Swann v. Charlotte-Mecklenberg Board of Education Petition for Writ of Certiorari and Motion to Advance and for Pendente Lite Relief

    I n  th e

CEourt of tljp llmtpfi
October Term, 1969 

No..............

J am es E . S w a n n , et al.,
Petitioners,

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

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR THE 

FOURTH CIRCUIT AND MOTION TO ADVANCE 
AND FOR PENDENTE LITE RELIEF

J ack  G reenberg 
J ames M . N abrit , III 
N orm an  J . C h a c h k in  

10 Columbus Circle 
New York, New York 10019

J. L eV onne  C ham bers 
A dam  S tein

C h am bers , S te in , F erguson & L an n in g  
216 West Tenth Street 
Charlotte, North Carolina 28202

C. 0. P earson

203V2 East Chapel Hill Street 
Durham, North Carolina 27702

Attorneys for Petitioners





I N D E X

PAGE

Opinions Below ..................................................................... 1

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

Questions Presented ...................     3

Constitutional Provisions Involved...................................  4

Statement ..............................................................................  4

1. Introduction ............................................................. 4

2. Proceedings Below ................................................. 5

3. The Charlotte-Mecklenburg County School Sys­
tem in 1968-69 ......................................................... 9

4. The Schools T oday .................      14

5. The Plan Ordered by the District C ourt______ 16

Reasons for Granting the W rit:

Introduction ................................................................... 24

I. This Court School Desegregation Decisions
Support the District Court’s Holding That the 
All-Black and Predominantly Black Schools in 
Charlotte Are Illegally Segregated and Should 
Be Reorganized so That no Predominantly
Black Schools Remain. The Court of Appeals 
Erred in Substituting a Less Specific Desegre­
gation Goal ..........................................................  27

A. The Remedial Goals Set by the Courts 
B elow ................................................................  27



IV

PAGE

Northcross v. Board of Education, 397 U.S. 232

Phillips v. Wearn, 226 N.C. 290, 37 S.E.2d 895 (1946) 32

Raney v. Board of Education, 391 U.S. 443 (1968) .......  6
Rogers v. Hill, 289 U.S. 582 (1933) ...............................  44

Scott v. Spanjer Bros., Inc., 298 F.2d 928 (2nd Cir.
1962) ................................................................................... 42

Shelley v. Kraemer, 334 U.S. 1 (1948) ...........................  32
Swann v. Charlotte-Mecklenburg Board of Education,

243 F. Supp. 667 (W.D. N.C. 1965), affirmed, 369 
F.2d 29 (4th Cir. 1966) ...................................................  1

United States v. Corrick, 298 U.S. 435 (1936) ...............  44
United States v. Greenwood Municipal Separate School

District, 406 F.2d 1086 (5th Cir. 1969) .......................  36
United States v. Indianola Municipal Separate School

District, 410 F.2d 626 (5th Cir. 1969) ...........................  36
United States v. Montgomery County Board of Educa­

tion, 395 U.S. 225 (1969) ...............................................  46
United States v. W. T. Grant, 345 U.S. 629 (1953) .......  44

Vernon v. R. J. Reynolds Realty Co., 226 N.C. 58, 36 
S.E.2d 710 (1946) ........................................................... 32

Statutes:

28 U.S.C. § 47 ....................................................................... 4

28 U.S.C. §1254(1) ............................................................ 3

28 U.S.C. § 1343 .................................................................. 5

42 U.S.C. § 1983 .................................................................. 5



V

Other Authorities:

McCormick, Some Observation Upon the Opinion Eule 
and Expert Testimony, 23 Texas L. Rev. 109 (1945) 42

“ On the Matter of Busing: A Staff Memorandum from 
the Center for Urban Education” , February 1970 .... 52

1969 Report of the Governor’s Study Commission on 
the Public School System of North Carolina ........ . 23

Rule 28, Fed. R. Crim. P., 18 U.S.C.................................  42

Statement of the United States Commission on Civil 
Rights Concerning the “ Statement by the President 
on Elementary and Secondary School Desegrega­
tion” , April 12, 1970 .......... ........................ ... ............. 39, 53

2 Wigmore, Evidence, § 563 ..............................................  42

9 Wigmore, Evidence, § 2484  .......................................... 42

PAGE



In the

Sotprntte QInurt of %  Itutefc Butts
October Term, 1969 

No. ...........

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

C haelotte-M ecklenburg  B oakd oe E ducation , et al.

MOTION TO ADVANCE AND FOR 
PENDENTE LITE RELIEF

Petitioners respectfully move that the Court advance its 
consideration and disposition of this case. It presents 
issues of national importance which require prompt reso­
lution by this Court for the reasons stated in the annexed 
petition for a writ of certiorari. It would be desirable for 
the issues to be decided before the beginning of the next 
school term in September 1970 in order to guide the many 
courts and school boards now making plans for the coming 
year and to reduce somewhat the possible necessity for 
reorganizations of systems after the 1970-71 school term 
is underway.

Wherefore, petitioners pray that the Court:

1. Advance consideration of the petition for writ of 
certiorari and any cross-petition1 or other response thereto

1 On June 8, 1970, the Charlotte-Meeklenburg Board of Educa­
tion voted in a public meeting to file a petition for certiorari 
seeking review of the decision below. We believe the board also 
desires expeditious consideration of its views.



2

during the current term, or if need be during the Court’s 
vacation or such special or extended term as may be con­
venient ;

2. I f  the Court determines to grant the petition for 
certiorari, arrange such procedures as will permit prompt 
decision on the merits as the Court may deem appropriate, 
including either summary disposition without argument2 
or a special term for argument.3 I f the Court decides to 
hear argument, it is suggested that the Court consider the 
case on the original record without printing or alternatively 
to permit reproduction of the appendix record used in 
the court of appeals by other than standard typographic 
means.

Petitioners also seek pendente lite relief pending dis­
position of the petition for certiorari comparable to that 
granted by the Court in Carter v. West Feliciana Parish 
School Board, 396 U.S. 226 (1969), and companion cases, 
namely, an order providing in substance that:

(1) The respondents shall take such preliminary steps 
as may be necessary to prepare for the complete and timely 
implementation of the district court’s order of February 5, 
1970, as amended by the district court, in the event this 
Court should uphold the district court order on the merits; 
and

2 Comparable issues have been decided without the necessity for 
argument in such cases as Bradley v. School Board, 382 U.S. 103 
(1965) • Rogers v. Paul, 382 U.S. 198 (1965); Doivell v. Board of 
Education, 396 U.S. 269 (1969); Carter v. West Feliciana Parish 
School Board, 396 U.S. 290 (1970) ; Northcross v. Board of Educa­
tion, 397 U.S. 232 (1970).

3111 1957 the Court extended its term to hear arguments during 
July. Wilson v. Girard, 354 U.S. 524 (1957). Special terms were 
convened to consider Cooper v. Aaron, 358 U.S. 1 (1958); Rosen-

317°v'sUlit(19i2)ieS> 346 U'S' 273 ' 1933) ’ and Ex P<irtC Quirin’



3

(2) The respondents shall take no steps which are in­
consistent with or will tend to prejudice or delay full im­
plementation of the February 5 order as amended at the 
beginning of the next school term.

Such an order is obviously necessary to avoid the possi­
bility that the passage of time while the case is being 
reviewed here will unnecessarily prejudice the substantive 
rights of petitioners to attend a unitary system “ at once” . 
Alexander v. Holmes County Board of Education, 396 U.S. 
19 (1969).

Respectfully submitted,

J ack  Greenberg 
J ames M. N abrit , III 
N orm an  J . C h a c h k in  

10 Columbus Circle 
New York, New York 10019

J . L eV onne  C ham bers 
A dam  S tein

C h am bers , S te in , F erguson & L a n n in g  
216 West Tenth Street 
Charlotte, North Carolina 28202

C. 0. P earson

203% East Chapel Hill Street 
Durham, North Carolina 27702 

Attorneys for Petitioners



1st the

Supreme (Emtri nf %  Imtefc £>tatpa
October Term, 1969 

No..............

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

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

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

Petitioners pray that a writ of certiorari issue to review 
the judgment of the United States Court of Appeals for 
the Fourth Circuit, entered in the above entitled case on 
May 26, 1970.

Opinions Below

The opinions of the courts below directly preceding this 
petition1 are as follows:

1. Opinion and order of April 23, 1969, reported at 300 
F. Supp. 1358 (Appendix hereto la ).2

1 Earlier proceedings in the same case are reported as Swann v. 
Charlotte-Mecklenburg Board of Education, 243 F. Supp. 667 
(W.D.N.C. 1965), affirmed 369 F.2d 29 (4th Cir. 1966).

2 The appendix of opinions below is printed in a separate volume 
because it is voluminous.



2

2. Order dated June 3, 1969, unreported (40a).

3. Order adding parties, June 3, 1969, unreported 
(44a).

4. Opinion order of June 20, 1969, reported at 300 F. 
Supp. 1381 (46a).

5. Supplemental Findings of Fact, June 24, 1969, 300 
F. Supp. 1386 (57a).

6. Order dated August 15, 1969, reported at 306 F . 
Supp. 1291 (58a).

7. Order dated August 29, 1969, unreported (72a).

8. Order dated October 10, 1969, unreported (75a).

9. Order dated November 7, 1969, reported at 306 F. 
Supp. 1299 (80a).

10. Memorandum Opinion dated November 7, 1969, re­
ported at 306 F. Supp. 1301 (82a).

11. Opinion and Order dated December 1, 1969, reported 
at 306 F. Supp. 1306 (93a).

12. Order dated December 2, 1969, unreported (112a).

13. Order dated February 5, 1970, unreported (113a).

14. Amendment, Correction, or Clarification of Order 
of February 5, 1970, dated March 3, 1970, unreported 
(134a).

15. Court of Appeals Order Granting Stay, dated March 
5, 1970, unreported (135a).

16. Supplementary Findings of Fact dated March 21, 
1970, unreported (136a).

17. Supplemental Memorandum dated March 21, 1970, 
unreported (159a).

18. Order dated March 25, 1970, unreported (177a).



3

19. Further Findings of Fact on Matters raised by 
Motions of Defendants dated April 3, 1970, unre­
ported (181a).

20. The opinions of the Court of Appeals filed May 26, 
1970, not yet reported, are as follows:

a. Opinion for the Court by Judge Butzner (184a).

b. Opinion of Judge Sobeloff (joined by Judge 
Winter) concurring in part and dissenting in 
part (201a).

c. Opinion of Judge Bryan dissenting in part 
(215a).

d. Opinion of Judge Winter (joined by Judge 
Sobeloff) concurring in part and dissenting in 
part (217a).

21. The judgment of the Court of Appeals appears at 
226a.

22. The opinion of a three-judge district court in an 
ancillary proceeding in this case dated April 29, 
1970, not yet reported, appears at 227a.

Jurisdiction

The judgment of the Court of Appeals was entered on 
May 26, 1970 (226a). The jurisdiction of this Court is 
invoked under 28 U.S.C. Section 1254 (1).

Questions Presented

1. Whether the trial judge correctly decided he was 
required to formulate a remedy that would actually in­
tegrate each of the all-black schools in the northwest 
quadrant of Charlotte immediately, where he found that



4

government authorities had created black schools in black 
neighborhoods by promoting school segregation and hous­
ing segregation.

2. Whether, where a district court has made meticulous 
findings that a desegregation plan is practical, feasible and 
comparatively convenient, which are not found to be clearly 
erroneous, and the plan will concededly establish a unitary 
system, and no other acceptable plan has been formulated 
despite lengthy litigation, the Court of Appeals has discre­
tion to set aside the plan on the general ground that it 
imposes an unreasonable burden on the school board.

Constitutional Provisions Involved

This case involves the Equal Protection Clause of the 
Fourteenth Amendment to the Constitution of the United 
States.

Statement
1. Introduction

Petitioners are here seeking review of an en banc3 deci­
sion of the United States Court of Appeals for the Fourth 
Circuit setting aside certain portions of an order of District 
Judge James B. McMillan of the Western District of North 
Carolina which had required the complete desegregation 
of the Charlotte-Mecklenburg County public school system. 
Three members of the court, in a plurality opinion written 
by Judge Butzner, agreed with the lower court that the 
school board had an affirmative duty to employ a variety

3 One judge did not participate. Prior to argument, Judge 
Craven entered an order disqualifying himself. He had sat and 
decided the case as a district judge when it first came to trial in 
1965 (243 F. Supp. 667) and was of the opinion that this previous 
participation barred him from hearing the case as a circuit judge. 
28 U.S.C. § 47.



0

of available methods, including busing, to disestablish its 
dual school system, but thought that the extent of busing 
required by the district court to desegregate the elementary 
schools was unreasonable (184a). Judges Sobeloff and 
Winter viewed Judge McMillan’s decision as appropriate 
and would have affirmed (201a, 217a). Judge Bryan who 
would have reversed the entire order expressed disapproval 
of busing to achieve racial balance which he found the 
order to require for junior and senior high school students 
as well as elementary.

2. Proceedings Below

Black parents and students brought this action in 1965 
to desegregate the consolidated school district of Charlotte 
City and Mecklenburg County, North Carolina pursuant 
to 28 U.S.C. § 1343 and 42 U.S.C. §1983. The North 
Carolina Teachers Association, a black professional or­
ganization intervened seeking desegregation on behalf of 
the black teachers in the school system. This current phase4 * *

4 The case was first tried in the summer of 1965. (243 F. Supp. 
667 (1965)) The plaintiffs challenged an assignment plan where 
initial assignments were made pursuant to geographic zones from 
which students could transfer to schools of their choice. Plaintiffs 
complained that many of the zones were gerrymandered and that 
the zones of ten rural and concededly inferior black schools which 
the board claimed would be abandoned within a year or two over­
lapped white school zones. They also attacked the free transfer 
policy which had resulted in the transfer of every white child ini­
tially assigned to black schools as had the previous minority to 
majority transfer policy. Underlying plaintiffs’ specific grievances 
was their general assertion that the Constitution required the 
school board to take active, affirmative steps to integrate the schools. 
Also under attack was the board’s policy looking to the “ eventual” 
non-racial employment and assignment of teachers.

The district court approved the assignment plan but required 
“ immediate” non-racial faculty practices.

The court of appeals affirmed. (369 F.2d 29 (1966)) The deci­
sion noted that the 10 black schools had in fact been closed. The 
court held, as it did the following year in Bowman v. The School 
Board of Charles City County, 382 F.2d 326 (1967), rav’d sub nom. 
Oreen v. County School Board of New Kent County, 391 TJ.S. 430 
(1968), that the school board had no affirmative duty to disestab­
lish the dual system.



6

of the litigation began in 1968 when the plaintiffs, relying 
upon the Green trilogy,6 again sought the desegregation 
of the schools.

District Judge James B. McMillan first heard testimony 
in March, 1969 and entered his initial opinion the following 
month (300 F. Supp. 1358; la ) judging the school system 
to he illegally segregated and requiring the board to submit 
a plan for desegregation. Extensive proceedings followed 
over the next twelve months.6 He rejected the first plan 
submitted and called for another, found the second plan 
inadequate but accepted it as an interim measure for the 
1969-70 school year, again required a new plan which after 
review was also found unacceptable.7 On December 1, 1969,

5 Green v. County School Board of New Kent County, 391 U.S. 
430 (1968); Monroe v. Board of Commissioners, 391 U.S. 450 
(1968); and Raney v. Board of Education, 391 U.S. 443 (1968).

6 Judge McMillan has provided an excellent summary of the pro­
ceedings in the district court in his Supplemental Memorandum of 
March 21, 1970 (159a).

7 The first plan was rejected on June 20, 1969 (46a). The court 
found that the board had sought from the staff a “minimal” and in­
adequate plan, that the staff produced such a plan and the board 
thereupon eliminated its only effective provisions before submitting 
it to the court.

The second plan was found inadequate on August 15, 1969 (58a) 
but was accepted for the 1969-70 school year only because it prom­
ised some measure of desegregation and the court felt there was 
not sufficient time prior to the opening of the new school term for 
the development and implementation of a more effective plan. The 
failure of the board to accomplish what the plan had promised was 
determined on November 7, 1969 (82a).

The third plan was not a plan at. all, but simply a statement of 
guidelines as to how the board intended to produce a plan. The 
guidelines promised no particular results and were thus rejected 
on December 1, 1970 (93a).

Judge Sobeloff traces this history in an extensive footnote (213a, 
n. 9). He concludes “ [T]he above recital of events demonstrates 
beyond doubt that this Board, through a majority of its members, 
far from making ‘every reasonable effort’ to fulfill its constitutional 
obligation, has resisted and delayed desegregation at every turn.”



7

following the court’s patient but unavailing efforts to secure 
from the board an acceptable desegregation plan, the failure 
of the board to carry out its minimal interim plan for 1969- 
70 which had been “ reluctantly” accepted by the Court in 
August of 1969 and the mandate of Alexander v. Holmes 
County Board of Education, 396 U.S. 19, that schools are 
to be desegregated “ at once” , Judge McMillan decided to 
seek assistance from an outside educational consultant to 
assist him in devising a unitary system (93a). The follow­
ing day the court appointed Dr. John A. Finger, Jr., a 
Professor of Education at Rhode Island College who was 
directed to work with the administrative staff to prepare a 
plan for the court’s consideration (112a). The board was 
invited again to submit another plan (93a).

On January 20, 1970, plaintiffs requested that Dr. Finger 
bring in his plan so that the schools could be desegregated 
“at once” .8 The Finger plan and a fourth board plan were 
filed with the court in early February. Judge McMillan 
held further hearings and entered an order on February 5

8 Plaintiffs’ request followed the controlling decisions in Alex­
ander v. Holmes County Board of Education, 396 U.S. 19 (1969); 
Dowell v. Board of Education of the Oklahoma City Public Schools, 
396 U.S. 269 (1969) ; Carter v. West Feliciana Parish School Board, 
396 U.S. 290 (1970) ;  and Neshit v. StatesviUe City Board of Educa­
tion, 418 F.2d 1040 (4th Cir. 1969).

This was not the first request by plaintiffs for immediate relief. 
In September of 1969 the plaintiffs’ motion for a finding of con­
tempt and for immediate desegregation had led to the court’s find­
ing in November that the board had not accomplished, during the 
1969-70 school year, what it had been ordered to do (80a).

The plaintiffs were required to file a variety of other motions as 
well, such as motions for contempt, objections to patently defective 
plans, motions enjoining school construction, motions to vacate 
state court orders, motions to add new defendants and motions to 
enjoin state officials from interfering with orders of the court. 
Despite these and other efforts in the district court, the court of 
appeals and this Court, the schools are no more desegregated now 
than in September 1968 when this round of litigation commenced.



8

directing the desegregation of the students and teachers 
of the elementary schools by April 1,1970, and of the junior 
and senior high schools by May 4, 1970 (113a).9 The order 
was based upon the plan submitted by the board and Dr. 
Finger.

The school board appealed and sought a stay in the court 
of appeals. On March 5, 1970, the court of appeals stayed 
a portion of the order relating to the elementary schools 
and directed that the district court make additional find­
ings concerning the cost and extent of the busing required 
by the February 5 Order (135a). The plaintiffs applied to 
this Court to have the partial stay rescinded; the appli­
cation was denied.

The district court received additional evidence pursuant 
to the directives of the court of appeals and entered a 
supplemental Memorandum (159a) and Supplemental Find­
ings of Fact (136a) on March 21, 1970.10

9 The order was slightly modified on March 3, 1970 (134a).
10 The supplemental findings were amended in certain respects on 

April 3, 1970, in response to a motion by defendants (181a).
During this period there were also proceedings concerning the 

North Carolina anti-busing law:
“ In June of 1969, pursuant to the hue and cry which had 

been raised about ‘bussing,’ Mecklenburg representatives in the 
General Assembly of North Carolina sought and procured pas­
sage of the so-called ‘anti-bussing’ statute, N.C.G.S. 115-176.1 
[supp. 1969]” (161a).

Plaintiffs were granted leave to file a supplemental complaint in 
July, 1969 and to add the State Board of Education and State 
Superintendent of Public Instruction as defendants to attack the 
statute. At that time the statute did not appear to the court to be 
a barrier to school desegregation (see 58a, 64a).

However, in the spring of 1970, the Governor and other state 
officials directed that no public funds were to be expended for the 
transportation of students pursuant to the district court order of 
February 5 and several state judges issued ex parte orders of 
similar effect acting under color of the state statute. (See 277a, 
229a-230a.) (Continued on p. 9)



9

The opinions and judgment of the court of appeals were 
tiled on May 26, 1970. The court decided by a vote of 4 to 2 
to vacate and remand the judgment of the district court 
for further proceedings. A  majority for the judgment was 
created by the vote of Judge Bryan joining with the three 
members of the court subscribing to the plurality opinion 
written by Judge Butzner, although Judge Bryan dissented 
from the views expressed in the plurality opinion.11

3. The Charlotte-Meeklenburg County School System 
in 1968-69

The plaintiffs presented to the district court detailed 
evidence about the school system, such as the number and 
location of the schools, the grades served, the kinds of 
programs offered, the achievement of the students in the 
different schools, the racial distribution of students and 
faculties in the system, and the changes which had oc­
curred over the years. The plaintiffs also showed by expert

At the plaintiff’s request Judge McMillan added the Governor, 
other state officials and one group of state court plaintiffs as defen­
dants and determined at that point that the constitutionality of the 
state statute was at issue. He therefore requested and the Chief 
Circuit Judge appointed a three-judge court. The court convened 
in Charlotte on March 24 and on April 29, 1970, the court entered 
its decision (227a) declaring unconstitutional the portions of the 
statute prohibiting the assignment of any student “on account of 
race, creed, color or national origin, or for the purpose of creating 
a balance or ratio of race, religion or national origins,” the “ in­
voluntary bussing of students in contravention of [the statute]” 
and the use of “public funds . . .  for any such bussing.” The 
court, however, denied plaintiffs’ prayer for injunctions.

11 The judgment was vacated in its entirety. Judge Butzner’s 
reason for this action was to give greater flexibility to the develop­
ment of a new elementary plan. Judges Winter and Sobeloff thought 
it was improper to invite the reconsideration of the portions of 
the plan already found acceptable. The judgment expressed Judge 
Bryan’s hope that “ upon re-examination the District Court will 
find it unnecessary to contravene the principle stated . . .” in his 
dissent.



10

testimony the rigid racial segregation of the population in 
Charlotte and in Mecklenburg County and its causes.

The court carefully analyzed the voluminous evidence 
before it. Over the course of the litigation below, the dis­
trict court made extensive findings of fact.12 Each succeed­
ing order reflects a comprehensive analysis of new submis­
sions of evidence by the parties and the cumulative evidence 
already before the court. The court of appeals has ac­
cepted the district court’s findings (184a).

Judge McMillan’s first opinion on April 23, 1969, gave 
a detailed description of the school system, the community 
which it serves and the extent of racial segregation within 
the schools (la ). We only summarize here some of the 
salient facts contained in the April opinion.

During the 1968-69 school year, students were assigned 
to the schools under the same plan as approved by the 
district court in 1965—initial assignments by geographic 
zones with freedom of transfer restricted only by school 
capacities.

The Charlotte-Mecklenburg school system serves more 
than 84,000 pupils residing in the city of Charlotte and 
Mecklenburg County. In April, 1969, there were 107 schools, 
including 76 elementary schools (grades 1-6), 20 junior 
high schools (grades 7-9) and 11 senior high schools (grades 
10-12). The system employed approximately 4,000 teachers 
and nearly 2,000 other employees. The racial composition 
of the students in the system was approximately 71% white

12 Signicant findings are contained in eight of the orders leading 
to this appeal: Opinion and Order, April 23, 1969 (la ) ; Opinion 
and Order, June 20,1969 (46a); Order, June 24,1969 (57a); Order, 
August 15, 1969 (58a); Memorandum Opinion, November 7, 1969 
(82a); Opinion and Order, December 1, 1969 (93a) ; Order, Febru­
ary 5, 1970 (113a) ; Supplemental Findings of Fact, March 21, 
1970 (136a); and Further Findings, etc. (181a).



11

and 29% black. The residential patterns of the county were 
sufficiently integrated so that most of the county school 
zones included both black and white students. No all-black 
schools remained in the County. In the City, however, the 
residential areas were and are generally segregated by 
race,13 and most schools were racially identifiable.

The court found that 14,000 of the 24,000 black students 
in the system were attending schools which were at least 
99% black. The court further found that most of the de­
segregated city schools were in transition from a previously 
all-white enrollment to all-black.14 15

The school system had been growing at approximately
3.000 students per year, requiring an on-going school con­
struction program. With few exceptions, the size and place­
ment of the recently constructed schools produced either 
all-white or all-black new schools.16

13 Most of the evidence concerning residential segregation was 
produced at the Mareh 1969 hearings. The April order describes 
the housing patterns and some of the forces which created them. 
The matter was examined again in subsequent orders, particularly 
the Order of November 7, 1969 (82a). The court’s conclusion was 
that housing segregation in Charlotte has been substantially deter­
mined by governmental action.

14 In June, after further analysis of the data, the court concluded 
that approximately 21,000 of the 24,000 black students in the system 
lived within the city of Charlotte and that nearly 17,000 of them 
were attending black or nearly all-black schools. The figure is even 
greater if the black students attending schools which are rapidly 
becoming all-black are included. 11 schools served 5,502 white 
pupils and no black pupils in 1954, served 5,010 pupils of which 
35% were black in 1965 and in 1968 served 5,757 students, 
81% of whom were black. The court also found that nearly
19.000 of the more than 31,000 white elementary students attended 
schools which were nearly all-white. (There are only 150 black 
students attending these schools.) More than one-half of the 14,741 
white junior high school students attend schools with a total 
black population of 193 (50a).

15 The new black schools were generally “walk-in” schools while 
the white schools were placed some distance from the areas which
they serve (141a; 142a).



12

The court found faculties segregated. The great ma­
jority of the 900 black teachers were teaching in black 
schools. There was less than one white teacher per black 
elementary school. The two black high schools had teach­
ing staffs more than 90% black.

The court concluded that the board’s policies of zoning, 
free transfer and its school placement had contributed 
to and continued an unlawfully segregated public school 
system. It also concluded that the faculties had not been 
desegregated as required by the 1965 order. The board 
was directed to produce plans for the active desegregation 
of the pupils and faculties by May 15, 1969.

On appeal, Judge Butzner agreed that the system was 
unlawfully segregated in April of 1969:

“Notwithstanding our 1965 approval of the school 
board’s plan, the district court properly held that the 
board was operating a dual system of schools in the 
light of subsequent decisions of the Supreme C ourt. . . ” 
(184a, 185a-186a).16

The district court further found that the impact of 
segregation on black students in the system had resulted 
in the denial of equal educational opportunities. Compara­
tive test results showed a wide disparity in achievement 
between students attending all-black schools and students 
attending white and integrated schools (58a, 65-a-68a, 93a, 
97a-99a, 136a, 144a-145a).

The court also found that the residential segregation 
was far from benign or de facto. The school board by gerry­
mandering zone lines (53a-54a) and other practices, to­
gether with the activities of other governmental agencies, 
had a significant impact upon the creation of Charlotte’s

16 Both Judges Sobeloff and Winter concurred in this conclusion 
(201a, 217a).



13

ghetto. Again, the three circuit judges subscribing to the 
plurality opinion and Judges Sobeloff and Winter con­
curred in these findings. As Judge Butzner summarized:

The district judge also found that residential pat­
terns leading to segregation in the schools resulted in 
part from federal, state, and local governmental action. 
These findings are supported by the evidence and we 
accept them under familiar principles of appellate re­
view. The district judge pointed out that black resi­
dences are concentrated in the northwest quadrant of 
Charlotte as a result of both public and private action. 
North Carolina courts, in common with many courts 
elsewhere, enforced racial restrictive covenants on real 
property [footnote omitted] until Shelley v. Kraemer, 
334 U.S. 1 (1948) prohibited this discriminatory prac­
tice. Presently the city zoning ordinances differentiate 
between black and white residential areas. Zones for 
black areas permit dense occupancy, while most white 
areas are zoned for restricted land usage.
The district judge also found that urban renewal pro­
jects, supported by heavy federal financing and the 
active participation of local government, contributed 
to the city’s racially segregated housing patterns. The 
school board, for its part, located schools in black 
residential areas and fixed the size of the schools to 
accommodate the needs of immediate neighborhoods. 
Predominantly black schools were the inevitable result 
(186a).17

17 In addition to the activities of the governmental agencies pro­
ducing the discriminatory zoning (13a, 167a) and the urban re­
newal program (13a, 167a) mentioned by Judge Butzner, there was 
substantial evidence showing that long range planning by the City 
Council projects present segregation into the future (167a), that 
public housing officials had overtly discriminated until recent years 
and has reenforced racial segregation by its site selection (167a) 
and that those officials responsible for planning and building streets 
and highways have created racial barriers.



14

4. The Schools Today

During the 1969-70 school year the schools were operated 
under a desegregation plan submitted to the court in July 
1969. The plan provided for the transportation of 4,245 
inner-city black students to outlying white schools. Of these 
children 3,000 were to come from 7 schools which were being 
closed and 1,245 from overcrowded black schools. The plan 
proposed some further faculty desegregation but would 
retain all other racially discriminatory features of the 
school system. The board did propose, however, to study 
its building programs and such measures as altering at­
tendance lines, pairing, clustering and other techniques in 
order to develop a comprehensive desegregation proposal 
for the future.

The plaintiffs objected to the plan on the grounds that 
it left many schools segregated for yet another year and 
placed the full burden of desegregation upon black children.

The court, in an order entered on August 15, 1969 (58a), 
approved the proposed pupil reassignments for the 1969- 
70 school year “ only (1) with great reluctance, (2) as a 
one year temporary arrangement and (3) with the distinct 
reservation that ‘one-way bussing’ plans for the years after
1969- 70 will not be acceptable.” The board was ordered 
to file a third plan by November 17, 1969, “making full 
use of zoning, pairing, grouping, clustering, transportation 
and other techniques . . . having in mind as its goal for
1970- 71 the complete desegregation of the entire system to 
the maximum extent possible.” 18

Upon application of defendants, the court modified the 
August 15 order on August 29 to allow for the reopening

18 The board explicitly refused to follow these directives. Each 
of the next two plans submitted by the board rejected the tech­
niques of “ pairing, grouping [andf clustering” . See n. 20, infra.



15

of a black inner-city school to serve up to 600 inner-city 
children who chose not to be transported to suburban white 
schools (72a).

The plan did not accomplish what was expected. The 
court later found that “ the ‘performance gap’ is wide” 
(84a).

In substance, the plan which was supposed to bring 
4,245 children into a desegregated situation had been 
handled or allowed to dissipate itself in such a way 
that only about one-fourth of the promised transfers 
were made; and as of now [March 21, 1970] only 767 
black children are actually being transported to 
suburban white schools instead of the 4,245 advertised 
when the plan was proposed by the board (164a).

In the November, 1969 Memorandum Opinion the court 
set out in detail the racial characteristics of the school 
system during the 1969-70 school year (82a, 83a-88a). The 
court concluded that there had been no real improvement 
from the segregated situation found during the previous 
school year.

Of the 24,714 Negroes in the schools, something 
above 8,500 are attending “ white” or schools not 
readily identifiable by race. More than 16,000, how­
ever, are obviously still in all-black or predominantly 
black schools. The 9,216 in 100% black situations are 
considerably more than the number of black students 
in Charlotte in 1954 at the time of the first Brown 
decision. The black school problem has not been 
solved.

The schools are still in major part segregated or 
“ dual” rather than desegregated or “unitary.” (86a).

Analyzing the same figures in a later order, the court 
pointed out that “ Nine-tenths of the faculties are still



16

obviously ‘black’ or ‘white.’ Over 45,000 of the 59,000 white 
students still attend schools which are obviously white.” 
(93a, 97a).

The court also determined that the free transfer provi­
sion in the board’s plan negated any progress which the 
July plan might have produced.19 It also found that 
attempts to desegregate the schools by altering attendance 
lines would continue to fail as long as students could 
exercise a freedom of choice (87a-88a).

The court of appeals shared Judge McMillan’s view that 
the system was still segregated during the 1969-70 school 
year (188a).

5. The Plan Ordered by the District Court

In the decision of December 1, 1969, in which the court 
announced than an educational consultant would be ap­
pointed, 19 principles were stated for his guidance (93a, 
103a-108a). Dr. Finger’s instructions included: “ all the 
black and predominantly black schools in the system are 
illegally segregated . . . ” (106a); “ 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, b u t. . . variations from that norm 
may be unavoidable”  (105a); “bus transportation to elim­
inate segregation [and the] results of discrimination may

19 The court had made similar findings in June:
Freedom of transfer increases rather than decreases segrega­
tion. The School Superintendent testified that there would be, 
net, more than 1,200 additional white students going to pre­
dominantly black schools if freedom of transfer were abolished. 
(51a-52a)

Moreover, during the choice period prior to the 1969-70 school 
year, just two white students out of 59,000 elected to transfer to 
black schools and only 330 black students out of 24,000 chose to 
transfer to white schools (Id.)



17

validly be employed” (109a); and “pairing, grouping, 
clustering, and perhaps other methods may and will be 
considered and used if necessary to desegregate the 
schools”  (107a).

Dr. Finger’s work is described in the Supplemental 
Memorandum of March 21, 1970:

Dr. Finger worked with the school board staff mem­
bers over a period of two months. He drafted several 
different plans. When it became apparent that he 
could produce and would produce a plan which would 
meet the requirements outlined in the court’s order 
of December 1,1969, the school staff members prepared 
a school board plan which would be subject to the 
limitations the board had described in its November 
17, 1969 report.20 The result was the production of 
two plans—the board plan and the plan of the con­
sultant, Dr. Finger.

The detailed work on both final plans was done by 
the school board staff. (169a)

Both plans were presented to the court.21 *

a. High Schools—The school staff had developed a plan 
which produced a white majority of at least 64% in each

20 The board’s two most significant limiting factors were: (1) 
Rezoning was the only method to be employed; the board rejected 
such techniques as pairing, grouping and clustering; (2) a school 
sought to be desegregated would be at least 60% white; thus, the 
board’s plan for elementary schools produced some schools between 
57% and 70% white, eight schools 1% to 17% white, two schools 
0% white and no schools between 18% and 58% white (126a-128a).

The court of appeals found as the district court had that these 
limiting factors were improper (197a-198a).

21 Description of the plans are found in several of the decisions 
below. See, Order, February 5, 1970 (113a, 119a-121a) and tables
(123a-133a) ; Supplemental Findings, March 21, 1970 (136a, 146a- 
152a); Supplemental Memorandum, March 21, 1970 (l59a, 169a- 
172a); Opinion of Court of Appeals (184a, 190a-191a).



18

of the ten high schools including the presently all-black 
West Charlotte (see Exhibit B, 123a). The board accom­
plished this result by restructuring attendance lines. Dr. 
Finger’s proposal used the board’s new zones and assigned 
an additional 300 pupils from a black residential area to 
Independence High School which would have had only 23 
black students under the board’s plan. Judge McMillan 
adopted the Finger modification. This portion of the plan 
was approved on appeal. Judge Butzner wrote:

The transportation of 300 high school students from 
the black residential area to suburban Independence 
School will tend to stabilize the system by eliminating 
an almost totally white school in a zone to which other 
whites might move with consequent tipping or re­
segregation of other schools. (195a)

b. Junior High Schools— During the 1969-70 school year 
the board operated 19 junior high schools. Five were all 
or predominantly black; eight were more than 90% white. 
(See Exhibit D, 124a.) The board, by rezoning eliminated 
several of the black schools. One school, however, Pied­
mont, remained 90% black. Additionally, four schools 
would be more than 90% white.22

Dr. Finger devised a plan which would integrate all the 
junior high schools. Twenty of the schools would have 
white populations ranging from 67% to 79% and the re­
maining school would be 91% white. The plan employed 
rezoning and satellite zones.23

22 Two new junior high schools are scheduled to open in the 
1970-71 school year. Both proposed plans contemplate assigning 
students to these new schools. It is significant that under the board 
plan one of the schools would be 100% white and the other 91% 
white (124a).

23 A “satellite zone’’ is an area which is not contiguous with the 
primary zone.



19

The district court approved of the board’s plan except 
as to Piedmont, and gave the board four options: (1) re­
zoning to eliminate the racial identity of the remaining 
black school, (2) two-way transportation of pupils between 
Piedmont and white schools, (3) closing Piedmont, or (4) 
adopting the Finger Plan. The board reluctantly chose to 
employ the Finger Plan.

Judge Butzner found the plans for junior and senior 
high schools by use of satellite zones together with trans­
portation “a reasonable way of eliminating all segregation 
in these schools”  (195a).

c. Elementary Schools—The board in restructuring at­
tendance lines for the 76 elementary schools was unable to 
affect a majority of the students attending racially identi­
fiable schools. As the court of appeals observed, “ Its 
proposal left more than half the black elementary pupils 
in nine schools that remained 86% to 100% black, and 
assigned about half of the white elementary pupils to 
schools that are 86% to 100% white.” (191a; see Exhibit 
H, 126a-128a.)

The Finger Plan also employed rezoning: 27 schools 
were rezoned, and 34 schools were desegregated by group­
ing, pairing and transportation between zones.24 Judge 
McMillan described the plan:

Like the hoard plan, the Finger plan does as much by 
rezoning school attendance lines as can reasonably be 
accomplished. However, unlike the hoard plan, it does 
not stop there. It goes further and desegregates all 
the rest of the elementary schools by the technique of

24 The designated clusters are shown in Exhibit K (132a-133a). 
The zones of ten schools remained substantially unchanged.



20

grouping two or three outlying schools with one black 
inner city school; by transporting black students from 
grades one through four to the outlying white schools; 
and by transporting white students from the fifth and 
sixth grades from the outlying white schools to the 
inner city black school.

The “Finger Plan” itself . . . was prepared by the 
school staff . . . .  It represents the combined thought 
of Dr. Finger and the school administrative staff as 
to a valid method for promptly desegregating the ele­
mentary schools . . .” . (150a-151a)

Under the plan the elementary schools would be from 60% 
to 97% white with most of the schools about 70% white. 
(See Exhibit J, 129a-131a.)

Judge McMillan found the board plan to be inadequate 
and directed that the Finger Plan or some other plan 
which would accomplish similar results be implemented.

The court of appeals agreed that the board plan was un­
acceptable. “ The district court properly disapproved the 
school board’s elementary school proposal because it left 
about one-half of both black and white elementary pupils 
in schools that were nearly completely segregated” (197a). 
The court of appeals, however, decided that the extent of 
transportation required by the Finger Plan was unreason­
able and directed further proceedings for the development 
of another plan.

d. Transportation—The district court’s order required 
additional transportation to be provided. The plurality 
opinion approved of the increments of transportation to 
accomplish the junior and senior high assignments but 
determined that the elementary school busing was excessive.



21

During the 1969-70 school year, the hoard operated 280 
school buses transporting 23,600 of its 84,000 students.26 
Another 5,000 students rode public transportation at a re­
duced fare. The principal’s monthly bus reports show that 
between 10,000 and 11,000 of those riding school buses were 
elementary students. The average annual cost per child 
was about $20.00 or about $472,000.00 out of a total budget 
of about 57 million dollars, almost all of which was reim­
bursed by the state.26 The buses average 1.8 one-way trips 
per day carrying an average of 83.2 students, averaging 
40.8 miles (136a, 138a).27

25 Judge McMillan made detailed and elaborate findings concern­
ing the extent and cost of busing in the Charlotte system, the state 
and the county, in his Supplemental Findings of March 21, 1970 
(135a). (See also Further Findings, etc. of April 3, 1970.) The 
court had examined the transportation system in previous decisions 
as well (la, 22a-23a, 40a, 47a-48a, 113a, 116a-117a).

26 See Further Findings, etc., April 3, 1970 (181a-182a). The 
district court had originally understood the average cost to be about 
$40.00 per pupil (la, 22a-23a, 136a, 138a). The state reimburses 
local school boards for operating expenses for transportation for 
those students who are eligible under state law. The original cost 
of the bus is borne by the local board but the state replaces worn 
out buses (181a-182a).

Pupils eligible for transportation are those children who live 
more than 1% miles from school and who live either in the county 
or in portions of the city which have been annexed since 1957. Ad­
ditionally, the state pays the transportation costs for children who 
live within the pre-1957 city limits who attend schools outside of 
the pre-1957 limits (136a, 141a).

All but a few hundred of the children to be bused under the court 
approved plan would be eligible for transportation at state, rather 
than local expense (155a).

27 The overall figures for the state show a higher percentage of 
students riding buses than in Charlotte. During the 1968-69 school 
year about 55% of all students in North Carolina rode buses to 
school; 70.9% were elementary students. (Elementary students are 
defined by the state for these purposes as students in grades 1 
through 8.)



22

Judge McMillan’s Findings as accepted by the court of 
appeals show the added transportation under the plan 
ordered on February 5 to be:

No. of 
Pupils

No. of 
Buses

Operating
Costs

Senior High 1,500 20 $ 30,000
Junior High 2,500 28 50,000
Elementary 9,300 90 186,000

Total 13,300 138 $266,00028

The initial one-time29 capital outlay for the buses would be 
$745,200.30

The board itself had proposed the busing of 4,200 black 
inner-city children for the 1969-70 school year to outlying 
suburban schools as a desegregation measure (58a, 63a- 
65a). The board’s February 2 plan proposes to bus approxi­
mately 5,000 additional students, about half of whom are 
elementary pupils. A  major portion of this busing is within 
the City (155a, 192a). Moreover, there is nothing novel

28 These are the figures determined by the court of appeals (191a) 
by applying the district court’s Further Findings, etc. of April 3, 
1970 (181a) to its Supplemental Findings of March 21,1970 (136a).

The board had claimed much greater increases in the extent and 
cost of additional busing, but the district court, after carefully 
analyzing the data, found the board’s figures to be exaggerated (see 
“Discount Factors,” 136a, 152a-154a). The court’s findings are also 
consistent with the transportation requirements projected by the 
board for its plan to transport 3,000 Negro children to the suburbs 
for the 1969-70 year. (See Report filed in summer of 1969, Volume 
II, Item 18 of printed Appendix filed in Court of Appeals.)

29 Obsolete buses are replaced by the state. See note 24, supra.
30 The district court observed that there was at least 3 million 

dollars worth of vacant school property which had been abandoned 
pursuant to the 1969-70 desegregation plan (157a) and which, as the 
board had pointed out in its report in the summer of 1969, could be 
disposed of to produce necessary “ desegregation” funds. (See Vol­
ume II, Item 18 of printed Appendix filed in Court of Appeals.)



23

about city children riding school buses. Children living in 
the city but outside of the 1957 city limits are bused. 
Many city boards of education, such as Greensboro, provide 
transportation for city children with local funds. The 
present state superintendent of public instruction, his pre­
decessor and the prestigious 1969 Report of the Governor’s 
Study Commission on the Public School System of North 
Carolina have all recommended that transportation be pro­
vided for children, city as well as rural, on an equal basis 
(136a-140a).

The bus trips required for the paired elementary schools 
would be straight-line non-stop trips (143a), would be 
shorter and would take less time than the average bus 
trip in the system or in the state (137a).

34. . . .
(f) The average one-way bus trip in the system 

today is over 15 miles in length and takes nearly an 
hour and a quarter. The average length of the one­
way trips required under the court approved plan for 
elementary students is less than seven miles, and would 
appear to require not over 35 minutes at the most, 
because no stops will be necessary between schools 
(153a).31

Busing was a technique employed by the board to main­
tain its dual system as recently as 1966 (138a); even today, 
school buses transport white students to outlying white 
schools while Negro students walk to their all-black schools 
(141a, 142a).

31 The court later explained how these figures were developed: 
The average straight line mileage between the elementary 

schools paired or grouped under the “cross-bussing” plan is 
approximately 5% miles. The average bus trip mileage of 
about seven miles which was found in paragraph 34(f) was 
arrived at by the method which J. D. Morgan, the county school 
bus superintendent, testified he uses for such estimates—taking 
straight line mileage and adding 25%. (Emphasis in original; 
153a.)



24

REASONS FOR GRANTING THE WRIT 

Introduction

This case merits review on certiorari because it involves 
important legal questions about implementing Brown v. 
Board of Education, 347 U.S. 483 (1954), and 349 U.S. 294 
(1955), and because it will have important practical con­
sequences with respect to school desegregation. In peti­
tioners’ view the major questions presented are the related 
issues about the proper formulation of specific desegrega­
tion goals and the proper standard for appellate review 
of a decision on the feasibility of a desegregation plan.

In Part I, infra, we submit that on this record the dis­
trict judge was correct in his specific formulation of the 
goal of eliminating each predominantly black and all-black 
school. We believe the court of appeals erred by substi­
tuting a less concrete and complete goal requiring “ all rea­
sonable means to integrate the schools” but that not every 
school “need be integrated.”

The decision below announces a legal rule of great con­
sequence. The court below, by a narrow vote (actually three 
members of the court), has explicitly announced a new rule 
of law to govern all school desegregation cases. The new 
legal principle requires that in each case a court must 
decide whether the goal of complete desegregation of all 
schools is a reasonable goal. Thus we have not merely an 
issue about the reasonableness of methods of desegregation 
but rather an issue about the reasonableness of the goal of 
desegregation whether the court thinks desegregation is 
worthwhile given the circumstances of the district.

As Judge Sobeloff has stated so clearly in dissent, the 
new rule portends serious consequences for the general 
course of school desegregation:



25

. . . Handed a new litigable issue— the so-called rea­
sonableness of a proposed plan— school boards can be 
expected to exploit it to the hilt. The concept is highly 
susceptible to delaying tactics in the courts. Everyone 
can advance a different opinion of what is reasonable. 
Thus, rarely would it be possible to make expeditious 
disposition of a board’s claim that its segregated sys­
tem is not “reasonably” eradicable. Even more per­
nicious, the new-born rule furnishes a powerful incen­
tive to communities to perpetuate and deepen the 
effects of race separation so that, when challenged, 
they can protest that belated remedial action would be 
unduly burdensome.” (212a-213a)

As thus framed, the issue of appropriate goals for de­
segregation plan is one which merits this Court’s expedi­
tious attention. The struggle to implement Brown may 
founder on the new rule that segregation must be ended 
only where it is “reasonable” to end “black” and “white” 
schools. This Court’s decision in Alexander v. Holmes 
County Board of Education, 396 U.S. 19 (1969), may be of 
little effect if a kind of reasonableness test on desegregation 
timing is replaced by a similar test for deciding the goal.

In Part II, infra, we urge that the court of appeals ap­
plied an inappropriate standard for appellate review of 
an equitable remedy in setting aside the district court’s 
elementary school plan as “unreasonable.” Where no equally 
expeditious and effective plan is available, we think it con­
trary to this Court’s decisions for an appeals court to 
strike down an effective plan which has been reliably found 
to be feasible and workable. Moreover, the appellate court’s 
view that the remedy was too onerous was influenced by its 
erroneous determination that it was unnecessary to inte­
grate every school in Charlotte, as discussed in Part I.



26

In addition to these clear legal issues, the case should 
also he reviewed because the ultimate decision in this case 
will have enormous practical impact on the future of public 
school desegregation. The case is singular in a number of 
respects. The decision of the district judge on February 
5, 1970, which has now been set aside in important part, 
immediately assumed national significance and became the 
focus of much public attention because it promised the 
complete desegregation of every school in an urban school 
system. There was this promise of complete desegregation, 
notwithstanding the complexity o f a system with 106 
schools and more than 84,000 pupils, the recalcitrance of 
the locally elected school board, and the concentration of 
most Negro residences in one area where a number of all­
black schools were maintained. Recent years have seen 
considerable school desegregation progress in smaller towns 
and rural areas of the South. This is partly because avail­
able remedies are more obvious in small school systems. 
But most often Negro plaintiffs have been unable to accom­
plish anything more than partial desegregation in urban 
systems.

Judge McMillan’s decision in the Charlotte case finds a 
way to break the pattern and integrate every school in 
North Carolina’s largest school district. The Fourth Cir­
cuit’s decision reversing the plan for elementary school 
desegregation blots out the rays of hope that complete 
school desegregation will be accomplished in urban schools. 
The result on this appeal clearly signals to every district 
judge and school board that a cautious “go-slow” approach 
to using busing to eliminate all-black schools is in order. 
Judge McMillan’s decisions signaled that substantial de­
segregation can be accomplished; the reversal signals that 
it will not be accomplished. So the result of the case has 
assumed transcending importance. What the Fourth Cir­
cuit did speaks as loudly as what it said. What the court



27

did, of course, was overturn one of the first desegregation 
orders that ever required complete urban school desegrega­
tion in the circuit.

We hasten to add, particularly in view o f our request 
for expedition and our suggestion that summary disposi­
tion might he appropriate, that the case may well he con­
trolled by settled decisions. Although the opinion below 
raises the new legal issues we have discussed, they need 
not necessarily be decided in the terms in which the court 
of appeals posed the issues. Given the findings of the 
district judge, which are not clearly erroneous, the deseg­
regation plan for Charlotte may be ordered implemented 
in September without breaking any new legal ground. The 
district court’s decision is supported by a complete record 
proving that the existing school system is unconstitutional 
and that a feasible remedy is at hand. The meticulous 
and painstaking decisions of the district court are ample 
support for a decision that the plan should be implemented 
as scheduled.

I.

This Court’s School Desegregation Decisions Support 
the District Court’s Holding That the All-Black and Pre­
dominantly Black Schools in Charlotte Are Illegally 
Segregated and Should Be Reorganized So That No 
Predominantly Black Schools Remain. The Court of 
Appeals Erred in Substituting a Less Specific Desegre­
gation Goal.

A. T h e R em edial Goals Set b y  the Courts Below .

This case involves whether it was proper, on the record 
and findings made, for the district judge to require that 
the racially segregated dual system in Charlotte-Mecklen- 
burg be thoroughly reorganized so that each of 25 remain-



28

ing all-black or predominantly black schools in the system 
will be integrated. Understanding of the issue is aided if 
we analyze the particular facts of the Charlotte case as 
well as the general legal principles which apply in school 
segregation cases.

On December 1, 1969, nearly five years after this suit 
was filed by Negro plaintiffs seeking desegregation, Dis­
trict Judge McMillan held that:

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 . . . (106a).

Thereafter, on February 5, 1950, when a concrete plan had 
been designed by the court’s expert consultant after work­
ing for two months with the local school superintendent 
and his staff, it was apparent to Judge McMillan that there 
was a feasible way to eliminate the black schools he had 
found to be illegal. He thus ordered that “no school be 
operated with an all-black or predominantly black student 
body” (116a), and the plan was ordered under -which the 
percentage of black students would vary in individual 
schools from a high of 41% black to a low of 3% black 
(156a). Thus the district court first found the black schools 
illegal, and then found that their continuation was need­
less and that there was an available remedy for the uncon­
stitutional situation.

This seemingly straight-forward sequence of events has 
been nullified and the mandate of the appeals court now 
requires that desegregation planning for Charlotte’s 76 
elementary schools begin anew. Petitioners believe that the 
court of appeals has not stated the goal of desegregation 
planning in suitably specific terms to satisfy the consti-



29

tutional requirement and that the district court’s formula­
tion was proper, at least for the Charlotte-Mecklenburg 
system.

The court of appeals ruling, in the practical context of 
the case, requires that some indefinite number of ele­
mentary pupils will remain in predominantly black and 
perhaps all-black schools. The opinion for three members 
of the court, by Judge Butzner, states that “not every 
school in a unitary system need he integrated” and that 
while boards “ must use all reasonable means to integrate 
the schools” sometimes “black residential areas are so large 
that not all schools can be integrated by using reasonable 
means” (189a). This view acknowledges that the black 
schools are the product of illegal segregation practices, but 
suggests that the problem is essentially intractable and that 
there is in effect a wrong without a remedy. The wrong is 
not remedied if you discount as we do, the three alterna­
tives to integrating the black schools mentioned by Judge 
Butzner, e.g., providing an integrated school for each child 
in later years, relying on the black pupils’ use of a free 
transfer right to leave the black schools, and establishing 
special integrated programs at the all-black schools. None 
of these suggestions represents a complete substitute for 
the constitutional right to attend school in a system where 
racial identification of the schools has been removed and 
there are “ just schools.”  Green v. County School Board of 
New Kent County, 391 U.S. 430, 442 (1958). The first 
method merely postpones the right and does not grant it 
“ now and hereafter” (Alexander v. Holmes County Board 
of Education, 396 U.S. 19 (1969)). The second method— 
free transfers for blacks—has proven illusory and only a 
partial answer in Charlotte-Mecklenburg. Green, supra, and 
Monroe v. Board of Commissioners, 391 U.S. 450 (1958). 
The third method by its own terms is limited to periph­
eral activities not central to the daily classroom experience



30

of grade school children, and fails to remove the racial 
identifiability of the schools.

We believe that Judge McMillan was correct, and that 
the court below was in error, in defining an appropriate 
specific desegregation goal for Charlotte. Judge McMillan’s 
findings and conclusions that the all black schools and 
predominantly black schools in Charlotte-Mecklenburg are 
unconstitutionally segregated were accepted by all mem­
bers of the court below except Judge Bryan, who wrote a 
separate dissenting opinion. Fortunately, this case contains 
an unusually detailed and extensive factual record, and 
meticulous findings which explain how racial segregation 
was created in the Charlotte system. The detailed record 
showing how the dual system was created makes the case 
an appropriate one to consider the important questions 
relating to remedial measures. We set out in detail in the 
next subsection the findings about the causes o f school seg­
regation, the related findings about the governmental re­
sponsibility for housing segregation in Charlotte, and the 
particular findings about the effects of the denial of equal 
educational opportunity on black children in this locality. 
In a succeeding subsection we discuss the governing legal 
principles which support Judge McMillan’s statement of 
the desegregation goal.

B. T h e D im en sion s, Causes, and Results o f  the Dual S ystem  
in Charlotte— T h e Nature o f  the Constitutional V iolation.

Judge McMillan found that governmental authorities had 
created black schools in black neighborhoods in Charlotte 
by promoting school segregation and housing segregation. 
The board “gerrymandered” or manipulated school atten­
dance areas to promote segregation, selected sites and the 
sizes of schools to promote segregation, and used the school 
transportation system to promote segregation. The court



31

found that the extensive residential segregation which con­
centrated 95% of the city’s Negroes in Northwest Charlotte 
was promoted by public authorities, including school prac­
tices and those of other government agencies.

Judge McMillan summarized the results by noting that 
although the slightly more than 24,000 Negroes in the sys­
tem were but 29% of the total school population, more than 
16,000 Negroes were in 25 all-black or predominantly black 
schools, including more than 9,000 in 11 100% black schools 
(165a). He concluded that: “The 9,216 in 100% black situ­
ations are considerably more than the number of black 
students in Chax-lotte in 1954 at the time of the first Brown 
decision. The black school problem has not been solved” 
(166a). At the same time, more than two-thirds of the 
white pupils (45,012 out of a total of 59,828) were in 57 
schools readily identifiable as white schools (165a). Less 
than one-fifth of the pupils in the system attended 24 
schools not readily identifiable by race (165a-166a).

Judge McMillan summarized the findings about how this 
extensive segregation came about in these words:

The black schools are for the most part in black resi­
dential areas. However, that does not make their 
segregation constitutionally benign. In previous opin­
ions the facts repecting their locations, their controlled 
size and their population have already been found. 
Briefly summarized, these facts are that the present 
location of white schools in white areas and of black 
schools in black areas is the result of a varied group 
of elements of public and private action, all deriving 
their basic strength originally from public law or state 
or local governmental action. These elements include 
among others the legal separation of the races in 
schools, school busses, public accommodations and 
housing; racial restrictions in deeds to land; zoning



32

ordinances; city planning; urban renewal; location of 
public low rent housing; and the actions o f the present 
School Board and others, before and since 1954, in 
locating and controlling the capacity of schools so 
that there would usually be black schools handy to 
black neighborhoods and white schools for white neigh­
borhoods. There is so much state action embedded in 
and shaping these events that the resulting segregation 
is not innocent or ‘de facto’ and the resulting schools 
are not ‘unitary’ or desegregated (166a-167a).

The Fourth Circuit accepted these conclusions (186a- 
187a), and also pointed out as one aspect of this, that North 
Carolina Courts had enforced racial restrictive covenants 
on property prior to Shelley v. Kraemer, 334 U.S. 1. See 
e.g. Phillips v. Wearn, 226 N.C. 290, 37 S. E. 2d 895 (1946) 
(involving property in Mecklenburg); Eason v. Buff aloe, 
198 N.C. 520, 142 S.E. 496 (1930); Vernon v. R. J. Reynolds 
Realty Co., 226 N.C. 58 36 S. E. 2d 710 (1946). These racial 
restrictive covenants enforced by injunctions and damage 
suits were the functional and practical equivalent of res­
idential segregation laws and ordinances.32

Nor was the decision below unique in recognizing the inter­
relationship between school segregation and state respon­
sibility for residential segregation. See Holland v. Board 
of Public Instruction of Palm. Beach County, 258 F. 2d 730, 
732 (5th Cir. 1958); Dowell v. Board of Education, 244 F.

32 Shelley was argued in this Court on this basis (by the Solicitor 
General among others) as Mr. Justice Black has described:

This type of agreement constituted a restraint on alienation 
of property, sometimes in perpetuity, which, if valid, was in 
reality the equivalent of and had the effect of state and munic­
ipal zoning laws accomplishing the same kind of racial dis­
crimination as if the State had passed a statute instead of 
leaving this objective to be accomplished by a system of private 
contracts. (Bell v. Maryland, 378 U.S. 226, 329 (1964), Mr. 
Justice Black, dissenting.)



33

Supp. 971, 975-977 (W.D. Okla. 1965), affirmed 375 F. 2d 
158 (10th Cir. 1967), cert, denied 387 U.S. 931 (1967), both 
involving residential segregation ordinances. Cf. Brewer v. 
School Board of the City of Norfolk, 397 F. 2d 37, 41-42 
(4th Cir. 1968).

Judge McMillan also made explicit findings based upon 
his examination of the local system about the harm that 
segregation was inflicting upon black children. Judge Mc­
Millan found “that segregation in Mecklenburg County 
has produced its inevitable results in the retarded educa­
tional achievement and capacity of segregated school chil­
dren.” (66a-67a). Sixth grade students in black schools 
were on the average achieving at a fourth grade level, 
whereas there were substantially higher levels in integrated 
and white schools. (20a; 67a; 97a-99a). The District Judge 
wrote that:

“ This alarming contrast in performance is obviously 
not known to school patrons generally.

It was not fully known to the court before he studied
the evidence in the case.

It can not be explained solely in terms of cultural, 
racial or family background without honestly facing 
the impact of segregation.

The degree to which this contrast pervades all levels 
of academic activity and accomplishment in segregated 
schools is relentlessly demonstrated.

Segregation produces inferior education, and it 
makes little difference whether the school is hot and 
decrepit or modern and air-conditioned.

It is painfully apparent that “quality education” can 
not live in a segregated school; segregation itself is 
the greatest harrier to quality education.

As hopeful relief against this grim picture is the un­
contradicted testimony of the three or four experts 
who testified, some for each side, and the very interest-



34

ing experience of the administrators of the schools of 
Buffalo, New York. The experts and administrators 
all agreed that transferring underprivileged black chil­
dren from black schools into schools with 70% or more 
white students produced a dramatic improvement in 
the rate of progress and an increase in the absolute 
performance of the less advanced students, without 
material detriment to the whites. There was no con­
trary evidence. (In this system 71% of the students 
are white and 29% are black.) (67a-68a)

Legally, of course, the case does not depend on any such 
local findings of harm. “ The right of a student not to be 
segregated on racial grounds in schools so maintained is 
indeed so fundamental and pervasive that it is embraced in 
the concept of due process of law.” Cooper v. Aaron, 358 
U.S. 1, 19 (1958). But it is well to remember that the 
segregation system condemned by Brown is a massive in­
tentional disadvantaging of the Negro minority by the 
white majority. See Black, “ The Lawfulness of the Segrega­
tion Decisions,” 69 Yale L. J. 421 (1960). That disad­
vantage is not dissipated so long as the dual system is in­
tact. The district judge perceived that its elimination is 
an urgent task.

C. T h e D ecision B elow  Conflicts W ith  A pplicable D ecisions o f  
This Court.

The district court’s decision that each o f the predomi­
nantly black and all-black schools in Charlotte-Mecklenburg 
must be reorganized on an integrated basis is in conformity 
with this Court’s decisions defining the nature of the duty 
to desegregate public schools which was first declared six­
teen years ago in Brown v. Board of Education, 347 U.S. 
483 (1954). Brown II spoke of the need “to achieve a 
system of determining admission to the public schools on



35

a nonracial basis.” Brown v. Board of Education, 349 U.S. 
294, 300-301 (1955). In Cooper v. Aaron, 358 U.S. 1, 7 
(1958), the Court wrote of the duty of “ initiating deseg­
regation and bring about the elimination of racial discrim­
ination in the public school system.” Green v. County 
School Board of New Kent County, 391 U.S. 430 (1968), 
made it clear that Brown requires more than nondiscrimi- 
natory admission of Negroes to “white” schools. Green 
held that Brown was addressed to the whole system of 
segregation in which “ racial identification of . . . schools 
was complete, extending not just to the composition of 
student bodies . . . but to every facet of school operations 
. . (391 U.S. at 435). Under Green these dual systems
must be abolished; the task is the “ dismantling of Avell- 
entrenched dual systems”  (391 U.S. at 437), and “ disestab­
lishing state-imposed segregation” {id. at 439). The Green 
decision states that a “unitary, non-racial system of public 
education was and is the ultimate end to be brought about” 
{id. at 436), that discrimination must be eliminated “ root 
and branch” {id. at 438), and that the Constitution re­
quired “ abolition of the system of segregation and its 
effects” {id. at 440). The courts are to render decrees 
“which will so far as possible eliminate the discriminatory 
effects of the past as well as bar like discrimination in the 
future” {id. at 438, note 4). The courts are to “ retain juris­
diction until it is clear that state-imposed segregation has 
been completely removed” {id. at 439). A call for the 
complete abolition of racially identifiable schools is sounded 
by the command that the plan “promise realistically to 
convert promptly to a system without a ‘white’ school and 
a ‘Negro’ school, but just schools” {id. at 442).

Judge McMillan addressed himself to the most obvious 
remaining characteristic of the dual system in Charlotte— 
the 25 black schools which serve the bulk of the black 
population. By the time Judge McMillan wrote his opinion



36

on December 1, 1969, the school board bad failed despite 
three orders to present a plan which eliminated the black 
schools. Judge McMillan perceived that school segregation 
could not be justified or excused on the basis of segregated 
neighborhood patterns where the state itself was respon­
sible for Fourteenth Amendment purposes for the housing 
segregation as well as the school segregation.33 Thus he 
faced the practical problem of formulating specific instruc­
tions and criteria for the men preparing a desegregation 
plan. He believed that the concern was “primarily not with 
the techniques of assigning students or controlling school 
populations, but with whether those techniques get rid of 
segregation of children in public schools. The test is prag­
matic, not theoretical” (61a). In order to guide his court 
appointed consultant in preparing a plan, Judge McMillan 
stated simple legal guidelines and criteria. They are in the 
spirit of Green and are entirely unexceptionable:

2. Drawing school zone lines, like “ freedom of trans­
fer,” is not an end in itself; and a plan of geographic 
zoning which perpetuates discriminatory segregation 
is unlawful . . . [citations omitted].

#  *  #

12. Fixed ratios of pupils in particular schools will 
not be set. I f the board in one of its three tries had

33 Dowell v. Board of Education, 244 F. Supp. 971, 975-977 (W.D. 
Okla. 1965), affirmed, 375 F.2d 158 (10th Cir. 1967), cert, denied, 
387 U.S. 931 (1967) ; Holland v. Board of Public Instruction of 
Palm Beach County, 258 F.2d 730, 732 (4th Cir. 1968). Geographic 
zoning plans are acceptable only if they tend “to disestablish rather 
than reinforce the dual system of segregated schools.” United 
States v. Greenwood Municipal Separate School District, 406 F.2d 
1086,1093 (5th Cir. 1969) ; Henry v. Clarksdale Municipal Separate 
School Dist., 409 F.2d 682 (5th Cir. 1969); United States v. In- 
dianola Municipal Separate School District, 410 F.2d 626 (5th Cir. 
1969); Keyes v. School District Number One, Denver, 303 F. Supp 
279 and 289 (D. Colo. 1969), stay vacated, 396 U.S. 1215 (1969) 
(Justice Brennan in Chambers). And see this Court’s decision in 
Northcross v. Board of Education of Memphis, 397 U.S. 232 (1970).



37

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 hoard, 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 understand 
that variations from that norm may be unavoidable.

#  #  *

14. Where pupils live must not control where they 
are assigned to school, if some other approach is neces­
sary in order to eliminate racial segregation . . . [cita­
tions omitted],

15. On the facts in this record and with this back­
ground 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 . . . [citations omitted].

*  *  *

17. Pairing of grades has been expressly approved 
by the appellate courts . . . [citations omitted]. Pair­
ing, grouping, clustering, and perhaps other methods 
may and Avill be considered and used if necessary to 
desegregate the schools.

18. Some 25,000 out of 84,000 children in this coun­
ty ride school busses each day, and the number eligible 
for transportation under present rules may be more 
than 30,000. A transportation system already this mas­
sive may be adaptable to effective use in desegregating 
schools.

The court of appeals decision that some indefinite num­
ber of black schools may remain conflicts with Green. There



38

is no warrant in Green for anything less than complete 
dismantling of the dual system. The holding that racial 
identifiahility of schools need not be redressed threatens, as 
Judge Sobeloff has suggested, to water down or temper 
the duty to convert to a unitary system (203a). The con­
clusion that the board need accomplish only so much de­
segregation as seems “ reasonable” poses a fundamental 
threat to the principle of Brown I. As Judge Sobeloff 
wrote, dissenting, “ the conclusion of the majority that, all 
things considered, desegregation of this school system is 
not worth the price” is a “conclusion neither we nor school 
boards are permitted to make” (210a).

The district court had power under the Green decision to 
require much more than a minimal sort of plan. The court 
was not bound to accept school board proposals designed 
to search out the gray area between a dual system and a 
unitary system to satisfy minimum desegregation require­
ments. On the contrary, the court wTas empowered to strike 
at the roots as well as the branches of the segregated sys­
tem. The court was empowered to root out segregation so 
thoroughly that it is unlikely to occur again. The opinion 
below in part recognizes this by approving the trial judge’s 
efforts to prevent re-segregation of desegregated schools 
at the high school level.34 But the essential thrust of the 
decision conflicts with this idea. It seems clear that the 
opinion approves the continuation of some majority black 
schools. But experience in Charlotte has demonstrated the 
difficulty of maintaining stable desegregation in majority 
black schools. Frequently such schools fast become all­
black as neighborhood patterns change in an oft-repeated 
pattern of white flight from Negro neighborhoods and

34 The court below approved the trial judge’s effort “ to stabilize 
the system by eliminating au almost totally white school in a zone 
to which other whites might move with consequent ‘tipping’ or 
resegregation of other schools” (195a).



39

schools. Judge McMillan’s plan was designed to cope with 
this problem by eliminating all racially identifiable schools 
so that this factor Avould no longer play a part in the 
community.

The court of appeals’ goal of obtaining as much integra­
tion as is “ reasonable”  in the jurisdiction must leave every 
board or court which seeks to apply the formula essen­
tially at sea. The standard of reasonableness was adopted, 
says the court, because “ some cities . . . have black ghettos 
so large that integration of every school is an improbable, 
if not unattainable, goal.” But, of course, the Finger plan 
demonstrates that this goal is not unattainable in Char- 
lotte-Mecklenburg. And Charlotte-Mecklenburg, the largest 
school system in North Carolina, is fairly representative 
of the desegregation problem in the cities of the Fourth 
Circuit. The United States Commission on Civil Rights 
had recently made the same point:

It is a mistake to think of the problems of deseg­
regation and the extent that busing is required to 
facilitate it solely in the context of the Nation’s rela­
tively few giant urban centers such as Chicago, New 
York, or Los Angeles. In most of our cities the tech­
niques necessary to accomplish desegregation are rela­
tively simple and creates no hardships. The experience 
in communities which have successfully desegregated 
could easily be transferred to cities of greater size. 
(Statement of the United States Commission on Civil 
Rights Concerning the “Statement by the President 
on Elementary and Secondary School Desegregation” , 
April 12, 1970.)

Judge Butzner’s decision suggests that complete deseg­
regation can be obtained only in “ towns, small cities, and 
rural areas” by the available techniques. But this very



40

record demonstrates that the technology is available to 
design desegregation plans for a city the size of Charlotte 
which will do the job of desegregating the schools. In part 
II which follows, we shall discuss the evidence about the 
workability of this plan.

II.

The Court Below Erred in Not Accepting the District 
Court’s Decision That Its Desegregation Plan Was Fea­
sible and in Setting It Aside as “ Unreasonable,”  Par­
ticularly in the Absence of Any Equally Effective and 
Expeditious Alternate Plan.

The district judge in this case faced an acute practical 
problem in formulating a remedy to redress the violations 
of the Constitutional rights o f black children in the Char- 
lotte-Mecklenburg system. The system is large with 84,542 
pupils in 106 schools. School segregation is still extensive 
with more than three-fourths of the children still in racially 
identifiable “white” schools or “black” schools. Some of the 
integrated schools have rapidly moved through a tempo­
rary integration to an all-black re-segregated situation. 
The free transfer plan was a conspicuous failure. To make 
matters worse, the school board refused to accept its duty 
of preparing an adequate plan. The board attacked the 
judge’s decisions in public forums and the state legislature 
enacted an anti-busing law to nullify his decisions. The 
board did not even deliver on desegregation promises in 
its interim plan for 1969-70. In the summer of 1969 the 
black community had protested “ one-way” desegregation in 
the interim plan by which only black pupils were bused to 
white schools and formerly black schools were abandoned. 
White parents groups were aroused against “busing” by 
televised school board meetings decrying the destruction



41

of “neighborhood schools.” Against this background in 
October 1969, the hoard requested a delay in filing a deseg­
regation plan. The judge regretfully concluded:

The school board is sharply divided in the expressed 
view of its members. From the testimony of its mem­
bers, and from the latest report, it cannot be concluded 
that a majority of its members have accepted the 
court’s orders as representing the law which applies 
to the local schools. By the responses to the October 10 
questions, the Board has indicated that its members do 
not accept the duty to desegregate the schools at any 
ascertainable time; and they have clearly indicated 
that they intend not to do it effective in the fall of 
1970. They have also demonstrated a yawning gap 
between predictions and performance.” (90a-91a)

Judge McMillan had no choice but to deny the requested 
delay in view of this Court’s then recent decision in Alex­
ander v. Holmes County Board of Education, 396 U.S. 19 
(October 29,1969). The school board then filed a third plan 
which the court later held “ contains no promise or likeli­
hood of desegregating the schools” (93a).

The singular thing about this case is that faced with this 
panoply of obstacles and difficulties, the district judge 
promptly found a means to completely integrate every 
school. He adopted the reasonable procedure of: (1) writ­
ing detailed legal guidelines for the preparation of a de­
segregation plan, (2) appointing the court’s own expert 
consultant to devise a plan, and (3) ordering the profes­
sional staff of the Charlotte school system to work with 
the court’s expert and give him full cooperation.36 The

36 The board was ordered to provide the consultant with work 
space, pay his fees and expenses, give him stenographic assistance, 
the help of business machines, draftsmen, and computers, as well as



42

procedure worked. By February 5, 1970, about two months 
after the expert’s appointment, the court was able to ap­
prove the plan. Over plaintiffs’ objection, and at the board’s 
request, implementation was postponed until later in the 
spring to enable the board to make further preparation.86

The decision of the court of appeals approved the plan 
for junior and senior high schools rejecting the school 
board’s appeal in this regard. But the elementary school 
plan was struck down because three judges of the court 
below held it was not “ reasonable,” and a fourth judge 
thought the plan undertakes the illegal objective of “achiev­
ing racial balance” by busing pupils.

To summarize petitioners’ position briefly, we think the 
ground for disapproving the elementary plan—that the bus-

access to all the board’s studies, including computer studies, of 
desegregation plans. The school staff was ordered to provide the 
consultant with “full professional, technical and other assistance” 
(110a). The Fourth Circuit approved this procedure citing Justice 
Brandeis’ opinion In the Matter of Peterson, 253 U.S. 300 (1920). 
See also, Scott v. Spanjer Bros., Inc., 298 F.2d 928 (2nd Cir. 
1962); 9 Wigmore, Evidence § 2484 (3rd Ed. 1940), 2 Wigmore, 
Evidence § 563; McCormick, Some Observation Upon the Opinion 
Rule and Expert Testimony, 23 Texas L. Rev. 109, 131 (1945) 
(eases recorded as early as the 14th Century) ; ef. Rule 28 Fed. 
R. Crim. P,, 18 U.S.C. (providing for court appointed experts in 
criminal cases). The appointment of a court-appointed expert panel 
to devise a school desegregation plan was approved in Dowell v. 
Board of Education, 244 F. Supp. 971, 973 (W.D. Okla. 1965), 
aff’d 375 F.2d 158, 162 (10th Cir. 1967), cert, denied, 387 U.S. 
931 (1967). I f a court has the equity power to award plaintiffs 
counsel fees against a foot-dragging school board {Bell v. School 
Board of Poivhatan County, Va., 321 F.2d 494 (4th Cir. 1963)), 
a fortiori, the court can take the milder course of taxing costs nec­
essary to enable the judge to frame his decree. This is all the more 
appropriate because the case so plainly involves the public interest.

36 After the court of appeals stayed part of the plan pending 
appeal, the district judge concluded that the integration require­
ment was no longer so urgent and postponed the entire plan until 
September 1970. Petitioners unsuccessfully opposed each delay and 
cross-appealed the delay order. The school year ended without any 
Fourth Circuit action on petitioners’ motion to set aside the stay.



43

ing involved is too onerous for the board—is in Judge 
Winter’s phrase, “ insubstantial and untenable” (218a). 
Judge McMillan has ordered a very feasible and sensible 
plan. It promises to eliminate segregation immediately. 
There is no other plan in the record which is equally effec­
tive. The district court’s determination that the plan is 
feasible is supported by substantial evidence and the find­
ings to this effect were accepted on appeal as not clearly 
erroneous. Acceptable procedures were used to formulate 
the plan. There is no basis for concluding as a matter of 
law that the plan is “unreasonable.” There was no abuse 
of discretion in formulating the remedy. The arguments 
about illegal busing to achieve racial balance and the neigh­
borhood school theory are also legally insubstantial.

The district court acted within the limits of its discretion 
in fashioning an equitable remedy for the present uncon­
stitutional system. The Finger Plan meets the principal 
test established by Green v. County School Board of New 
Kent County, 391 U.S. 430 (1968), in that it does promise 
to dismantle the dual system and provide a unitary system 
of schools. It will produce a system without a single school 
which might be labeled a “white” school or a “black” school. 
The elimination of racially identifiable schools promised by 
this plan produces the result called for by Green, supra.

I f  there was some proposal in the record which would be 
equally effective or more effective in eliminating segrega­
tion, there would be room for discussion about which plan 
is most desirable. But, Judge McMillan demonstrated that 
he was prepared to accept school board alternatives which 
produced equal results in accomplishing desegregation. He 
preferred such “home-grown products” even where he be­
lieved the expert consultant’s proposals were more efficient. 
But an essential finding which supports the Finger Plan for 
elementary schools is Judge McMillan’s conclusion that it



44

was necessary to adopt a plan of this type to accomplish 
the result of desegregation. The court found:

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 of children. All plans 
and all variations of plans considered for this purpose 
lead in one fashion or another to that conclusion. 
(146a)

Judge Sobeloff’s dissenting opinion, noted that “ The 
point has been perceived by the counsel for the board, who 
have candidly informed us that if the job must be done 
then the Finger plan is the way to do it” (204).

The elementary plan ought to be upheld if the case is 
governed by the traditional rule for appellate review of a 
chancellor’s decree in equity. The prevailing rule is that 
equitable discretion in framing remedies is necessarily 
broad and that a strong showing of abuse of discretion 
must be made to reverse such a decree. United States v. 
W. T. Grant Co., 345 U.S. 629 (1953); Continental Illinois 
Nat. Bank <& Trust Co. v. Chicago R. I. <& P. Co., 294 U.S. 
648, 677 (1935); United States v. CorricJc, 298 U.S. 435 
(1936); Rogers v. Hill, 289 U.S. 582 (1933). In order to 
set aside the equity decree the appellant “ must demonstrate 
that there was no reasonable basis for the district judge’s 
decision,”  and thus that the remedy is so lacking in ra­
tionality as to amount to an abuse of discretion. United 
States v. W. T. Grant Co., supra, 345 U.S. at 634.

This Court’s decisions in school cases have relied on 
traditional equitable principles on remedial issues. In the 
second Broivn decision the Court invoked the tradition of



45

equity which was said to be “characterized by a practical 
flexibility in shaping its remedies and by a facility for 
reconciling public and private needs” (349 U.S. at 300). 
The Brown II Court cited with approval a passage in 
Alexander v. Hillman, 296 U.S. 222, 239 (1935), stating.

Treating their established forms as flexible, courts of 
equity may suit proceedings and remedies to the cir­
cumstances of cases and formulate them appropriately 
to safeguard, conveniently to adjudge and properly to 
enforce substantial rights of all the parties before 
them.

In Griffin v. School Board, 377 U.S. 218, 232-233 (1964), 
the Court said that “ relief needs to be quick and effective,” 
and that a federal court could require a county to levy 
taxes if necessary to maintain a non-discriminatory public 
school system. Green v. County School Board, 391 U.S. 
430, 439 (1968), emphasized that in formulating a remedy 
district courts were to assess “ the circumstances present and 
the options available in each instance.” In United States v. 
Montgomery County Board of Education, 395 U.S. 225, 
235 (1969), the Court emphasized that “ in this field the 
way must always be left open for experimentation.” In 
the Montgomery County case the Court reversed a court 
of appeals decision which labeled the district judge’s order 
too rigid and inflexible in favor of the trial court’s “more 
specific and expeditious order.”  Finally, in decisions this 
term the Court has limited the discretion of the courts 
to delay relief by making it plain that the “ standard of 
allowing ‘all deliberate speed’ for desegregation is no 
longer constitutionally permissible.” Alexander v. Holmes 
County Board of Education, 396 U.S. 19 (1969); Carter v. 
West Feliciana; Parish School Board, 396 U.S. 290 (1970); 
Dowell v. Board of Public Education of Oklahoma City, 
396 U.S. 269 (1969).



46

There is nothing in this development of school desegrega­
tion law since Brown which warrants the departure from 
the traditional rule of appellate review announced by the 
plurality opinion of Judge Butzner for the court below. 
This new test of “ reasonableness” enables the reviewing 
court to set aside the trial court’s discretion on the ground 
that the appeals court majority would prefer another 
mode of relief albeit less effective. This runs exactly 
counter to the spirit of Green which declares that the 
result—actual desegregation—is the imperative thing and 
that the methodology of desegregation plans is secondary. 
It also runs counter to the philosophy of Alexander, 
Carter and Dowell, supra, which place a premium on the 
immediate implementation of constitutional rights pending 
the completion of litigation. The reasonableness test allows 
so much scope for unpredictable reversals of those decrees 
which accomplish actual desegregation as to substantially 
nullify Alexander. The reasonableness test signals the 
need for trial courts to adopt a “go-slow” cautious ap­
proach. Although busing is approved in principle in the 
opinion below, the result makes it clear that busing must be 
limited. The standard of “ reasonableness”  is broad and 
vague, but it does not allow broad discretion for trial courts 
to order busing. Any plan found objectionable by a school 
board can colorably be said to be “unreasonable” justifying 
at least a stay pending appeal. The “ reasonableness” test 
is “deliberate speed” in a new guise.

The district court’s decision that the Finger Plan is 
feasible is in any event supported by substantial evidence. 
It was error for the court of appeals to substitute its own 
finding of “unreasonableness” where there was no claim 
that the district court’s findings were clearly erroneous. 
Cf. Northcross v. Board of Education, 397 U.S. 232, 235 
(1970) As Judge Sobeloff has shown, in dissent, “ there 
is no genuine dispute” on the feasibility of the plan; it is 
“ simple and quite efficient” (206a). Here are the facts.



47

The Finger Plan requires transportation of pupils to 
accomplish desegregation. The system now transports 
23,600 pupils by school bus and another 5,000 by common 
carrier.37 The school board’s proposed plan would bus 
about 5,000 additional children38 but still would not 
desegregate the system, leaving 10 Negro schools.39 The 
board’s plan by busing about 8,000 more children than the 
board’s proposal (a total of about 13,000 more than at 
present)40 will eliminate racial identifiability from every 
school in the system. The court of appeals affirmed the 
order as to secondary students (1,500 senior high and 
2,500 junior high pupils), but reversed the requirement 
as to elementary pupils (9,300 pupils, including 1,300 in 
schools to be simply rezoned, and 8,000 involved in cross 
busing between paired schools).41

The court carefully considered the busing from the 
standpoint of the children. The crucial finding is this :

The court finds that from the standpoint of distance 
travelled, time en route and inconvenience, the children 
bussed pursuant to the court order will not as a group 
travel as far, nor will they experience more incon­
venience than the more than 28,000 children who are 
already being transported at state expense. (143a)

At present the average one-way trip in the system is over 
15 miles requiring one hour and fourteen minutes.42 Eighty 
percent of the buses in the system require more than one

37 See 138a.
38 See 155a.
39 The board plan would produce 9 elementary schools 83% to 

100% black serving over half of the entire black elementary popula­
tion (120a). In this plan Piedmont Junior High would be 90% 
black and shifting toward 100% black; segregation would actually 
increase by 1% more black pupils (124a).

40 See 157a.
41 Ibid.
42 See 142a, 153a.



48

hour for a one-way trip now.43 The average one-way trip 
under the court plan “ for elementary students is less than 
seven miles, and would appear to require not over 35 
minutes at most, because no stops will be necessary between 
schools.” 44

Judge Butzner’s opinion approves “bussing [as] a per­
missible tool for achieving integration, but . . . not a pan­
acea.” He wrote that in deciding on busing boards “ 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.”  This 
ruling is enlightened and progressive as used to approve 
busing plans for secondary schools. But it fails to satisfy 
constitutional requirements, if it means, as it apparently 
does, that these factors are to be weighed in determining 
whether schools will be integrated at all. There is no sug­
gestion in the opinion that the majority found the Finger 
plan wanting in terms of the “ age of the pupils” , since 
busing elementary pupils is an established tradition in this 
system. There was no suggestion that the times and dis­
tances involved were excessive since they plainly compared 
favorably with the present practice. The determination to 
reverse the elementary plan is put entirely on the cost 
factor.

To begin with, the court below states the cost issue not 
in dollar terms, but in terms of the increased percentage 
of busing. Thus the cost is not considered in terms of its 
“ relation to the board’s resources” but only in relation to 
present expenditures for busing. Even on this basis the 
plan will require less busing in Charlotte than the state­
wide average of 54.9% of the pupils (137a). But the

43 See 142a.
44 See 153a. “ The average straight line mileage between the 

elementary schools paired or grounded under the ‘cross-bussing’ 
plan is approximately 5y2 miles.” (183a) The trip mileage was 
arrived at by the bus superintendent’s method of taking straight 
line mileage and adding 25%.



49

“board’s resources” in this context are much broader than 
the local funds because in North Carolina transportation 
costs are largely met by the State, which replaces all buses 
after the local authorities make the first purchase, and bears 
most of the operating costs. The total annual cost per 
pupil is about $20 in the system. (Note that the $39.92 
figure mentioned several times in opinions is erroneous 
and is corrected to $20 at 181a-182a.) Virtually the entire 
cost is borne by the State, except for one-time bus purchase 
costs and incidental administrative costs and parking ex­
penses. The capital outlay required for the elementary 
busing is $5,400 per bus for 90 vehicles, or $486,000. This 
investment will bring not only vehicles with useful lives of 
ten or more years but also the right to have them per­
petually replaced at no further local cost by the state board 
of education. Operational costs (reimbursed by the State) 
for the added elementary busing were found to be $186,000 
annually (191a, 181a-182a).

When these expenditures are considered in the context 
of the local budget figures and the state budget figures 
they are so small as to be insignificant. The 1969-70 budget 
for Charlotte-Mecklenburg is $57,711,344, and future years 
may bring even larger expenditures. Between six and seven 
million dollars represents capital outlay and debt service. 
School construction is not included in these figures. In 
1968-69 the state’s education budget was over 3.59 billion 
dollars and this included over $14 million spent on trans­
portation for an average of 610,760 pupils daily. Given this 
financial framework, the decision below that there is a 
financial barrier to integrating the local school system 
cannot be sustained. The appropriate principle was stated 
in Cooper v. Aaron, 358 U.S. 1, 19, where a unanimous 
court declared that:

State support of segregated schools through any ar­
rangement, management, funds or property cannot be



50

squared with the Amendment’s command that no state 
shall deny to any person within its jurisdiction the 
equal protection of the laws.

We live in a society where it is a commonplace for gov­
ernment to spend vast sums to protect the constitutional 
rights of our citizens. New York City in recent weeks is 
reported to have spent a million dollars for overtime police 
protections for pro- and anti-war demonstrators in the 
streets. Examples could he proliferated. The rights of 
black children to an equal educational opportunity cannot 
he sacrificed on the ground that it costs too much to grant 
equal treatment. If necessary, the federal courts may even 
command that the money he levied and spent to redress 
denial of constitutional rights. Griffin v. School Board, 377 
TJ.S. 218 (1964). But this case involves merely a decision 
about how existing resources are allocated. As a matter 
of fact, at the time of the judge’s supplemental findings 
of March 21, 1969, the state hoard of education (a defen­
dant in this case) had “approximately 40 brand new school 
busses and 375 used busses in storage, awaiting orders from 
school boards”  (157a). “ The problem is not one of avail­
ability of busses but of unwillingness of Mecklenburg to 
buy them and of the state to furnish or make them available 
until final decision of this case”  (157a-158a).

Judge Sobeloff found the majority’s conclusion with re­
spect to the elementary plan so inconsistent with the deci­
sion approving the use of busing, satellite zoning, and 
similar techniques for secondary students that he said the 
"decision totally baffles me”  (211a). The major distinction 
between the busing which is approved and that which is 
rejected is that the secondary plans primarily increased 
busing of black students to formerly white schools while 
the elementary plan requires busing of white children as 
well as Negroes. We are unlikely to ever end the dual



51

school systems until it becomes accepted that the incon­
veniences incident to reorganizations of the school systems 
will not he borne by black pupils alone but will be shared 
by the white community. Equal protection does require 
that desegregation plans be generally equitable and not 
place the entire burden on blacks. Judge McMillan an­
nounced at the time he approved the interim plan for 
1969-70 that he would not again approve a plan for one-way 
busing (69a-70a). He wrote that:

If, as the school superintendent testified, none of the 
modern, faculty-integrated, expensive, “ equal” black 
schools in the system are suitable for desegregation 
now, steps can and should be taken to change that con­
dition before the fall of 1970. Unsuitability or inade­
quacy of a 1970 “black” school to educate 1970 white 
pupils will not be considered by the court in passing 
upon plans for 1970 desegregation. (70a)

Judge McMillan’s plan should be approved as an intelli­
gent effort to comply with the Brown decision. When first 
considering the idea of eliminating all racially identifiable 
schools by a percentage formula he pointed out that:

. . .  it would be a great benefit to the community. It 
would tend to eliminate shopping around for schools; 
all the schools, in the New Kent County language, 
would be “ just schools” ; it would make all schools 
equally “desirable” or “ undesirable” depending on the 
point o f view; it would equalize the benefits and bur­
dens of desegregation over the whole county . . . ; it 
would get the Board out of the business of lawsuits and 
real estate zoning and leave it in the education busi­
ness; and it would be a tremendous step toward the 
stability of real estate values in the community and 
the progress of education of children. Though seem­
ingly radical in nature, if viewed by people who live 
in totally segregated neighborhoods, it may like sur-



52

gery be the most conservative solution to the whole 
problem and the one most likely to produce good educa­
tion for all at a minimum cost.

This record shows that there is no reason not to use 
school buses to integrate the schools except to keep them 
segregated. Busing is a legitimate technique of educa­
tional administration. In Charlotte schools today, the walk- 
in neighborhood school is primarily a phenomenon in the 
black neighborhoods. Of 17,000 children in black schools, 
only about 541 are now transported to school (142a); no 
black school depends very much on school buses. By con­
trast, white schools have the opposite pattern, and “ sub­
urban schools, including the newest ones, have been located 
far away from black centers, and where they cannot be 
reached by many students without transportation” (Hid.). 
The Center for Urban Education recently said that “Riding 
the yellow school bus is as much a symbol of American 
education in 1970 as the little red sehoolhouse was in 1900. 
And, until recently, it had conveyed no emotional overtones 
other than nostalgia for lost youth.” (“ On the Matter of 
Busing: A  Staff Memorandum from the Center for Urban 
Education” , February 1970.) The Civil Rights Commission 
has made the same point:

Thus the arguments that some now make about the 
evils of busing would appear less than ingenuous. 
The plain fact is that every day of every school year 
18 million pupils—40 percent of the Nation’s public 
school children—are bused to and from school, and 
the buses log in the aggregate more than two billion 
miles—nine billion passenger miles— each year. It 
also should be understood that the overwhelming ma­
jority of school busing has nothing to do with deseg­
regation or achieving racial balance. The trend toward 
consolidation of schools, for example, particularly in 
rural areas, requires extensive busing. It causes no



53

disruption to the educational routines of the children 
and is treated as normal and sensible.

*  *  #

In the Commission’s view, the emphasis that some 
put on the issue of busing' is misplaced. As most 
Americans would agree, it is the kind of education 
that awaits our children at the end of the bus ride 
that is really important.

(Statement o f the United States Commission on Civil 
Eights Concerning the “ Statement by the President 
on Elementary and Secondary School Desegregation” , 
April 12, 1970)

CONCLUSION

For the foregoing reasons it is respectfully submitted 
that the petition for certiorari should be granted to review 
the judgment of the United States Court of Appeals for 
the Fourth Circuit.

Eespectfully submitted,

J ack  G reenberg 
J ames M. N abrit, III 
N orm an  J . C h a c h k in  

10 Columbus Circle 
New York, New York 10019

J. L eV onne  C hambers 
A dam  S tein

C ham bers, S te in , F erguson & F an nin g  
216 West Tenth Street 
Charlotte, North Carolina 28202

C. O. P earson

2031/2 East Chapel Hill Street 
Durham, North Carolina 27702

Attorneys for Petitioners



M E IIEN  PRESS INC. —  N. Y. C. 219