Motion for Immediate Desegregation of the Public Schools in Charlotte and Mecklenburg County

     [||9593e918-2315-4f50-8f24-bfd7ff627531||] 4 
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gd 10S 

IN THE 

UNITED STATES DISTRICT COURT 

FOR THE 

WESTERN DISTRICT OF NORTH CAROLINA 

CHARLOTTE DIVISION 

  

JAMES E. SWANN, et al., 

Plaintiffs, 

v. 
: CIVIL ACTION 

CHARLOTTE-MECKLENBURG BOARD 
OF EDUCATION, a public body - 

corporate, et:al,, 

NO. 1974 

Defendants. 
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MOTION FOR IMMEDIATE DESEGREGATION 

OF THE PUBLIC SCHOOLS IN CHARLOTTE 

AND MECKLENBURG COUNTY | 

  
Plaintiffs, by their undersigned counsel, respectfully move the Court 

for an order directing Dr. John A. Finger, Jr. to immediately file with the       Court his plan for the desegregation of schools and to order the defendants | 

to implement Dr. Finger's plan immediately and, as grounds therefor, show | 

the following: 

1. On April 23, June 20 and August 15, 1969, the Court found the 

defendants to be operating an unconstitutionally segregated school system. 

Each Order required the defendants to file a plan for the desegre gation of 

the schools. Each plan was blatantly defective and was rejected by the 

Court. 

2. On December 1, 1969, the Court entered an Opinion and Order 

  
 



  
  

  

rejecting the plan filed by the Board on November 17, 1969 and determined 

that a consultant would be appointed by the Court to prepare immediate 

plans and recommendations to the Court for the desegregation of the schools. 

The following day, December 2, the Court entered an Order appointing Dr. 

John A. Finger, Jr. of Providence, Rhode Island to act as a consultant to 

the Court in preparing a plan for the desegregation of the schools. 

3. Plaintiffs are informed that Dr. Finger has completed the essen- 

tial elements of his plans and is in the process of refining and perfecting 

his proposal. 

4. On October 29, 1969, the Supreme Court unanimously reversed 

the United States Court of Appeals for the Fifth Circuit which had granted 

delays for the desegregation of schools in Mississippi. 

"Under explicit holdingsSof this Court, the obliga- 
tion of.every school district is to terminate dual 

school systems at once and to operate now and 

hereafter only unitary schools. Griffin v. School 

Board, 377 U.S. 218, 234 (1964); Green v. School 

Board of New Kent County, 391 U.S. 430, 438, 

439, 442 (1968). " 

  

    

  

Alexander v. Holmes County Board of Education, 396 U.S. 19 (1969). 
  

9. The day following this Court's Opinion and Order disapproving of 

the defendants' November 17 plan, the United States Court of Appeals for the 

Fourth Circuit entered an Order in five cases, three from North Carolina. 

"We consolidate these appeals for hearing and disposi- 
tion in light of Alexander v. Holmes County Board 

of Education, 396 U.S. 19 (October 29, 1969). 

That recent decision of the Supreme Court teaches 
'[ulnder explicit holdings of this Court the obliga- 

tion of every school district is to eliminate dual 

school systems at once and to operate now and 

hereafter only unitary schools.' The clear mandate 

of the Court is immediacy. Further delays will 

not be tolerated in this circuit. No school district 

may continue to operate a dual system based on race. 

Each must function as a unitary system within which 

no person is to be excluded from any school on the 

basis of race." 

  

  

Nesbit v. Statesville City Board of Education, No. 13,229 ZF. 2d (Dec. 2, 
    1969). The three school districts from North Carolina were given until the 

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end of the Christmas vacation within which to implement plans for complete 

desegregation of the schools. The two districts from Virginia were given 

until the end of the first semester. Each district was required to integrate 

faculties as well. 

"All plans must include provisions for integration 
of the faculty so that the ratio of Negro and white 

faculty members of each school shall be approxi- 

mately the same as the ratio throughout the 
system." 

6. Following the Supreme Court decision in Alexander v. Holmes 
  

County, the United States Court of Appeals for the Fifth Circuit heard and 

decided a large number of cases from various states within the Circuit. 

The Court en banc unanimously decided that complete integration would not 

be required until the Fall of 1970. In several of the cases where the plain~ 

tiffs were represented by private counsel, petitions for certiorari were 

filed with the United States Supreme Court. The petitioners requested that 

the Supreme Court order the school districts to prepare for complete de- 

segregation by February 1, 1970 pending a decision by the Court on the 

merits. The petitioners were granted the sreliminary relief which they 

sought. Cartier v. West Feliciano Parish School Board, U.S. (Dec. 13, 
  

1969); Davis v. Board of School Commissions of Mobile County, a. U, Se : 
  

and Bennett v. Evans County Board of Education, U.S. (Opinions of 
  

Justice Black in Chambers, December 13, 1969). On January 14, 1970, the 
and oral 

Court in a per curiam /decided without/argument that the Court of Appeals 

had misread Alexander v. Holmes County Board of Education. 
  

"Insofar as the Court of Appeals authorized 
deferral of student desegregation beyond 

February 1, 1970, that Court misconstrued 

our holding in Alexander v. Holmes County Board 

of Education, U.S. . Accordingly, the peti- 

tions for writs of certiorari are granted, the 

judgments of the Court of Appeals are reversed 

and the cases remanded to that Court for further 

proceedings consistent with this opinion. The 

judgments in these cases are to issue forthwith." 

  

  

  

Carter v. West Feliciano Parish School Board, U.S. (jan. i4, 1970). 

De 

  

 



  
  

The decision of the Court, representing the views of four members, was con- 

  

curred by Mr. Justice Harlan and Mr. Justice White. They discussed 

what they thought were the practical requirements of Alexander and found 
a 

  

a ""maximum' timetable from/Court finding of non-compliance with the 

requirements of Green to the time of the actual operative effect of the relief 

  

to be eight weeks. Justices Black, Douglas, Brennan and Marshall found 

this view to be a retreat’ from the holding in Alexander v. Holmes County 
  

Board of Education. Justices Berger and Stewart dissented, being of the 
  

  

view that the cases should not be decided without oral argument. 

7. Findings of non-compliance with the requirements of the Green 

  

case were made by the Court on April 23, June 20, August 15 and December 

1, 1969. Eight weeks, the "maximum' timetable which Justices Harlan and 

White viewed as permissible from the date of a finding of non-compliance, 

a determination which four others viewed as a ''retreat' from Alexander, 
  

has long since passed since the decisions of April, June and August. Eight 

weeks from December 1, 1969 would be January 26, 1970. That would 

clearly be the outside date for the implementation of a comprehensive 

plan for the desegregation of schools in this case. 

8. Dr. Finger has not yet filed his plan with the Court. Howeyer, 

even if his plan remains somewhat rough, that plan should be implemented 

now and any suggested modifications, by the Board, by the plaintiffs or 

possibly by Dr. Fingey can be made later. 

"It would suffice that such measures will 
tend to accomplish the goals set forth in 

. Green, and, if they are less than education- 

ally perfect, proposals for amendments may 

thereafter be made. Such proposals for 

amendments are in no way to suspend the 

relief granted in accordance with the re- 
quirements of Alexander." 

  

  

Carter v. West Feliciano Parish School Board, TU. S. (1969) (concurring 
  

opinion of Justice Harlan). 

"The intent of Alexander, as I see it, was 
  

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that the burden in actions of this type 

should be shifted from plaintiffs seeking 
redress for a denial of constitutional 

rights, to defendant school boards. 

What this means is that upon a prima facie 
showing of noncompliance with this 

court's holding in Green v. New Kent 

County School Board, 291 U.S. 430 (1968), 

plaintiffs may apply for immediate relief 

that will at once extirpate any lingering 

vestiges of a constitutionally prohibited 

dual school system." 

  

  

  

(Concurring opinion of Justice Harlan.) 

9. In this Court's Opinion and Order of December 1, 1969, the Court 

held: 

"12. Fixed ratios of pupils in particular 
schools will not be set. If the board in 

one of its three tries had presented a plan 
for desegregation, the court would have 

~ sought ways to approve variations in pupil 

ratios. In default of any such plan from 

the school board, the court will start with 

the thought, originally advanced in the 

order of April 23, that efforts should be 

made to reach a 71-29 ratio in the various 

schools so that there will be no basis for 

contending that one school is racially 
different from the others, but to under- 

stand that variations from that norm may 

be unavoidable. 

15. On the facts in this record and with 
this background of de jure segregation 

extending full fifteen years since Brown I, 

this court is of the opinion that all the 

black and predominantly black schools in 

the system are illegally segregated, Green 

v. New Kent County; Henry v. Clarksdale; 
United States v. Hinds County." 
  

  

In its Order, the Court invited the Board to submit a plan conforming to the 

requirements established by the Court. 

"If the members of the school board wish 
to develop plans of their own for desegre- 

gation of the schools without delaying or 

interfering with the work of the consultant, 

they may proceed to do so, and if they wish, 

any guidance from the court they will find 

their guidance in the previous cpinions 

and orders of this court and in the court 
decisions and principles. set out in this 

opinion and order." 

eR,       
 



    

  

    

* ® | | 
The School Board decided not to appeal from the decision of December 1, 199 

as it had decided not to appeal from the previous orders of the Court. Nor 

has it submitted a plan as it was invited to do. Instead, members of the 

Board have continued to criticize the law of the land and to pretend that they ! 

do not know what the Court means when it says that all-black schools in 

this system are constitutionally RIE The Court and the plain- 

tiffs have waited patiently and in vain for an indication that the Board would 

finally accept its burden to devise a constitutional plan for the desegregation | 

of the schools. Since the Board has refused to assume its responsibility, 

the Court must act to vindicate the constitutional rights of children within 

the School System. 

WHEREFORE, plaintiffs respectfully pray that the Court direct Dr. 

Finger to file his plan forthwith and upon receipt of his plan, order the 

defendants: 

1. To completely implement the plan filed by Dr. 
Finger on or before January 26, 1970; and 

2. To reassign faculty within the School System 
so that the ratio of black and white faculty 
members of each school shall be approximately 

the same as the ratio throughout the System 
and that such reassignments be implemented on 
or before January 26, 1970. 

Respectfully submitted, 

  

CONRAD O. PEARSON 

203 1/2 East Chapel Hill Street 

Durham, North Carolina 

CHAMBERS, STEIN, FERGUSON & 

LANNING 

216 West Tenth Street 

Charlotte, North Carolina 

JACK GREENBERG 

JAMES M. NABRIT, III 

NORMAN CHACHKIN 

10 Columbus Circle 

New York, New York 

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CERTIFICATE OF SERVICE 

  

  

The undersigned hereby certifies that copies of the foregoing Motion 

were served upon counsel for defendants by depositing copies of same in 

the United States Mail, postage prepaid, addressed to: 

William J. Waggoner, Esq. 

Weinstein, Waggoner, Sturges and Odom 

1100 Barringer Office Tower 

Charlotte, North Carolina; 

Brock Barkley, Esq. 

Law Building 

Charlotte, North Carolina; 

Gaston Gage, Esq. 
Law Building 
Charlotte, North Carolina; 

Honorable Robert Morgan, Attorney General 
Andrew Vanore, Jr., Esq., Staff Attorney 

Office of the Attorney General 

State of North Carolina 

Raleigh, North Carolina; and 

Benjamin S. Horack, Esq. 
Ervin, Horack and McCartha 

806 East Trade Street 

Charlotte, North Carolina. 

This I ny of January, 1970, 

£1: Yi 

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Ik ~~ oN St 
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Attorney for Plaintiffs [||9593e918-2315-4f50-8f24-bfd7ff627531||]