Amicus Brief of the School Board of Manatee County, Florida

     [||bd844b9a-b143-40f0-86d4-d16e01ffb8d2||] IN THE 

Supreme mut of the United States 
OCTOBER TERM, 1970 

JAMES E. SWANN, etal, 

Petitioners 

versus 

CHARLOTTE-MECKLENBURG BOARD 
OF EDUCATION, et al., 

Respondents, 

Certiorari to the United States Court of Appeals 
for the Fourth Circuit 

AMICUS BRIEF OF THE SCHOOL BOARD OF 
MANATEE COUNTY, FLORIDA 

Kenneth W. Cleary 

Dye, Dye, Smith, Cleary & Scott 

P. O. Box 2480 

Bradenton, Florida 33505 

Attorney for the School Board 

of Manatee County, Florida 

Had I IC So Yo oo EH DD A ar CA SH ADI AI AAS  



TABLE OF CONTENTS 

  

Page 

Natureof Interest of Amicus. . .. .. . cv i vs vos ons 2 

Ouestions Presented . ... ..........¢c....:0:.. 2 

Argument. ........... cc eae 2 

Conclusion =... . :. . . .... . cs viosle.nicir: 4 

Certificate of Service... . . .. . cc vd. i viens ois 5 

TABLE OF AUTHORITIES 

Case Page 

Alexander v. Holmes County Board of Education, 396 

S19 sei es a eee see 2 

Brown v. Board of Education1,347 U.S. 483 ......... 2 

Deal v. Cincinnati Board of Education, 369 F. 2d 535, cert. 

denied 3891. 85.847. 88S. Ct.39, 19. Bd24114 .... 3 

Ellis v. Board of Public Instruction of Orange County, 423 

F. 24203. ves ie 4 

Graves v. Walton County Board of Education, 403 F. 2d 184. 3 

Green v. County School Board of New Kent County, 88 S. 

Ct. 1689. 391 11.S.430 ......... ...:. viii: 4 

Jackson v. Marvell School District, 416 F.2d 380 ..... .. 3 

Swann v. Charlotte-Mecklenburg Board of Education, 369 

E2429 Uh ie anes i hes 3 

United States v. Jefferson County Board of Education, 372 

F. 2d 836. cert. denied sub nom. Caddo Parish School 

Board v. United States, 339 U.8.8406 ........ .. .. .. 3  



IN THE 

SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1970 

No. 281 

JAMES E. SWANN, etal, 

Petitioners 

Versus 

CHARLOTTE-MECKLENBURG BOARD 
OF EDUCATION, et al., 

Respondents, 

Certiorari to the United States Court of Appeals 
for the Fourth Circuit 

AMICUS BRIEF OF THE SCHOOL BOARD OF 
MANATEE COUNTY, FLORIDA  



  

NATURE OF INTEREST OF AMICUS CURIAE 

This brief is filed in behalf of the School Board of the 

County of Manatee, a political subdivision of the State of 
Florida, and is sponsored by the attorney for the School Board 

of Manatee County, Florida, the authorized law officer thereof, 

under Rule 42 (4) of the Rules of the Supreme Court of the 

United States. 

The interest of the School Board of Manatee County arises 
because the Fifth Circuit Court of Appeals in Caroline Harvest, 
et al. The Board of Public Instruction, Manatee County, 

Florida, et al, vs. Jerome Pratt, et al, 5S Cir. 1970 ——F. 

2d.—— [No. 29.425, June 26, 1970], affivmed an order of the 

District Court, Middle District of Florida, entered on January 
29, 1970, which order directed the pairing and clustering of 
certain elementary schools in a manner which achieved an 

artificial racial balance in all elementary schools. The same 

order, in effect, necessarily required the bussing of students 

from their neighborhood school areas to another neighborhood 

school area where classes were to be held, a condition which did 

not previously exist prior to the entry of the aforementioned 

orders. 

QUESTIONS PRESENTED 

1. Does the Constitution require substantial racial balance in 

the system? : 
2. Does the United States Constitution authorize a court to 

order a plan which, of necessity, requires bussing for its 

implementation? 

ARGUMENT 

The Constitution requires wholly non-racial public school 

systems. This Court has never ruled that a unitary school system 

is one in which substantial racial balance as to student body 

composition is required. There appears to be a subliminal theme 

in desegregation cases decided by this Court indicating that race 

must not be considered. This starts in Brown v. Board of 

Education 1, 347 U.S. 483, and runs through Alexander v. 

Holmes County Board of Education, 396 U.S. 19. This Court in 

   



Alexander held that a unitary system is one within which “no 

person is to be effectively excluded from any school because of 
race or color.” (emphasis added). There is no requirement that a 
person be included because of race or color, and, in fact, to so 

require would result in an exclusion from another school solely 

on the basis of race or color. 

The necessity or non-necessity of racial balance is an 

important question of federal law which should be settled by 

this Court. It is a question in which there is a conflict among 
the decisions of the Courts of Appeal in the several circuits. The 

Sixth Circuit in Deal v. Cincinnati Board of Education, 369 F. 

2d. 55, cert. denied 389 11.S. 847, 88° 8. Ct. 39, 19 L.Ed. 2d. 
114 held that there is no constitutional duty on the part of a 
Board to bus Negro or white children out of their 

neighborhoods or to transfer classes for the sole purpose of 

alleviating racial imbalance. The Fourth Circuit in Swann v. 

Charlotte-Mecklenburg Board of Education, 369 F. 2d. 29, 

holds that substantial racial balance is not necessary. Other 

cases in other circuits have made similar rulings. The Fifth 

Circuit is unsettled but in recent cases has become extremely 

color conscious and has demanded racial balance. See United 

States v. Jefferson County Board of Education, 372 F. 2d. 836, 

cert. denied sub nom. Caddo Parish School Board v. United 

States, 389 U.S. 840. 

Another question which arises, assuming this Court 

unitary system is whether or not each school within a system 

must have both black students and white students within its 

student body composition. It is obvious that the lower Court in 

this case ruled that there must be blacks and whites in every 

school whenever possible. The various Circuits are in conflict 
over this question. This problem appears in the Fifth Circuit 

case of Graves v. Walton County Board of Education, 403 F. 

2d. 184, wherein the Court holds that if there are still all-Negro 
schools, the plan fails, as a matter of law, to meet constitutional 

standards established in the Green case. This theorem is carried 
forward in the Eighth Circuit in Jackson v. Marvell School 

District, 416 F. 2d. 380. The Fourth Circuit in Swann ». 

Charlotte-Mecklenburg Board of Education, supra, holds that 
the presence of an all black school will not invalidate an 

 



    

4 

otherwise unitary system. The same conclusion is reached in the 

Sixth Circuit in the Deal cases and has also been reached in the 

Fifth Circuit in Ellis v. Board of Public Instruction of Orange 

County, 423 F. 2d. 203. The contradictory positions reached in 

the Fifth Circuit may be attributed to the fact that different 

panels sat in these cases. 

Nothing in the Constitution of the United States permits, 

much less requires, the bussing of school children to achieve 

racial balancing. The direction (Alexander v. Board of 

Education, 396 U.S. 19) “to operate as unitary school systems 

within which no person is to be effectively excluded from any 

school because of race or color” forbids the result obtained 

below, which in fact excludes several hundred white children 

from the walk-in schools nearest their homes simply because 

admitting them there fails to achieve racial balancing within the 

entire system. Past discrimination in one direction does not 

justify present discrimination in another. 

CONCLUSION 

The issues are of concern throughout the country and the 

lack of answers and guidelines have caused confusion, endless 

litigation and inflamed emotions. The answers must be supplied 

and supplied now. Amicus urges the Court to set forth 

comprehensive guidelines and to hold that racial balance is not 

required for a unitary system; that neighborhood schools should 

be preserved and that education must be the primary concern in 

a unitary school system. 

Respectfully submitted, 

Kenneth W. Cleary 

Dye, Dye, Smith, Cleary & Scott 

P. O. Box 2480 
Bradenton, Florida 33505 

Attorney for the School Board 

of Manatee County, Florida 

   



CERTIFICATE OF SERVICE 

This is to certify that copies of Amicus Brief of the School 

Board of Manatee County, Florida were served upon each of the 

attorneys named below by depositing the same in the United 

States mail, postage prepaid on this 

William J. Waggoner 

1100 Barringer Office 

Tower 

426 North Tyron Street 

Charlotte, North Carolina 

Benjamin S. Horack 

806 East Trade Street 

Charlotte, North Carolina 

Julius LeVonne Chambers 

216 West Tenth Street 

Charlotte, North Carolina 

Jack Greenberg 

10 Columbus Circle 

New York, New York 

Conrad O. Pearson 

203 2 East Chapel Hill 
Street 

Durham, North Carolina 

Jerris Leonard 
Assistant Attorney General 

U. S. Department of Justice 
Washington, D. C. 

davof___ 1970.   

Honorable Erwin N. Griswold 

Solicitor General of United 

States 

Department of Justice 
Washington, D.C. 20530 

Honorable Robert Morgan 

Attorney General 

State of North Carolina 

Department of Justice 
Raleigh, North Carolina 

William C. Cramer, M.C. 

2165 Rayburn Building 
Washington, D. C. 20515 

Stephen J. Pollak 
Benjamin W. Boley 

Richard M. Sharp 
734 Fifteenth Street, N.W. 

Washington, D. C. 20036 

Gerald Mager 

General Counsel to the Governor 

The Capitol 
Tallahassee, Florida 

Kenneth W. Cleary [||bd844b9a-b143-40f0-86d4-d16e01ffb8d2||]