaties made, or 
which shall be made, under their Authority; - to all 
Cases affecting Ambassadors, other public Ministers 
and Consuls; - to all Cases o f Admiralty and mari­
time Jurisdiction; - to Controversies to which the 
United States shall be a Party; - to Controversies 
between two or more States; - between a State and 
Citizens o f another State; - between Citizens o f dif­
ferent States; - between Citizens o f the same State 
claiming Lands under Grants o f different States, and 
between a State, or the Citizens thereof, and foreign 
States, Citizens or Subjects.

“ In all Cases affecting Ambassadors, other public 
Ministers and Consuls, and those in which a State 
shall be Party, the supreme Court shall have original 
Jurisdiction. In all the other Cases before mentioned, 
the supreme Court shall have appellate Jurisdiction,



both as to Law and Fact, with such Exceptions, and 
under such Regulations as the Congress shall make.”

Statutory Provisions Involved

1. Title IV o f the Civil Rights Act o f 1964 which ori­
ginally appeared in Title IV o f Public Law 88-352 of 
the 88th Congress and is now codified as 42 USC 
2000c - 2000c-9. This statute reads as follows:

“ Title VI - Desegregation o f Public 
Education Definitions

“ Sec. 401. As used in this title -
“ (a) ‘Commissioner’ means the Commissioner of 

Education.
“ (b) ‘Desegregation’ means the assignment o f stu­

dents to public schools and within such schools with­
out regard to their race, color, religion, or national 
origin, but ‘desegregation’ shall not mean the assign­
ment o f students to public schools in order to over­
come racial imbalance.

“ (c) ‘Public school’ means any elementary or sec­
ondary educational institution, and ‘public college’ 
means any institution o f higher education or any 
technical or vocational school above the secondary 
school level, provided that such public school or 
public college is operated by a State, subdivision of 
a State, or governmental agency within a State, or 
operated wholly or predominantly from or through 
the use o f governmental funds or property, or funds 
or property derived from a governmental source.

“ (d) ‘School board’ means any agency or agen­
cies which administer a system of one or more public 
schools and any other agency which is responsible 
for the assignment o f students to or within such sys­
tem.



Survey and Report o f Educational 
Opportunities

“ Sec. 402. The Commissioner shall conduct a sur­
vey and make a report to the President and the Con­
gress, within two years o f the enactment o f this title, 
concerning the lack o f availability o f equal educa­
tional opportunities for individuals by reason o f race, 
color, religion, or national origin in public educational 
institutions at all levels in the United States, its ter­
ritories and possessions, and the District o f Columbia.

Technical Assistance

“ Sec. 403. The Commissioner is authorized, upon 
the application o f any school board, State, munici­
pality, school district, or other governmental unit 
legally responsible for operating a public school or 
schools, to render technical assistance to such appli­
cant in the preparation, adoption, and implementa­
tion o f plans for the desegregation o f public schools. 
Such technical assistance may, among other activi­
ties, include making available to such agencies infor­
mation regarding effective methods o f coping with 
special educational problems occasioned by desegre­
gation, and making available to such agencies person­
nel o f the Office o f Education or other persons spe­
cially equipped to advise and assist them in coping 
with such problems.

Training Institutes

“ Sec. 404. The Commissioner is authorized to 
arrange, through grants or contracts, with institu­
tions o f higher education for the operation o f short­
term or regular session institutes for special training 
designed to improve the ability o f teachers, supervi­
sors, counselors, and other elementary or secondary 
school personnel to deal effectively with special edu­
cational problems occasioned by desegregation. In­
dividuals who attend such an institute on a full-time 
basis may be paid stipends for the period o f their



A .  4

attendance at such institute in amounts specified by 
the Commissioner in regulations, including allow­
ances for travel to attend such institute.

Grants

“ Sec. 405. (a) The Commissioner is authorized, 
upon application o f a school board, to make grants 
to such board to pay, in whole or in part, the cost 
o f -

“ (1) giving to teachers and other school per­
sonnel in-service training in dealing with problems 
incident to desegregation, and

“ (2) employing specialists to advise in prob­
lems incident to desegregation.
“ (b) In determining whether to make a grant, 

and in fixing the amount thereof and the terms and 
conditions on which it will be made, the Commis­
sioner shall take into consideration the amount avail­
able for grants under this section and the other ap­
plications which are pending before him, the financial 
condition o f the applicant and the other resources 
available to it; the nature, extent, and gravity of its 
problems incident to desegregation; and such other 
factors as he finds relevant.

Payments

“ Sec. 406. Payments pursuant to a grant or con­
tract under this title may be made (after necessary 
adjustments on account o f previously made overpay­
ments or underpayments) in advance or by way of 
reimbursement, and in such installments, as the Com­
missioner may determine.



A. 5

Suits by the Attorney General

“ Sec. 407. (a) Whenever the Attorney General re­
ceives a complaint in writing -

“ (1) signed by a parent or group o f parents to 
the effect that his or their minor children, as mem­
bers o f a class o f persons similarly situated, are 
being deprived by a school board o f the equal pro­
tection o f the laws, or

“ (2) signed by an individual, or his parent, to 
the effect that he has been denied admission to 
or not permitted to continue in attendance at a 
public college by reason o f race, color, religion, 
or national origin, and the Attorney General be­
lieves the complaint is meritorious and certifies 
that the signer or signers o f such complaint are 
unable, in his judgment, to initiate and maintain 
appropriate legal proceedings for relief and that 
the institution o f an action will materially further 
the orderly achievement o f desegregation 'in pub­
lic education, the Attorney General is authorized, 
after giving notice o f such complaint to the ap­
propriate school board or college authority and 
after certifying that he is satisfied that such board 
or authority has had a reasonable time to adjust 
the conditions alleged in such complaint, to in­
stitute for or in the name o f the United States a 
civil action in any appropriate district court o f the 
United States against such parties and for such re­
lief as may be appropriate, and such court shall 
have and shall exercise jurisdiction o f proceedings 
instituted pursuant to this section, provided that 
nothing herein shall empower any official or court 
o f the United States to issue any order seeking to 
achieve a racial balance in any school by requir­
ing the transportation o f 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 o f the 
court to insure compliance with constitutional 
standards. The Attorney General may implead as 
defendants such additional parties as are or be­
come necessary to the grant o f effective relief 
hereunder.



A . 6

“ (b) The Attorney General may deem a person 
or persons unable to initiate and maintain appropriate 
legal proceedings within the meaning o f subsection 
(a) o f this section when such person or persons are 
unable, either directly or through other interested 
persons or organizations, to bear the expense o f the 
litigation or to obtain effective legal representation; 
or whenever he is satisfied that the institution o f such 
litigation would jeopardize the personal safety, em­
ployment, or economic standing o f such person or 
persons, their families, or their property.

“ (c) The term ‘parent’ , as used in this section in­
cludes any person standing in loco parentis. A ‘com­
plaint’ as used in this section is a writing or document 
within the meaning o f section 1001, title 18, United 
States Code.

“ Sec. 408. In any action or proceeding under 
this title the United States shall be liable for costs 
the same as a private person.

“ Sec. 409. Nothing in this title shall affect ad­
versely the right o f any person to sue for or obtain 
relief in any court against discrimination in public 
education.

“ Sec. 410. Nothing in this title shall prohibit clas­
sification and assignment for reasons other than race, 
color, religion, or national origin.



i





No. 281

In  The
Supreme Court of the United States

OCTOBER TERM, 1970

JAMES E. SWANN, ET AL., Petitioners 
v.

CHARLOTTE-MECKLENBURG BOARD OF 
EDUCATION, ET AL., Respondents

On W rit of Certiorari T o T he United States Court 
of A ppeals for the Fourth Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICUS
CURIAE

AND
BRIEF AMICUS CURIAE ON BEHALF OF JACKSON 

CHAMBER OF COMMERCE, INC. and JACKSON 
URBAN LEAGUE

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

WISE, CARTER AND CHILD 
925 Electric Building 
Post Office Box 651 
Jackson, Mississippi 39205
OF COUNSEL





INDEX

P age
MOTION FOR LEAVE TO FILE BRIEF 

AMICUS CURIAE I

BRIEF AMICUS CURIAE 1

Questions Presented 1

Interest of Amicus Curiae .......................................... 1

Argument 2

Conclusion 10

Certificate of Service 11





1 .

No. 281

In  The
Supreme Court of the United States

OCTOBER TERM, 1970

JAMES E. SWANN, ET AL., Petitioners 
v.

CHARLOTTE-MECKLENBURG BOARD OF 
EDUCATION, ET AL., Respondents

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

LEAGUE

NOW COMES Jackson Chamber of Commerce, Inc., a 
non-profit corporation organized and existing under and 
by virtue of the laws of the State of Mississippi, and Jackson 
Urban League, a non-profit corporation organized and 
existing under and by virtue of the laws of the State of 
Mississippi, both having their domicile in Jackson, Hinds 
County, Mississippi, by their attorney, and hereby respect­
fully move for leave to file the attached brief amicus curiae. 
The consent of the attorneys for the petitioners and the 
respondents has not been obtained.

These two entities, being both concerned with the wel­
fare of the community within which they principally operate, 
and being particularly concerned with its economic growth 
and development, find themselves in common accord on one 
matter of particular and vital interest to their community, 
that is —  the continued survival and health of the public



II.

school system in the Jackson, Mississippi, area, and, there­
fore, are deeply concerned with the issues here presented.

The issues here have implications extending far beyond 
the particular situation now before the Court. Accordingly, 
these two entities desire the opportunity to present their 
views on this matter to the Court.

We feel that our contribution should assist the Court 
in setting the problems here presented in a broader context, 
thus ensuring a readier grasp of the grave import its decision 
may have for public school systems throughout the country.

For the foregoing reasons, the movants respectfully 
request that this motion be granted.

Respectfully submitted,

Sherwood W . W ise 
925 Electric Building 
Post Office Box 651 
Jackson, Mississippi 39205

W ise, Carter and Child Attorney for Jackson Chamber of 
925 Electric Building Commerce, Inc. and Jackson Urban
Post Office Box 651 League
Jackson, Mississippi 39205 

OF COUNSEL



No. 281

In  The
Supreme Court of the United States

OCTOBER TERM, 1970

JAMES E. SWANN, ET AL., Petitioners 
v.

CHARLOTTE-MECKLENBURG BOARD 
OF EDUCATION, ET AL., Respondents

ON W RIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF AMICUS CURIAE ON BEHALF OF JACKSON 
CHAMBER OF COMMERCE, INC. AND JACKSON 

URBAN LEAGUE

QUESTIONS PRESENTED

This case presents questions which go to the very heart 
of the survival of the public school systems of this country. 
The questions presented necessarily include the following:

1. Must a school district adopt a plan of integration 
which demonstratively will result in resegregation?

THE INTEREST OF JACKSON CHAMBER OF 
COMMERCE, INC. AND JACKSON URBAN LEAGUE.

The interest of Jackson Chamber of Commerce, Inc. and 
Jackson Urban League, as amicus curiae is set forth on their 
motion for leave to file this brief amicus, to which motion 
this brief is annexed.



2

ARGUMENT

A. PRELIMINARY STATEMENT

These two entities, being both concerned with the wel­
fare of the community within which they principally operate, 
and being particularly concerned with its economic growth 
and development, find themselves in common accord on one 
matter of particular and vital interest to their community, 
that is —  the continued survival and health of the public 
school system in the Jackson, Mississippi area, and have 
agreed to submit to this Honorable Court certain principles 
which they believe if adhered to, would reverse the present 
destructive trends which are taking place not only in the 
Public School System of Jackson, Mississippi, but in all such 
systems in the Nation, and for that reason and in that spirit 
these two entities have come together for the sole purpose of 
presenting to this Honorable Court for its consideration the 
following facts and conclusions.

B. HISTORICAL REVIEW OF COURT DECISIONS

In September of 1969, one year ago, schools of this 
district opened under what was basically a "freedom of 
choice” plan. Enrollment showed 18,227 blacks and 20,966 
whites. Today, one year and three court ordered plans later, 
enrollment is 18,396 black and 12,095 white, —  a 42.4 per 
cent decrease in the number of whites. The first court order 
last fall ordered a desegregation of staff at the beginning of 
the second semester. On appeal by the NAACP Legal De­
fense Fund, counsel for the plaintiff, complete desegrega­
tion of pupils and staff was ordered at the beginning of the 
second semester. The District Judge ordered into effect an 
HEW plan for elementary schools and a plan of his own 
devising for secondary schools. Plaintiffs appealed this order



3

as to the secondary plan only. In May the Fifth Circuit Court 
of Appeals acted on this appeal, ordering into effect an 
HEW plan for secondary schools. Although there had been 
no appeal, the Fifth Circuit ordered the District Court to pre­
pare a new elementary plan and ordered the appointment 
of a Bi-Racial Committee to help devise this plan. The Bi- 
Racial Committee did devise a plan and, after hearings, 
this plan was ordered into effect for September. Plaintiffs 
appealed this order and in their brief made this statement: —  
"the district court’s controlling responsibility is to evaluate 
that plan, not in terms of its educational soundness, but in 
terms of its ability to achieve integration.”

In August, acting on this appeal, the Fifth Circuit 
ordered into effect a plan which basically consisted of the 
pairing and grouping of approximately half the elementary 
schools. The court stated that this was to be temporary and 
the District Court was ordered to hold hearings and to pre­
pare a new elementary plan for the second semester, making 
the fourth disruption in four semesters. The traditional 
six grade structure for elementary schools has been destroyed 
and we now have seven different grade-structured types of 
elementary schools. The traditional 3-3 secondary structure 
has been destroyed in favor of a 2-1-1-2 structure.

Under court plans presently in effect, 95% of the 
children in this district will attend six different schools from 
the first to the twelfth grade. In one extreme case, a small 
group of children will go to seven schools in twelve years. 
Or to look at it another way, it is possible for a family with 
seven children to have them in seven different schools.

Our superintendent, who came to us one year ago from 
a position as Assistant Superintendent in Atlanta, Georgia,



4

resigned a month ago, stating that his training, experience, 
and conscience would not permit him to be responsible for 
a system over which the court would allow him no control 
and one which he felt had been made educationally and 
administratively unsound. This man’s imagination and ded­
ication are demonstrated by the fact that this school sys­
tem was the first in the country to submit a comprehensive 
plan of educational innovation and to receive a grant under 
the 75 million dollar emergency fund appropriated this 
summer. Under state law (dated prior to the Brown deci­
sion) and reinforced by an opinion from the Attorney 
General of Mississippi, the local school board has no au­
thority (even if it had the money) to provide intra-city trans­
portation.

C. RECENT STATISTICS

The following statistics demonstrate forcefully and 
without further argument precisely what is taking place in 
the Public School System of Jackson, Mississippi at the 
present time:

As of September 15, 1969, there were 18,227 black 
students and 20,966 white students in the Public School 
System of Jackson, Mississippi, or a total of 39,193 students 
The percentage ratio at that time was 47% black and 53% 
white.

On September 18, 1970, there were in the said school 
system 18,396 black students and 12,095 white students, or 
a total of 30,491 students. The percentage ratio at that time 
was 60% black students and 40% white students.



5

Thus, it can be seen that with the various court orders 
as set out in the historical review above, withdrawals of 
white students have occurred so that from September 15, 
1969, to September 18, 1970, the number of white students 
attending said school system has dropped from 20,966 to 
12,095, while over the same period the black students in 
said system have increased from 18,227 to 18,396. The per­
centage change over said period of approximately one year 
has been from 47% black students to 60% black students, 
and from 53% white students to 40% white students.

Thus, it is self-evident that from September 15, 1969, 
to September 18, 1970, a serious drift toward resegregation 
has taken place in the Jackson public school system.

D. ECONOMIC IMPACT

A major concern which bears directly on Jackson’s edu­
cation problems is the slowdown which has occurred in the 
city’s economic development. During the past decade the 
increase in manufacturing employment has only been one 
half of what was needed.

A critical problem confronting Jackson’s development 
efforts is the school situation. The present instability is pre­
venting a major manufacturer from locating a badly needed 
large plant in the Jackson area. Neither this company nor 
many of the other firms which might otherwise come to 
Jackson can be expected to move into the area.

Paradoxically, Jackson’s schools need to be strengthened 
before it will be possible to attract many of the companies



6

needed to accelerate the area’s economic growth. The need 
for strengthening the schools was recognized by the School 
Board when they employed Dr. John Martin as superinten­
dent; his capabilities in the curriculum development field 
were a major factor in his selection. And that strengthening 
cannot occur unless economic growth takes place which pro­
duces the revenues required. Nor can many of the social 
problems which confront the families in the lower economic 
brackets be solved unless more economic development takes 
place.

W e come full circle then. The city’s schools cannot be 
strengthened substantially without a doubling of the area’s 
economic growth rate. The desired economic growth can­
not take place without significant improvement in the 
quality of Jackson’s schools. Neither improvement of the 
schools nor the desired economic development can take place 
unless the present instability is eliminated and the basic 
problems involved in the integration of the schools can 
be worked out.

The importance of this impact is not confined to eco­
nomics alone. It is obvious that an adverse economic im­
pact on any community brings with it increased social prob­
lems and burdens. This community at this time is making 
heroic efforts to solve social problems by providing better 
jobs, better housing, and better living conditions for its 
citizens who are in the lower economic echelons. This re­
quires expenditures of capital. Anything, including the situa­
tion we are now concerned with, which adversely affects 
the economics of this community will adversely affect the 
efforts now being made to upgrade the living standards of 
those citizens in this community who are in the lower eco­
nomic brackets.



7

E. CERTAIN PRINCIPLES

We are persuaded that from the experiences of this 
community, as well as the experiences of communities all 
over the Nation, certain basic principles have emerged 
which are worthy of serious consideration.

1.

Prior to the court orders which changed the same, the 
School System of Jackson, Mississippi, operated on what is 
known as 6-3-3 plan. That is, in the district the elementary 
schools consisted of the first six grades, the junior high 
schools consisted of grades seven, eight and nine, and the 
high schools consisted of grades ten, eleven and twelve. 
This system worked well and served the needs of the people 
in the community better than any other system which has 
ever been devised. There were demonstrable educational 
advantages, as the breaks which occurred between the three 
divisions of the system were natural breaks based on age 
and development of the children. There proved to be less 
disruption in the life of the individual child. The possibili­
ties of major transportation problems were reduced. It is 
our firm belief that a return to the 6-3-3 concept is essential.

2.

It is our further conviction that if the integration which 
the courts, by their various decisions and orders have de­
creed, is to be achieved, it must be done in an orderly man­
ner which will accomplish the courts’ purposes without 
totally wrecking the public school system. In order to ac­
complish this, it is necessary that the outflow of whites from 
the public schools be reversed or resegregation is certain to 
result. It is probable that this trend can be reversed and



8

many whites who have fled the public schools will return 
if certain self-evident facts are recognized and are dealt with 
on a realistic basis.

Experience has shown that depending upon location of 
the area involved when the ratio of black pupils to white 
reaches a certain percentage, resegregation has resulted. For 
each community the resegregation point varies, depending 
upon the very nature of the community itself. Such conse­
quences have been experienced in numerous American com­
munities, including Washington, D. C., Philadelphia, 
Pennsylvania, Cleveland, Ohio, and many others. The 
Jackson statistics quoted above confirm the fact that this 
trend is presently being experienced in the Jackson Public 
Schools.

There are many and obvious deleterious by-products 
of this trend. Support of the public schools is being re­
duced. As an example, in November of 1969, a bond issue 
for capital expenditures for public schools in the City of 
Jackson was defeated by both black and white votes. It is 
doubtful if any public school bond issue could pass in this 
area at this time.

Frustration exists in the families of both the black and 
the white communities in the City, and this frustration is 
resulting in further polarization of the races.

Once the trend begins of the flight of whites from the 
public schools, it can normally be expected to accelerate. 
This statement is based on the experience of this community 
and others as set out above. In this community the private



9

schools which now exist, many of which have recently come 
into being, are overloaded and are expanding their facilities.

3.
Should the principles set out above be adhered to, it 

will then become incumbent upon this community to commit 
itself unreservedly to an innovative system of superior pub­
lic education. The time gap which will exist between the 
frustrations and disruptions mentioned above and some 
eventual solution to this problem is all important. Steps 
must be taken immediately which will have the effect of 
compensating educationally for these frustrations and dis­
ruptions during this period.

This community has shown its commitment to these 
principles in the past. This commitment must continue. In 
fact, if the trend which is now taking place is to be re­
versed and the public school system of this area is to be 
saved, this commitment must be strengthened and the edu­
cational processes in the public school system must be en­
hanced at all levels. There are many things which can be 
done immediately and in the future to bring this about. We 
believe that with a reasonable, sensible and workable ap­
proach to the overall problem, this community will respond 
affirmatively in bringing about superior public education 
for its children. It is our firm conviction that this should 
be the primary consideration of all of the courts involved, 
and of all the entities and individuals who are in any wise 
affected by this overall problem.



10

CONCLUSION
We conclude that stability in the schools which will 

permit them to continue to survive can only be achieved if 
the principles set out herein are adhered to.

Respectfully submitted,

For The
JACKSON CHAMBER OF 

COMMERCE, INC.

President

Executive Secretary

For The
JACKSON URBAN LEAGUE

President

Executive Secretary 

Board of Directors

Board of Directors

Sherwood W . W ise, Attorney for 
Jackson Chamber of Commerce, Inc. 
and Jackson Urban League

925 Electric Building 
Post Office Box 651 
Jackson, Mississippi 39205

W ise, Carter and Child 
925 Electric Building 
Post Office Box 651 
Jackson, Mississippi 39205
October 9, 1970



11

CERTIFICATE OF SERVICE
I, Sherwood W. Wise, the attorney for Jackson Cham­

ber of Commerce, Inc. and Jackson Urban League, amicus 
curiae herein, and a member of the Bar of the Supreme Court
of the United States, hereby certify that, on the_________day
of October, 1970, I served copies of the foregoing Motion 
For Leave To File Brief Amicus Curiae and Brief Amicus 
Curiae on the several parties thereto, as follows:

1. On the petitioners, James E. Swann, et al, by mail­
ing three copies in a duly addressed envelope, with 
air mail postage prepaid, to their attorney, James 
Nabrit, III, 10 Columbus Circle, New York, New

York 10019.
2. On the respondent, Charlotte-Mecklenburg Board 

of Education, et al, by mailing three copies in a duly 
addressed envelope, with air mail postage prepaid, 
to their attorneys, William J. Waggoner, Wein­
stein, Waggoner, Sturges & Odom, 1100 Barring 
Office Tower, Charlotte, North Carolina and Ben­
jamin S. Horack, Ervin, Horack & McCartha, 806 
East Trade Street, Charlotte, North Carolina.

3. On the United States of America, amicus curiae, by 
mailing three copies in a duly addressed envelope, 
with air mail postage prepaid, to its attorney, Erwin 
Griswold, Esquire, Solicitor General, Department 
of Justice, Washington, D. C.

It is further certified that all parties required to be 
served have been served.

Sherwood W . W ise
Attorney for Jackson Chamber of Commerce, 
Inc., and Jackson Urban League
925 Electric Building 
Post Office Box 651 
Jackson, Mississippi 39205



■

.





■



1







■
j