Swann v. Charlotte-Mecklenberg Board of Education Motion for Leave to File and Petitioners' Reply Brief

    Nos. 281, 349, 436

In the

dmtrt at tlja Hutted States
October Teem, 1970

James E. Swann, et al.,
Petitioners, Cross-Respondents,

v.
Charlotte-Mecklenburg Boaed of Education, et al.,

Respondents, Cross-Petitioners.

Biedie Mae Davis, et al.,
Petitioners,

Boaed of School Commissionees of Mobile County, et al.,

ON PETITIONS FOR WEITS OF CERTIORARI TO THE UNITED STATES 
COURTS OF APPEALS FOE THE FOURTH AND FIFTH CIRCUITS

MOTION FOR LEAVE TO FILE AND PETITIONERS’ 
REPLY TO BRIEF OF THE UNITED STATES

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

10 Columbus Circle 
New York, New York 10019

J. LeV onne Chambers 
A dam Stein
Chambers, Stein, Ferguson & Lanning 

216 West Tenth Street 
Charlotte, North Carolina 28202

C. O. Pearson
203% East Chapel Hill Street 
Durham, North Carolina 27702

A nthony G. A msterdam
Stanford University Law School 
Stanford, California 94305

V eenon Z. Crawford 
A lgernon J. Cooper 

1407 Davis Avenue 
Mobile, Alabama 36603

Attorneys for Petitioners and 
Cross-Respondents



In the

i>upnmtp (ta rt nf %  llniUb States
October T erm , 1970

J ames E . S w a n n , et al.,

Petitioners, Cross-Respondents,

v.

Charlotte-M ecklenburg B oard of E ducation, et al.,

Respondents, Cross-Petitioners.

B irdie M ae D avis, et al.,

Petitioners,
v.

B oard of S chool Commissioners of M obile County, et al.

ON PETITIONS FOR WRITS OF CERTIORARI TO THE UNITED STATES 
COURTS OF APPEALS FOR THE FOURTH AND FIFTH CIRCUITS

MOTION FOR LEAVE TO FILE REPLY BRIEF

Petitioners respectfully request leave to file the attached 
reply to the brief of the United States. This reply is being 
filed less than three days before the time the case will be 
called for hearing. See Rule 41, Rules of the Supreme 
Court.

The brief of the United States was filed on October 6 
and received by petitioners’ counsel on October 7 and 8.



2

Accordingly, it was not possible to complete this reply and 
have it printed for filing until October 10. Special arrange­
ments are being made to serve counsel who will be arguing 
the case, prior to the arguments.

Respectfully submitted,

Jack Greenberg 
J ames M. N abeit, III 
M ichael D avidson 
N orman J. Ch a ch k in  

10 Columbus Circle 
New York, New York 10019

J. L eV onne Chambers 
A dam S tein
Chambers, S tein , F erguson & L anning  

216 West Tenth Street 
Charlotte, North Carolina 28202

C. 0. P earson
2031/2 East Chapel Hill Street 
Durham, North Carolina 27702

A n th o n y  G. A msterdam
Stanford University Law School 
Stanford, California 94305

V ernon Z. Crawford 
A lgernon J. Cooper 

1407 Davis Avenue 
Mobile, Alabama 36603

Attorneys for Petitioners and 
C ross-Resp ondents



I n  THE

(£mu*t of %  Mnxtib States
October T erm , 1970

James E . S w a n n , et al.,

Petitioners, Cross-Respondents,

v .

Charlotte-M ecklenburg B oard of E ducation, et al.,

Respondents, Cross-Petitioners.

B irdie M ae D avis, et al.,
Petitioners,

v .

B oard of S chool Commissioners of M obile County, et al.

ON petitions for writs of certiorari to the united states 
courts of appeals for the fourth and fifth  circuits

PETITIONERS’ REPLY TO 
BRIEF OF THE UNITED STATES

Several arguments advanced by the United States in its 
brief amicus curiae occasioned this reply.

(1) At p. 17, the Government attributes to petitioners 
the position that the Constitution requires “ the ratio of 
white to black students in each school [to be] . . .  as near 
as possible to the ratio of white to black students in the 
system as a whole.” This is not petitioners’ position. 
Nothing in petitioners’ briefs suggests this position, which



2

the Government elsewhere characterizes as “ racial balance”
(pp. 16, 18-21, 23).

Petitioners’ plan for the desegregation of the Mobile 
public school system in No. 436 does not depend upon a 
theory of “ racial balance.” 1 Nor does Judge McMillan’s 
plan for the desegregation of the Charlotte-Mecklenburg 
public school system in Nos. 281 and 349 depend upon a 
theory of “ racial balance.” 2 “Racial balance” is a whipping- 
boy that respondents and the Government find it convenient 
to belabor. But it has nothing to do with petitioners’ con­
tentions respecting the requirements of the Constitution.

(2) Petitioners’ contentions do not depend upon “ratios.” 
They would permit 50-50 schools to exist, for example, in a 
70-30 school district where residential stability and other 
characteristics of the school population did not threaten 
resegregation, and the history of the school board per­

1 See Brief for Petitioners in No. 436, pp. 63-79.
2 See the Government’s quotation from Judge McMillan’s opinion 

at p. 21. After the Charlotte-Mecklenburg school board had con­
sistently failed to produce an acceptable desegregation plan, Judge 
McMillan was compelled to appoint an expert to devise a plan. 
He was thereby obviously required to instruct the expert concern­
ing the ideal objectives of the plan—something that would not 
have been necessary if the board had developed anything approxi­
mating a satisfactory plan of its own. In this context only, Judge 
McMillan resorted to ideals defined by ratios—but with the clear 
recognition that substantial deviations from the ratios would be 
permitted where other practical and educational considerations 
called for them. And the ultimate plan approved by Judge Mc­
Millan does not in fact involve racial ratios in each school that 
reflect those of the district as a whole.

Judge McMillan expressly noted that his decision does not rest 
on a conclusion that “racial balances” are constitutionally required. 
He said:

“ This court has not ruled, and does not rule, that ‘racial bal­
ance’ is required under the Constitution; nor that all black 
schools in all cities are unlawful; nor that all school boards 
must bus children or violate the Constitution; nor that the 
particular order entered in this case would he correct in other 
circumstances not before the court”  (emphasis in original) 
(Brief Appendix, p. 12).



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formance did not require more exacting demands to guard 
against evasions. What petitioners do urge is simply that 
this Court should announce principles for the ultimate 
form of school desegregation plans which meet two re­
quirements :

First, they fulfill the promise and the constitutional hold­
ing of Brown v. Board of Education, 347 U.S. 483 (1954), 
that no black child is to be assigned to a racially identi­
fiable “black” school such as the all-black and virtually all­
black schools which the Fifth Circuit has permitted to exist 
in Mobile and which the HEW plan would permit to exist 
in Charlotte-Mecklenburg.

Second, they announce this first requirement in terms 
that are sufficiently clear, unmistakable, and decisive so 
that the Court’s opinion in these cases will not spawn 16 
more years of litigation like the 16 years of litigation that 
followed Brown.

(3) The Government’s position fails to meet either re­
quirement. The Government urges that:

An appropriate standard should give proper attention 
to a number of circumstances, such as the size of the 
school district, the number of schools, the relative 
distances between schools, the ease or hardships for 
the school children involved, the educational sound­
ness of the assignment plan, and the resources of the 
school district. (P. 8)

If 16 years of litigation under Brown have demonstrated 
anything, it is that the enunciation of this “ standard” by 
this Court in this year 1970 would be an unmitigated 
disaster. Under this standard, southern desegregation will 
remain an unresolved issue, and litigation of how many 
black children can he penned in all-black schools will still 
be going on, in 1986.



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(4) The only justification that the Government offers 
for this unserviceable standard is the notion of deference 
to “ the traditional neighborhood method of school assign­
ment” (p. 9; see p. 24). But we are talking about desegre­
gating schools that have never had a “traditional neigh­
borhood method of school assignment.” Time out of mind 
prior to Brown, both Mobile and Charlotte-Mecklenburg 
had school assignment systems that took black children 
out of their “neighborhoods” to black schools and white 
children out of their “neighborhoods” to white schools. 
After Brown, both used plans that were not “neighborhood” 
plans.3 Recently, both developed “ neighborhood school” 
schemes whose design and effect were to perpetuate segre­
gation. If the neighborhood school system had any other 
“benefits” (p. 9), they had escaped local notice altogether 
during many years, and now continued to be subordinated 
to the interests of segregation for schools were located, 
their capacities designed, their grades structured, their 
zone lines drawn, and their “neighborhoods” thus shaped 
to achieve continued segregation of the races.

The Government admits that all of this is so as to Mobile 
and Charlotte-Mecklenburg (pp. 12-16), but seem to suggest 
that Mobile and Charlotte-Mecklenburg are aberrations. 
They are not aberrations. I f  one is to go outside these 
records, one will find that no school district which practiced 
the sort of racial discrimination condemned in Broivn had 
a “ traditional neighborhood” school system. They all sent 
blacks to black schools and whites to white schools without 
regard to “neighborhoods”  or geographic proximity. These 
are the school systems that are at issue here.

But we do not think that the Court should go outside 
the record. I f  there are school districts which have truly

3 Indeed, in No. 436, the Mobile School Board adamantly re­
sisted the principle of neighborhood schools. See petitioners’ brief 
in No. 436, p. 29, n. 26.



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had “ traditional neighborhood”  school systems, they lie 
beyond the scope of this Court’s post -Brown experience 
and doubtless differ in so many ways from Mobile and 
Charlotte-Mecklenburg that nothing the Court decides 
herein could affect them. To reason from the supposed 
nature and “benefits” of those systems without a record 
adequately describing them would be perilous enough even 
if such systems were in question. But the only systems 
in question here are those that have traditionally subordi­
nated or shaped neighborhoods to race; and, as to them, 
the Government’s “ traditional neighborhood” school prin­
ciple is manifestly hollow.

(5) The Government’s reasoning from the “neighbor­
hood” school premise is as faulty as the premise. We 
understand it to say that because various devices have been 
used by southern school boards to make the “neighborhood” 
school principle a serviceable tool of segregation—i.e., 
school location, school size manipulations, grade structure 
manipulation, zone line manipulation (pp. 12-16)—these 
same devices, but only these, may be used as “ the focal 
point of a proper remedy . . .  to disestablish the dual 
system and eliminate its vestiges (p. 16; see p. 25). Two 
things are -wrong with this argument as a basis for con­
cluding that “ a system of pupil assignment on the basis 
of contiguous geographic (residence) zones . . .  is consti­
tutionally acceptable in desegregating urban school sys­
tems”  (p. 24).

First, southern school boards—and these school boards— 
have used not merely manipulative practices within con­
tiguous zones but also non-contiguous zones and busing 
to achieve segregation. If the measure of desegregation 
devices is to be determined by those devices previously 
used to segregate, then non-contiguous zones and busing 
are included.



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Second, there is no doctrinal, logical or practical reason 
why the roster of desegregation devices should be mea­
sured by that of segregation devices. So far as we are 
aware, it has never been supposed that the remedial means 
of a court of equity were those used by a malefactor in 
creating the situation that requires remedying.

(6) It is not only, however, the Government’s reasoning 
that troubles us, but the consequences to which it inevitably 
leads:

First, as we have said in paragraph (3), supra, the 
Government’s vague and elastic “ standards to he applied 
in fashioning remedies for state-imposed segregation” 
(p. 8) will unquestionably produce another desolating, 
wasteful and protracted era of school desegregation 
litigation. We had hoped that this Court’s decision in 
Alexander v. Holmes County Board of Education, 396 U.S. 
19 (1969); and Carter v. West Feliciana Parish School 
Board, 396 U.S. 290 (1970), were meant to end that sort of 
thing.

Second, standards of this sort cannot he fairly and uni­
formly administered. In practice, they boil down to the 
disposition of the school hoard, or local district judge, or 
the sitting panel of the court of appeals. Experience in 
the Fifth Circuit in the past year demonstrates the effect 
of standards such as the Government proposes. The Gov­
ernment’s description of the Fifth Circuit jurisprudence 
at pp. 19-20, 25-26, suggests a sort of consistency that the 
cases entirely lack. In the Fifth Circuit, as we have shown 
in petitioners’ brief in No. 436, the degree of desegregation 
ordered varies from panel to panel.

Third, in the last analysis, as the Government admits on 
p. 26, its “ standards” amount to nothing more than a 
promise of judicial review of the “good faith” of school 
officials. Sixteen years of school desegregation litigation



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since Brown teach the delusiveness, the utter futility of 
any such approach to desegregation.

(7) This Court should order that the schools he desegre­
gated by declaring that each black child in Mobile and 
Charlotte-Mecklenburg must he assigned to a school which 
is not a racially identified “black” school. See para. (2), 
supra. Judge McMillan’s order on Nos. 281 and 349 should 
be approved as a practicable plan found effective to achieve 
this result in Charlotte-Mecklenburg; and the judgment of 
the Court of Appeals for the Fifth Circuit in No. 436 
should be reversed.

Respectfully submitted,

J ack Geeenbeeg 
J ames M . N abrit, III 
M ichael D avidson 
N orman J . Ch ach k in  

10 Columbus Circle 
New York, New York 10019

J. L eV onne Chambers 
A dam S tein
Chambers, S tein , F erguson & L anning  

216 West Tenth Street 
Charlotte, North Carolina 28202

C. 0. P earson
203V2 East Chapel Hill Street 
Durham, North Carolina 27702

A nth o n y  G. A msterdam
Stanford University Law School 
Stanford, California 94305

V ernon Z. Crawford 
A lgernon J. Cooper 

1407 Davis Avenue 
Mobile, Alabama 36603

Attorneys for Petitioners and 
Cross-Respondents



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