Swann v. Charlotte-Mecklenberg Board of Education Opinion

    '/Jlj D I

UNITED STATES COURT OF APPEALS
HIE FOURTH CIRCUIT

No. 14,517 
No. 14,518

JAMES E. SWANN, et al.,

-versus-

CHARLOTTE-MECKLENBURG BOARD CF EDUCATION, et al.,

Appellees
and

Cross-Appellants,

Appellants
and

Cross-Appellees.

Appeals from the United States District Court for the

(Argued April 9, 1970. Decided May 26, 1970.)

hisdfeDir^r dis?ualified himself for reasons stated in nxs separate op3.mon.



-iA’ ,

William J. Waggoner and Benjamin S. Horack (Ervin, Horack 
and McCartha; and Weinstein, Waggoner, Sturges, Odom and 
Bigger 01 brief) for appellants and cross-appellees; J. 
LeVonne Chambers (Adam Stein and Chambers, Stein, Ferguson 
& Lanning; Jack Greenberg, James M. Nabrit, III, and Con­
rad 0. Pearson on brief) for appellees and cross-appellants; 
David L. Norman, Deputy Assistant Attorney General of the 
United States, (Jerris Leonard, Assistant Attorney General, 
Brian K. Landsberg and David D. Gregory, Attorneys, Depart­
ment of Justice, and Keith S. Snyder, United States Attorney 
for the Western District of North Carolina, on brief) for 
United States of America as amicus curiae; Stephen J. Poliak 
(Richard M. Sharp, and Shea & Gardner; and David Rubin, on 
brief) for The National Education Association as amicus 
curiae; The Honorable William C. Cramer, M.C.,amicus curiae; 
Gerald Mager for The Honorable Claude R. Kirk, Jr., Governor 
of Florida, amicus curiae.

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BUTZNER, Circuit Judge:

The Charlotte-Mecklenburg School District ap­

pealed from an order of the district court requiring the 

faculty and student body of every school in the system to 

be racially mixed. We approve the provisions of the order 

dealing with the faculties of all schools and the assign­

ment of pupils to high schools and junior high schools, 

but we vacate the order and remand the case for further 

consideration of the assignment of pupils attending ele­

mentary schools. We recognize, of course, that a change 

in the elementary schools may require some modification 

of the junior and senior high school plans, and our remand 

is not intended to preclude this.

I.

The Charlotte-Mecklenburg school system serves 

a population of over 600,000 people in a combined city and 

county area of 550 square miles. With 84,500 pupils attend-

1. The board's plan provides: "The faculties of all school;
will be assigned so that the ratio of black teachers to 

white teachers in each school will be approximately the same 
as the ratio of black teachers to white teachers in the en­
tire school system." We have directed other school boards 
to desegregate their faculties in this manner. See Nesbit 
v. Statesville City Bd. of Ed., 418 F.2d 1040, 1042 (4th 
Cir. 1969) ; cf. , United States v. Montgomery County Bd. of 

• Ed., 395 U.S. 225, 232 (1969).

N -3-



ing 106 schools, it ranks as the nation's 43rd largest 

school district. In Swann v. Charlotte-Mecklenburg Bd. 

of Ed., 369 F.2d 29 (4th Cir. 1966), we approved a de­

segregation plan based on geographic zoning with a free 

transfer provision. However, this plan did not eliminate 

the dual system of schools. The district court found that 

during the 1969-70 school year, some 16,000 black pupils, 

out of a total of 24,700, were attending 25 predominantly 

black schools, that faculties had not been integrated, and 

that other administrative practices, including a free trans 

fer plan, tended to perpetuate segregation.

Notwithstanding our 1965 approval of the school 

board's plan, the district court properly held that the 

board was impermissibly operating a dual system of schools 

in the light of subsequent decisions of the Supreme Court, 

Green v. School Bd. of New Kent County, 391 U.S. 430, 435 

(1968), Monroe v. Bd. of Comm'rs, 391 U.S. 450 (1968), and 

Alexander v. Holmes County Bd. of Ed., 396 U.S. 19 (1969).

The district judge also found that residential 

patterns 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

N
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them under familiar principles of appellate review. The 

district judge pointed out that black residences are con­

centrated 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^ until 

Shelley v. Kraemer, 334 U.S. 1 (1948} prohibited this dis­

criminatory practice. 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 ro c hr n 4- n rl 1 nrv/J  ̂--- mk « J r /- ̂ ̂ -- - '—  ^ ~ uou6c, m e  uiS-
trict judge also found that urban renewal projects, sup­

ported by heavy federal financing and the active partici­

pation of local government, contributed to the city's raciall 

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 in­

evitable result. The interplay of these policies on both 

residential and educational segregation previously has been 2

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

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recognized by ibis and other courts.3 The fact that similar 

forces operate in cities throughout the nation under the 

mask of de facto segregation provides no Justification for 

ailowing us to ignore the part that government plays rn 

creating segregated neighborhood schools.
The disparity in the number of black and white 

pupils the Charlotte-Mecklenburg School Board busses to

predominantly black and white schools illustrates how
• t-v. location of schoolscoupling residential patterns wrth the

i u ic All pupils are eligible tocreates segregated schools. All pup
. _ .. ... 1 .̂.C farther than 1-1/2 miles ride school buses rr cne, — c -----

from the schools to which they are assigned. Overall sta­

tistic. show that about one-half of the pupils entitled 

to transportation ride school buses. Only 541 pupils were 

bussed in October 1969 to predominantly black schools.

3. E.g.. Henry v. Clarksdale U.S. 940
e V  SC o o l ^ t r g r o ^ c o o k  County.

404 F.2d 1125, 1130 Oth C ' v _ gStoSl Bd. of City
786, 798 (N.D. HI. 1988'> ,, rir 1968); Keyes v.
of Norfolk, 397 F.2d 37, Supp. 279 and 289 (D.
School Dist. No. One, ^ f h s n t e d  F.2d_____ <1°«*
Colo.), stay PendHl£-aEEi--gg-^^1969) ; Dowell v. School Cir.), stay_vaca£|^, 396 U.S^ 12 5 t g?5 (W-D. Okla. 1965), 
Bd. of Oklahoma City, 244 F-Supp. denled, 387 U.S. 931
af f' d, 375 F.2d 158 , ^ [ C™ '1 l.fr& h S S S S  in th^Public 
H967t. See generally Fiss, —  j g ^ ^ T X T T e v .  564

fsisai* °£ 419 F-2(1965). But see Deal v.
1387 (6th Cir. 1969).

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which had a total enrollment of over 17,000. In contrast,

8 schools located outside the black residential area have 

in the aggregate only 96 students living within 1-1/2 miles. 

These schools have a total enrollment of about 12,184 pupils 
of whom 5,349 ride school buses.

II.

The school board on its own initiative, or at 

the direction of the district court, undertook or proposed 

a number of reforms in an effort to create a unitary school 

system. It closed 7 schools and reassigned the pupils pri­

marily to increase racial mixing. It drastically gerry­

mandered school zones to promote desegregation, n  created 

a Single athletic league without distinction between white 

and black schools or athletes, and at its urging, black and 

white PTA councils were merged into a single organization.

It eliminated a school bus system that operated on a racial 

basis, and established nondiscriminatory practices in other 

facets of the school system. It modified its free transfer 

plan to prevent resegregation, and it provided for integra­

tion of the faculty and administrative staff.

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The (Uhi t int'‘inn h  i rim/ f ttf
,,r i.i,, , W'instaking analysis°r the liom-.l1,! ,, ,
... . ' authorities, dis-•ippiovcd u„.. board',, llwil t

school,, nearly |(|>|()/ ' becaUSe "  left
the distrle, ' 1,1 "K thls decision>

BLrUl C,,,‘r<- I'-M II,a, ,, „qf-,. 1 . , ’> "ml inutit integrate thestudent bo,ly of every

school,,, which I..... lnm 3 dUal SyStem
a , " hy state action, toa unitary ayutem.

“llio noeeaajfy
exi (.r, , 1 v/̂  h segregation thatexisLs because govern,,,,.,,,
neii-hh k * 111 segregatedneighborhood school,, j,, .
„cckl , " <0 the Charlotte-Mecklenburg School !,J (lt,a ,
in many other ,■•• • ’ segregation occurs

tion-il , , n »' nation, and constitu­tional principle,, d<,„||„., w(
ally Thr S '"',Id be applied nation-
aiAy- rhe 8°1u lJon Ja nor
now well ^  ,l<)"> ‘‘l^iculty. It iswell settled that school ,
hnvo n cn °l,,,r/,ling dual systemshave an affirmative „
system t i l l  (o n unptary school
system in Which racial ,||fierl„,

1 "''lion would be eliminatedroot and branch." rril,
391u 0 V' of New Kent County,
391 u* S* 4 °̂> W  <\%H) ,o

i < 111 * I*" Supreme Court de­fined a unitary school ,Val„
J *ih ht) (aHi | i.i i • -iWiLhin which no perso



is to be effectively excluded from any school because of 

race or color." Alexander v. Holmes County Bd. of Ed.,

396 U.S. 19, 20 (1969). This definition, as the Chief 

Justice noted in Northcross v. Board of Ed. of Memphis,

90 S.Ct. 891, 893 (1970), leaves open practical problems, 

"including whether, as a constitutional matter, any par­

ticular racial balance must be achieved in the schools; 

to what extent school districts and zones may or must be 

altered as a constitutional matter; to what extent trans­

portation may or must be provided to achieve the ends 

sought by prior holdings of the Court."

Several of these issues arise in this case. To 

resolve them, we hold: first, that not every school in a

unitary school system need be integrated; second, neverthe­

less, school boards must use all reasonable means to inte­

grate the schools in their jurisdiction; and third, if 

black residential areas are so large that not all schools 

can be integrated by using reasonable means, school boards 

must take further steps to assure that pupils are not ex­

cluded from integrated schools on the basis of race. Special 

classes, functions, and programs on an integrated basis

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T'jrw maH. .» ......... A y .„ , v... .”'■"/mi. '*™ "1-vim. •»>. .4.



should be made available to pupils in the black schools.

The board should freely allow rrajority to minority trans­

fers and provide transportation by bus or common carrier 

so individual students can leave the black schools. And 

pupils who are assigned to black schools for a portion of 

their school careers should be assigned to integrated schools 

as they progress from one school to another.

We adopted the test of reasonableness -- instead 

of 006 that calls for absolutes —  because it has proved 

to be a reliable guide in other areas of the law. Further- 

raorej the standard of reason provides a test for unitary 

school systems that can be used in both rural and metropoli­

tan districts. All schools in towns, small cities, and 

rural areas generally can be integrated by pairing, zoning, 

clustering, or consolidatirg schools and transporting pupils. 

Some cities, in contrast, have black ghettos so large that 

integration of every school is an improbable, if not an un­

attainable, goal. Nevertheless, if a school board makes 

every reasonable effort to integrate tUe pupils under its 

control, an intractable remnant of segregation, we believe, 

should not void an otherwise exemplary plan for the c\-eation

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of a unitary school system. Ellis v. Board of Public 

Instruc. of Orange County, No. 29124, Feb. 17, 1970

will be. assigned to the system's ten high schools accord­

ing to geographic zones. A typical zone is generally fan 

shaped and extends from the center of the city to the 

suburban and rural areas of the county. In this manner 

the board was able to integrate nine of the high schools 

with a percentage of black students ranging from 17% to 

367o. The projected black attendance at the tenth school,

The court approved the board's high school plan 

with one modification. It required that an additional 

300 pupils should be transported from the black residential 

area of the city to Independence School.

The school board proposed to rezone the 21 junior 

high school areas so that black attendance would range from 

0% to 907o with only one school in excess of 38%. This schoo

F. 2d (5th Cir.)

Ill

The school board's plan proposes that pupils

Independence, which has

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Piedmont, in the heart of the black residential area, has 

an enrollment of 840 pupils, 90% of whom are black. The 

district court disapproved the board's plan because it 

maintained Piedmont as a predominantly black school. The 

court gave the board four options to desegregate all the 

junior high schools: (1) rezoning; (2) two-way transporta­

tion of pupils between Piedmont and white schools, (3) 

closing Piedmont and reassigning its pupils and (4) adopt­

ing a plan proposed by Dr. John A. Finger, Jr., a consult­

ant appointed by the court, which combined zoning with 

satellite districts. The board, expressing a preference

for its own plan, reluctantly adopted the plan proposed
; . :

by the court's consultant.
Approximately 31,000 white and 13,000 black pupils

are enrolled in 76 elementary schools. The board's plan 

for desegregating these schools is based entirely upon geo 

graphic zoning. 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. In place of the

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board's plan, the court approved a plan based on zoning, 

pairing, and grouping, devised by Dr. Finger, that re­

sulted in st.ident bodies that ranged from 9% to 38% black 

The court estimated that the overall plan which 

it approved would require this additional transportation:

No. of 
pupils

No. of 
buses

Operating
cost

Senior High 1,500 20 $ 30,000

Junior High 2,500 28 § 50,000

Elementary 9,300 90 $186,000

TOTAL 13,300 138 $266,000

In addition, the court found that a new bus cost about 

$5,400, making a total outlay for equipment of $745,200. 

The total expenditure for the first year would be about

$1 , 011, 200.

The school board computed the additional trans­

portation requirements under the court approved plan to

be:

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No. of 
PuPils-

No. of 
buses

Operating
cost

Senior Hie.h 2,497 69 $ 96,000

Junior High 4,359 84 $116,800

Elementary 12,429 269 $374,000

TOTAL 19,285 422 $586,800

In addition to the annual operating cost, the school board

projected the following expenditures:

Cost of buses

Cost of parking areas

Cost of additional personnel

$2,369,100

284,800

166,200

Based on these figures, the school board computed the total 

expenditures for the first year would be $3,406,700 under
4

the court approved plan.

4. The school board computed transportation requirements 
under the plan it submitted to be:

No. of No. of Operating
pupils buses cost

Senior High 1,202 30 $ 41,700

Junior High 1,388 33 $ 45,900

Elementary
TOTAL

2,345 41 $ 57,000

4,935 104 $144,600

(cont.) -14-



Both the findings of the district court and the 

evidence submitted by the board are based on estimates 

that rest on many variables. Past practice has shown that 

a large percentage of students eligible for bus transporta­

tion prefer to provide their own transportation. However, 

it is difficult to accurately predict how many eligible 

students will accept transportation on the new routes 

and schedules. The number of students that a bus can 

carry each day depends in part on the number of trips the 

bus can make. Scheduling two trips for a bus generally 

reduces costs. But student drivers may not be able to 

spend the time required for two trips, so that adult driver 

will have to be hired at substantially higher salaries. It 

is difficult to accurately forecast how traffic delays will

affect the time needed for each trip, for large numbers

4. (cont. from p. 14):
The board estimated that the breakdown of costs for the 
first year of operation under its plan would be:

Cost of buses .
Cost of parking areas 
Operating expenses of $144,600
Plus depreciation allow­

ance of . 31? 000

Cost of additional personnel

$589,900
56,200

175,600
43,000

The estimated total first-year costs are $864,700.

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of school buses themselves generate traffic problems that 

only experience can measure.

The board based its projections on each 54- 

passenger bus carrying about 40 high school pupils or 54 

junior high and elementary pupils for one roundtrip a day. 

Using this formula, it arrived at a need of 422 additional 

buses for transporting 19,285 additional pupils. This ap­

pears to be a less efficient operation than the present 

system which transports 23,600 pupils with 280 buses, but 

the board's witnesses suggest that prospects of heavier 

traffic justify the difference. The board also envisioned

parking that seems to be more elaborate chan chctu currenuly 

used at some schools.

In making its findings, the district court applied 

factors derived from present bus operation, such as the 

annual operating cost per student, the average number of 

trips each bus makes, the capacity of the buses -- includ­

ing permissible overloads, and the percentage of eligible 

pupils who use other forms of transportation. The district 

court also found no need for expensive parking facilities 

or for additional personnel whose costs could not be ab­

sorbed by the amount allocated for operating expenses. While

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TF*rw" — r s  rm " *1 r - ’  - n r *  r



we recognize that no estimate --whether submitted by the 

board or made by the court -- can be_absolutely correct, 

we accept as not clearly erroneous the findings of the dis­

trict court.

Opposition to the assignment of pupils under 

both the board's plan and the plan the court approved cen­

tered on bussing, which numbers among its critics both 

black and white parents. This criticism, however, cannot 

justify the maintenance of a dual system of schools. Cooper 

v. Aaron, 358 U.S. 1 (1958). Bussing is neither new nor un­

usual. It has been used for years to transport pupils to 

consolidated schools in both racially dual and unitary 

school systems. Figures compiled by the National Educa­

tion Association show that nationally the number of pupils 

bussed increased from 12 million in the 1958-59 school 

year to 17 million a decade later. In North Carolina 

54.97o of all pupils are bussed. There the average daily 

roundtrip is 24 miles, and the annual cost is over 

$14,000,000. The Charlotte-Mecklenburg School District 

presently busses about 23,600 pupils and another 5,000 

ride common carriers.



Bussing is a permissible tool for achieving 

integration, but it is not a panacea. In determining 

who should be bussed and where they should be bussed, 

a school board should take into consideration the age of 

the pupils, the distance and time required for transporta­

tion, the effect on traffic, and the cost in relation to 

the board's resources. The board should view bussing for 

integration in the light that it views bussing for other 

legitimate improvements, such as school consolidation and 

the location of new schools. In short, the board should 

draw on its experience with bussing in general -- the 

benefits and the defects -- so that it may intelligently 

plan the part that bussing will play in a unitary school

system.
Viewing the plan the district court approved for 

junior and senior high schools against these principles 

and the background of national, state, and local transporta­

tion policies, we conclude that it provides a reasonable 

way of eliminating all segregation in these schools. The 

estimated increase in the number of junior and senior high 

school students who must be bussed is about 17% of all

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pupils now being bussed. The additional pupils are in 

the upper grades and for the most part they will be going 

to schools already served by busses from other sections 

of the district. Moreover, the routes they must travel 

do not vary appreciably in length from the average route 

of the system's buses. The transportation of 300 high 

school students from the black residential area to sub­

urban 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
5"tipping" or resegregation of other schools.

5. These 300 students will be bussed a straight-lane dis­
tance of some 10 miles. The actual bus routes will be 
somewhat longer, depending upon the route chosen. A rea­
sonable estimate of the bus route distance is 12 to 13 
miles. The principal's monthly bus reports for Independ­
ence High School for the month from January 10, 1970 to 
February 10, 1970 shows the average one-way length of a 
bus route at Independence is presently 16.7 miles for the 
first trip. Buses that make two trips usually have a 
shorter second trip. The average one-way bus route, in­
cluding both first and second trips, is 11.7 miles. Thus 
the distance the 300 pupils will have to be bussed is nearly 
the same as the average one-way bus route of the students 
presently attending Independence, and it is substantially 
shorter than the system's average one-way bus trip of 17 
miles.

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We find no merit in other criticism of the plan 

for j inior and senior high schools. The use of satellite 

school zones^ as a means of achieving desegregation is not 

improper. District Courts have been directed to shape 

remedies that are characterized by the "practical flexi­

bility" that is a hallmark of equity. See Brown v. Board 

of Ed., 349 U.S. 294, 300 (1955). Similarly, the pairing 

and clustering of schools has been approved. Green v.

County School Bd. of New Kent County, 391 U.S. 430, 442 

n .6 (1968); Hall v. St. Helena Parish School Bd., 417 F.2d 

801, 809 (5th Cir.), cert, denied, 396 U.S. 904 (1969).

The school board also asserts that §§ 401(b) and 

407(a)(2) of the Civil Rights Act of 1964 [42 U.S.C. §§

2000c(b) and -6(a)(2)] forbid the bussing ordered by the 

district court.^ But this argument misreads the legislative

6. Satellite school zones are non-contiguous geographical 
zones. Typically, areas in the black core of the city are 
coupled -- but not geographically linked -- with an area 
in white suburbia.

7. Title 42 U.S.C. § 2000c(b) provides that as used in the 
subchapter on Public Education of the Civil Rights Act of 
1964:

'"Desegregation1 means the assignment of 
students to public schools and within such schools 
without regard to their race, color, religion, or 
national origin, but 'desegregation' shall not mean 
the assignment of students to public schools in 
order to overcome racial imbalance."

(cont.)
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history of the statute. Those provisions are not limita­

tions on the power of school boards or courts to remedy 

unconstitutional segregation. They were designed to re­

move any ir. plication that the Civil Rights Act conferred 

new jurisdiction on courts to deal with the question of 

whether school boards were obligated to overcome cle facto 

segregation. See generally, United States v. School Dis­

trict 151, 404 F.2d 1125, 1130 (7th Cir. 1968); United 

States v. Jefferson County Board of Ed., 372 F.2d 836, 880 

(5th Cir. 1966), aff'd on rehearing en banc 380 F.2d 385 

(5th Cir.), cert, denied, sub nom. Caddo Parish School Bd. 

v. United States, 389 U.S. 840 (1967); Keyes v. School 

Dist. No. One, Denver, 303 F.Supp. 289, 298 (D. Colo.), 

sta~y pending appeal granted, ____ F.2d ____ (10th Cir.); 7

7. (cont. from p. 20)

Title 42 § 2000c-6(a)(2) states in part:

"[Provided that nothing herein shall empower 
any official or court of the United States to 
issue any order seeking to achieve a racial 
balance in any school by requiring the trans­
portation of pupils or students from one school 
to another or one school district to another in 
order to achieve such racial balance, or other­
wise enlarge the existing power of the court to 
insure compliance with constitutional standards."

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stay vacated, 396 U.S. 1215 (1969), Uor docs North Caro­

lina's anti-bussing law present an obstacle to the plan, 

for those provisions of the statuLe in conflict with the 

plan have been declared unconstituLIonal . Swann v.

Charlotte-Mecklenburg Bd. of Ed., F. Supp. ____

(W.D.N.C. 1970).8

The district court properly disapproved the school 

board's elementary school proposal because it left about 

one-half of both the black and white elementary pupils in 

schools that were nearly completely segregated. Part of 

the difficulty concerning 'the elementary schools results 

from the board's refusal to accept the district court's 

suggestion that it consult experts from the Department of 

Health, Education, and Welfare. The consultants that the 

board employed were undoubtedly competent, but the board

8. The unconstitutional provisions are:

"No student shall be assigned or compelled to 
attend any school on account of race, creed, 
color or national origin, or for the purpose 
of creating a balance or ratio of race, re­
ligion or national origins. Involuntary bus­
sing of students in contraveneion of this 
article is prohibited, and public funds shall 
not be used for any such bussing.” N.C. Gen. 
Stat. § 115-176.1 (Supp. 196^> /

>

1
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* *J T . i *

limited their choice of remedies by maintaining each 

school's grade structure. This, in effect, restricted 

the means of overcoming segregation to only geographical 

zoning, and as a further restriction the board insisted 

on contiguous zones. The board rejected such legitimate 

techniques as pairing, grouping, clustering, and satellite 

zoning. Moreover, the board sought to impose a ratio in 

each school of not less than 60% white students. While 

a 60% - 40%> ratio of white to black pupils might be de­

sirable under some circumstances, rigid adherence to this 

formula in every school should not be allowed to defeat 

integration.

On the other hand, the Finger plan, which the 

district court approved, will require transporting 9,300 

pupils in 90 additional buses. The greatest portion of 

the proposed transportation involves cross-bussing to 

paired schools -- that is, black pupils in grades one 

through four would be carried to predominantly white 

schools, and white pupils in the fifth and sixth grades 

would be transported to the black schools. The average 

daily roundtrip approximates 15 miles through central 

city and suburban traffic.

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The additional elementary pupils who must be 

bussed represent an increase of 397, over all pupils 

presently being bussed, and their transportation will 

require an increase of about 327, in the present fleet of 

buses. When the additional bussing for elementary pupils 

is coupled with the additional requirements for junior 

and senior high schools, which we have approved, the total 

percentages of increase are: pupils, 567, and buses, 497.

The board, we believe, should not be required to undertake 

such extensive additional bussing to discharge its obliga­

tion to create a unitary school system.

- ' .• • ■ ■ • IV. :

Both parties oppose a remand. Each side is adamant 

that its position is correct -- the school board seeks total 

approval of its plan and the plaintiffs insist on imple­

mentation of the Finger plan. We are favorably impressed, 

however, by the suggestion of the United States, which at 

our invitation filed a brief as amicus curiae, that the 

school board should consider alternative plans, particularly 

for the elementary schools. We, therefore, will vacate the 

judgment of the district court and remand the case for recon­

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sideration of the assignment of pupils in the elementary 

schools, and for adjustments, if any, that this may re­

quire in plans for the junior and senior high schools.

On remand, we suggest that the district court 

should direct the school board to consult experts from 

the Office of Education of the Department of Health, Edu­

cation, and Welfare, and to explore every method of desegre 

gation, including rezoning with or without satellites, 

pairing, grouping, and school consolidation. Undoubtedly 

some transportation will be necessary to supplement these 

techniques. Indeed, the school board's plan proposed 

transporting 2,300 elementary pupils, and our remand 

should not be interpreted to prohibit all bussing. Further 

more, in devising a new plan, the board should not perpet­

uate segregation by rigid adherence to the 607o white-407o 

black racial ratio it favors.

Ifj despite all reasonable efforts to integrate 

every school, some remain segregated because of residential 

patterns, the school board must take further steps along 

the lines we previously mentioned, including a majority

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to minority transfer plan, t o AKHwyy* that no pupil is 

excluded from an integrated .u 'vm\ v'w the basis of ract .

Alexander v. Holmes y of Ed>j 395

U.S. 19 (1969), and Carter v. VI*M  VVUciana School Bd., 

396 U.S. 290 (1970), emphasis* M um Hthool boards must 

forthwith convert from dual to Ui\h,U y systems. In Nes- 

bit v. Statesville City Bd. of: f',d, , / , F>2d 1040 (4th

9

Cir. 1969), and VJhittenberg v, 'U'htinl Dist. of Greenville

9. The board's plan provides;

"Any black student wilI I 
transfer only if the sr| 
is originally assigned ! 
per cent of his race <1 
he is requesting to at 
30 per cent of his roe 
space. Any white stud 
to transfer only if 1 li 
is originally assigned 
per cent of his race u 
is requesting to atten 
per cent of his race n

in 
I e
e
e 11
15
li
ud
d
ud

“ I'n 1 inftted to 
''"I li» which he 
1'■ * "lure than 30 
I I I lie school 

• nM less thanud
‘""I 111\m available 
* '',ll| be permitted
,u hno | to which he 
'Ui inure than 70 
II I lie school he 

luut less than 70

This clause, which was ̂ des | (() prevent tipping or
resegregation, would be suitable , , fl(1 schoois in the
system were integrated. But , )|(? board envisions some
elementary schools will remain /(eMi|y black, it unduly
restricts the schools to whirl) pu,,||t, these schools can
transfer. It should be amended ( / ( j j ow tbese elementary 
pupils to transfer to any sclmnl |,, v/} 1 ich their race is a 
minority if space is available,

\

-20-



County, ---- F.2d ---- (4th Cir. 1970), we reiterated that
immediate reform is imperative. We adhere to these prin­

ciples, and district courts in this circuit should not con­

sider the stays which were allowed because of the exception.il 

nature of this case to be precedent for departing from the

directions stated in Alexander, Carter, Nesbit, and Whitten- 
berg. . •

Prompt action is also essential for the solution 

of the remaining difficulties in this case. The school 

board should immediately consult with experts from HEW 

and file its new plan by June 30, 1970. The plaintiffs 

should file their exceptions, if any, within 7 days, and 

the district court should promptly conduct all necessary 

hearings so that the plan may take effect with the opening 

of school next fall. Since time is pressing, the district 

court s order approving a new plan shall remain in full 

force and effect unless it is modified by an order of this 

court. After a plan has been approved, the district court 

may hear additional objections or proposed amendments, but 

the parties shall comply with the approved plan in all

-27-



respects while the district court considers the suggested 

modifications. Cf. Nesbit v. Statesville City Bd. of Ed., 

418 F.2d 1040, 1043 (4th Cir. 190).

Finally, we approve the district court's inclu­

sion of Dr. Finger's consultant fee in the costs taxed 

against the board. See In the Matter of Peterson, 253 

U.S. 300, 312 (1920). We caution, however, that when a 

court needs an expert, it should avoid appointing a person 

who has appeared as a witness for one of the parties. But 
the evidence discloses that Dr. Finger was well qualified, 
and his dual role did not cause him to be faithless to the 

trust the court imposed on him. Therefore, the error, 

if any, in his selection, was harmless.

We find no merit in the other objections raised 

by the appellants or in the appellees' motion to dismiss 

the appeal. The judgment of the district court is vacated, 

and the case is remanded for further proceedings consistent 

with this opinion.

-28-



SOBELOFF, Circuit Judge, with whom WINTER, Circuit Judge, 
joins, concurring in part and dissenting in part:

Insofar as the court today affirms the District Court's 

order in respect to the senior and junior high schools, I 

concur. I dissent from the failure to affirm the portion 

of the order pertaining to the elementary schools.

I ' ' ' :

THE BASIC LAW AND THE PARTICULAR FACTS 

All uncertainty about the constitutional mandate of 

Brown v. Board of Education. 347 U.S. 483 (1954) and 349 

U.S. 294 (1955), was put to rest when in Green v. County 

School Board of New Kent County the Supreme Court spelled 

out a school board's "affirmative duty to take whatever 

steps might be necessary to convert to a unitary system in 

which racial discrimination would be eliminated root and 

branch," 391 U.S. 430, 437-438 (1968) . "Disestablish [ment 

of] state-imposed segregation" (at 439) entailed "steps 

which promise realistically to convert promptly to a system 

without a 'white* school and a 'negro' school, but just 

schools" (at 442). If there could still be doubts they were

29

T.



answered this past year. In Alexander v. Holmes County 

Board of Education, the Court held that " [u]nder explicit 

holdincs of this Court the obligation of every school 

district is to terminate dual school systems at once and 

to operate now and hereafter only unitary schools," 396 

U.S. 19, 20 (1969). The command was once more reaffirmed 

in Carter v. West Feliciana School Board, 396 U.S. 290 

(1970), requiring "relief that will at once extirpate any 

lingering vestiges of a constitutionally prohibited dual 

school system." (Harlan, J., concurring at 292).

We face in this case a school district divided along 

racial lines. This is not a fortuity. It is the result, 

as the majority has recognized, of government fostered 

residential patterns, school planning, placement, and, 

as the District Court found, gerrymandering. These factors 

have interacted on each other so that by this date the black 

and white populations, in school and at home, are virtually 

entirely separate.

As of November 7, 1969, out of 106 schools in the 

system, 57 were racially identifiable as white, 25 were

30



racially identifiable as black.^ of these, nine were all 

white schools and eleven all black. Of 24,714 black students

in the system, 16,000 were in entirely or predominantly black 
schools.

There are 76 elementary schools with over 44,000 pupils. 

In November 1969, 43 were identifiable as white, 16 as black, 

with 13 of the latter 98% or more black, and none less than

65%. For the future the Board proposes little improvement. 

There would still be 25 identifiably white elementary schools 

and approximately half of the white elementary students

would attend schools 85 to 100% white. wine scnools would

remain 83 to 100% black, serving 6,432 students or over half 

the black elementary pupils.

To call either the past or the proposed distribution a 

"unitary system" would be to embrace an illusion.* 2 And the

1* the entire system, 71% of the pupils are white,
29% of the pupils are black. The District Judge deemed 
a school having 86% or greater white population identifiable 
as white, one with 56% or greater black population identi­
fiable as black.

2. In its application to us for a stay pending appeal, 
counsel for the School Board relied heavily on Northcross v.
Board of Education of Memphis, ___ F.2d ___ (6th Cir. 1970),
as a judicial ruling that school assignments based on resi­
dence are constitutionally immune. The defendant tendered

(footnote cont'd on page 4)

31



majority does not contend that the system is unitary, for 
it holds that "the district court properly disapproved the 
school board's elementary school proposal because it left 
about one-half of both the black, and white elementary pujils 
in schools that were’nearly completely segregated." The 
Board's duty then is plain and unarguable: to convert to
a unitary system. The duty is absolute. It is not to be 
tempered or watered down. It must be done, and done now.

II

THE COURT-ORDERED PLAN

A. The Necessity of the Court-Ordered ..Plan
The plan ordered by. the District Court works. It does 

the job of desegregating the schools completely. This 
"places a heavy burden upon the board to explain its 
preference for an apparently less effective method.

Green, supra at 439. '
The most significant fact about the District Court's

plan is that it— or one like it— is the only one that can 

(footnote 2 cont'd from page 3)

us a statistical comparison of pupil 
with pupil population by attendance 
school system.

enrollment by school 
area for the Memphis

Since then the Supreme Court in Northcross has ruled 
that the Court of Appeals erred insofar as it held tha 
Memphis board "is not now operating a 'dual school system 
***." 38 L.W. 4219.

32

• *1



work. Obviously, when the black students are all on one 

side of town, the whites on the other, only transportation 

will bring them together. The District Judge is quite 
explicit:

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 pro­
viding (and continuing to provide) bus or 
other transportation for thousands of children.

plans and all variations of plans con­
sidered for this purpose lead in one fashion 
or another to that conclusion.

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.

The only suggestion that there is a possible alterna­

tive middle course came from the United States, participat­

ing as amicus curiae. Its brief was prefaced by the 

following revealing confession:

We understand that the record in the case 
is voluminous, and we would note at the outset 
that we have been unable to analyze the record 
as a whole. Although we have carefully examined 
the district court's various opinions and orders, 
the school board's plan, and those pleadings readily 
available to us, we feel that we are not conversant



with all of the factual considerations which 
may prove determinative Of this appeal.
/ccordingly, we here attempt, not to deal 
extensively with factual matters, but rather 
to set forth some legal considerations which 
may be helpful to the Court.

Notwithstanding this disclaimer, the Government went on 

to imply in oral argument— and has apparently impressed 

on this court--that HEW could do better. No concrete 

solution is suggested but the.Government does advert to 

the possibility of pairing and grouping of schools. Two 

points stand out. First, pairing and grouping are pre­

cisely what the Finger plan, adopted by the District 

Court, does. Second, in the circumstances of this case, 

these methods necessarily entail bussing.

I am not "favorably impressed" by the Government's 

performance. Its vague and noncommital representations 

do little but obscure the real issues, introduce uncertainty

and fail to meet the "heavy burden" necessary to overturn
3the District Court's effective plan. 3

3. A federal judge is not required to consult with 
the Department of Health, Education and Welfare on legal 
issues. What is the constitutional objective of a plan, 
and whether a unitary system has been or will be achieved, 
are questions for the court. HEW's interpretation of the
(footnote cont'd on page 7)

3^



B. The Feasibility of the Plan

Of course it goes without saying that school boards

(footnote 3 cont'd from page 6)

constitutional command does not bind the courts.

[W]hile administrative interpretation may lend 
a persuasive gloss to a statute, the definition 
of constitutional standards controlling the 
actions of states and their subdivisions is 
peculiarly a judicial function.

Bowman v. County School Board of Charles City County,
382 F.2d 326 (1967).

Although the definition of goals is for the court,
HEW may be able to provide technical assistance in over­
coming the logistical impediments to the desegregation 
of a school system. Thus it was quite understandable 
that at the outset of this case the District Court in- 

the Board to consult with HEW. Desegregation of 
this large educational system was likely to be a complex 
and administratively difficult task, in which the ex­
pertise of the federal agency might be of help. However, 
after a substantial period of time and the beginning of 
a new school year, it became clear that the Board had no 
intention of devising a meaningful plan, much less seek­
ing advice on how to do so. At that point (December 1969) 
with the need for speed in mind, the Judge appointed an 
expert already familiar with the school system to work 
with the school staff in developing a plan.

Whether to utilize the assistance of HEW is ordinarily 
up to the district judge. Consultation in formulating the 
mechanics of a plan is not obligatory. The method used by 
the Judge in this case was certainly sufficient. Moreover, 
now that a plan has been created and it appears that there 
are no real alternatives, a remand for HEW's advice seems 
an exercise in futility.

35



are not obligated to do the impossible. Federal courts 

do not joust at windmills. Thus it is proper to ask 

whether a plan is feasible, whether it can be accomplished.

There is no genuine dispute on this point. The plan is 

simple and quite efficient. A bus will make one pickup 

in the" vicinity of the children's residences, say in the 

white residential area. It then will make an express trip 

to the inner-city school. Because of the non-stop feature, 

time can be considerably shortened and a bus could make a 

return trip to pick up black students in the inner city and 

to convey them to the outlying school. There is no evidence 

of insurmountable traffic problems due to the increased 

bussing.4 Indeed, straight line bussing promises to be

The only indication I have encountered that a serious 
traffic problem will be occasioned by the additional bussing 
is found in an affidavit by the City Director of Traffic Engi­
neering. His statement is based on the exaggerated bus esti­
mate prepared by the Board and rejected by the District Court. 
See note 5, infra. Moreover, he appears to have relied to 
q large extent on the erroneous assumption that under the plan 
busses would pick up and discharge passengers along busy 
thoroughfares, thus causing "stop—and—go traffic of slow 
moving school busses in congested traffic.'

A later affidavit of the same official, filed at the re­
quest of the District Court, affords more substantial data.
It reveals that the total estimated number of automobile trips . 
per day in Charlotte and Mecklenburg County (not including 
internal truck trips) is 869,604. That the 138 additional 
busses would gravely aggravate the congestion is dubious, to 
say the least.

36



quicker. The present average one-way trip is over 15 miles 

and takes one hour and fourteen minutes; under the plan the 

average one-way trip for elementary students will be less 

than seven miles and 35 minutes. The cost of all of the 

additional bussing will be less than one week's operating 

budget.^

C . The Standard of Review

In Brown II, the Supreme Court charged the district 

courts with the enforcement of the dictates of Brown I.

The lower courts were to have "a practical flexibility in 

shaping * * * remedies." 349 U.S. at 300. Thus, in 

subsuming these cases under traditional equity principles, 5

5. The District Judge rejected the Board's inflated 
claims, and found that althogether the Finger plan would 
bus 13,300 new students in 138 additional busses. The 
Board had estimated that 19,285 additional pupils would 
have to be transported, requiring 422 additional busses. 
This estimate is disproportionate on its face, for 
presently 23,600 pupils are transported in 280 busses.
As indicated above, the direct bus routes envisioned by 
the Finger plan should accomplish increased, not diminished, 
efficiency. The court below, after close analysis, dis­
counted the Board's estimate for other reasons as well, 
including the "very short measurements" used by the Board 
in determining who would have to be bussed, the failure 
of the Board to account for round-trips, staggering of 
opening and closing hours, and overloads.

37



the Supreme Court brought the' desegregation decree v/ithin 

the rule that to be overturned it "must [be] demonstrate [d] 

that there was no reasonable basis for the District Judge's 

decision." United States v. W. T. Grant Co.. 345 U.S. 629, 

634 (1953). This court has paid homage to this maxim of 

appellate review when, in the past, a district judge has 

ordered less than comprehensive relief. Bradley v. School 

Board of the City of Richmond. 345 F.2d 310, 320 (1965), 

revl<3/ 382 U.S. 103 (1965). What is called for here is 

similar deference to an order that would finally inter 

the dual system and not preserve a nettlesome residue. As 

the Supreme Court made clear in Green, supra, those who 

would challenge an effective course of action bear a 

"heavy burden." The Finger plan is a remarkably economical 

scheme when viewed in the light of what it accomplishes. 

There has been no showing that it can be improved or 

replaced by better or more palatable means. It should, 

then, be sustained.

38



Ill

OBJECTIONS RAISED AGAINST TIIP: COURT--ORDERED PLAN 
The "Illegal" Objective of the Plan 
My Brother Bryan expresses concern about the plan, 

regardless of cost, because it undertakes, in his view, 

an illegal objective; "achieving racial balance." What­

ever might be said for this view abstractly or in another 

context, it is not pertinent here. We are confronted in 

this case with no question of bussing for mere balance 

unrelated to a mandatory constitutional goal. What the 

District Court has ordered is compliance with the 

constitutional imperative to disestablish the existing 

segregation. Unless we are to palter with words, de­

segregation necessarily entails integration, that is to say 

integration in some substantial degree. The dictum to 

the contrary in Briggs v. Elliott. 132 F. Supp. 776 

(E.D.S.C. 1955), was rejected by necessary implication 

by the Supreme Court in Green, supra, and explicitly by 

this court in Walker v. County School Board of Brunswick Co. 
413 F.2d 53, 54 n.2 (4th Cir. 1969).

As my Brother Winter shows, there is no more suitable 

way of achieving this task than by setting, at least

39



initially, a ratio roughly approximating that of the racial 

population in the school system. The District Judge adopted 

this ad hoc measurement as a starting guide, expressed a 

willingness to accept a degree of modification,6 and de- 
parted from it where circumstances required.

B * —he "Unreasonableness" of the Plan
The majority does not quarrel with the plan’s objective, 

nor, accepting the findings of the District Court, does it 

really dispute that the plan can be achieved. Rather, we 

are told, the plan is an unreasonable burden.

This notion must be emphatically rejected. At bottom 

it is no more than an abstract, unexplicated judgment--* 

conclusion of the majority that, all things considered, 

desegregation of this school system is not worth the price.

This is a conclusion neither we nor school boards are 
permitted to make.

that 6‘ The Di3trict Jud9e wrote in his December 1 order

will not^ ratf°S °f pupils in particular schools 
JLll not be set. if the board in one of its three 
tries had presented a plan for desegregation the
inUpuPU UrfthaVe S°Ught WaYS tD apPr°Ve variationsin pupil ratios. in default of any such plan from 
the school board, the court will start with the
23°US a ; ° 2 gi”ally advanced ^  the order of April 
ra^-o fPforts sh°nld 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.

^0

nw*"Tir?



In making policy decisions that are not constitutionally 
' d;LCtated' state authorities are free to decide in their 
discretion that a proposed measure is worth the cost in­
volved or that the cost is unreasonable, and accordingly 
they may adopt or reject the proposal. This is not such 
a case. Vindication of the plaintiffs' constitutional 
right does not rest in the school board's discretion, as 
the Supreme Court authoritatively decided sixteen years 
ago and has repeated with increasing emphasis.' It is not 
, for the Board or this court to say that the cost of com- 
pliance with Brown is "unreasonable."

That a subjective assessment is the operational part 

of the new ''reasonableness" doctrine is highlighted by a 

study of the factors the majority bids school boards take 

into account in making bussing determinations. "[a ] school 

board should take into consideration the age of the pupils, 

the distance and time required for transportation, the 

effect on traffic, and the cost in relation to the board's 

resources." But as we have seen, distance and time will 

be comparatively short, the effect on traffic is undemonstrate 

the incremental cost is marginal. As far as age is con­

cerned, it has never prevented the bussing of pupils in

4 l



Charlotte-Mccklenburg, or in North Carolina generally, where 

70.9% of all bussed students are elementary pupils.

If the transportation of elementary pupils were a 

novelty sought to be introduced by the District Court, I 

could understand my brethren’s reluctance. But, as is 

conceded, bussing of children of elementary school age is 

an established tradition. Bussing has long been used to 

perpetuate dual systems.7 More importantly, bussing is a 

recognized educational tool in Charlotte—Mecklenburg and 

North Carolina. And as the National Education Association 

has admirably demonstrated in its brief, bussing has played 

a crucial role in the evolution from the one-room school- 

house in this nation. Since the majority accepts the 

legitimacy of bussing, today’s decision totally baffles me.

In the final analysis, the elementary pupil phase of 

the Finger plan is disapproved because the percentage

7. For some extreme examples, see: School Board of
Warren County v. Kelly, 259 F .2d 497 (4th Cir. 1958); 
Corbin v. County School Bd. of Pulaski County, 117 F.2d 
924 (4th Cir. 1949); Griffith v. Bd. of Educt of Yancey 
County, 186 F. Supp. 511 (W.D.N.C. 1960); Gains 
v. County School Bd. of Grayson County, 186 F. Supp. 753 
(W.D.Va. 1960), stay denied, 282 F.2d 343 (4th Cir. 1960). 
See also, Chambers v. Iredell Co., F.2d (4th Cir.
1970) (dissenting opinion) .

h2



4.

increase in  ̂ „ ,— ••v Xo somehow determined to be too onerous.
Why this is so ^not told. The Board plan itself would
bus 5000 addi~' v- _ pupils. The fact remains that in North
Carolina 55% c- • , , .pupils are now being bussed. Under the

Finger plan, a-- ̂ -xiriately 47% of the Charlotte-Mecklenburg
student populat' x- .i D aid be bussed. This is well within
the existing ., , . ̂ "  —  throughout the state.

The majoritro* <; ,- - proposal is inherently ambiguous. The
court-ordered nlrr- ' - c-, • ̂ t.* Said to be unreasonable. Yet the
School Board's cv- , , .oi has also been disapproved. Does
the decision— tho- ~ v ^  • . ." - linger plan is unreasonable— depend
on the promise  ̂ ,^^ ' 1 intermediate course is available?
Would the amount -- . . , .—  segregation retained m  the School

8

8. The majocrc 
portion of the clir 
pupils, 32% increr< 
is said, would r e m  
increase.

calculates the elementary school 
-ean a 39% increase in bussed 
- busses; the whole package, it 
a. 56% pupil increase and 49% bus

These figure 
story. if one ir.o 
presently beincr nr: 
commercial lines 
would not appear r 
elementary schools 
increment, the whs.

^ —ccurate but do not tell the whole 
"within the number of students 

•^xrrrted those that are bussed on
■‘-hej increase in pupils transported 

^ 3 5  large. Thus the plan for 
3— r entail a 33% bussed pupil 
^"3rger plan, 47%.

43



Board's plan be avowedly sanctioned if it were recognized 

that nothing short of the steps delineated in the District 

Court's plan will suffice to eliminate it? Since there is 

no practicable alternative, must we assume that the majority 

is willing to tolerate the deficiencies in the Board plan?

These questions remain unresolved and thus the ultimate 

meaning of the "reasonableness" doctrine is undefined. 

Suffice it to say that this case is not an appropriate one 

in which to grapple with the theoretical issue whether the 

law can endure a slight but irreducible remnant of segregated 

schools. This record presents no such problem. The remnant
Of 2TclC."ioll"lw i rlonf i -P-J ->—u — -LU elementarv schools 4-̂
District Court addressed itself, encompasses over half 

the elementary population. This hrge fraction cannot be

c lied slight, nor, as the Finger plan demonstrates, is 
it irreducible.

I am even more convinced of the unwisdom of reaching 

out to fashion a new "rule of reason," when this record is 

far from requiring it, because of the serious consequences 

it would portend for the general course of school 

desegregation. Handed a new litigable issue-the so-called 

reasonableness of a proposed plan-school boards can be

44

' '  'T T W 1*** —



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 system 

not reasonably eradicable. Even more pernicious, the 

new-born rule furnishes a powerful incentive 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.

Moreover, the opinion catapults us back to the time,
thought passed, when it was the fashion to contend that
the inquiry was not how much progress had been made but
the presence or absence of good faith on the part of the
board. Whether an "intractable remnant of segregation-

can be allowed to persist, apparently will now depend in

g measure on a slippery test: an estimate of whether
the Board has made "every reasonable effort to integrate

9 -
the pupils under its control."

9- Both in its characterization of t-he . .
its treatment of the case the nv-,in ? , facts and ln
actions of this Board have ^ ma3°tity implies that the 
4. . s i3oarcl have been exemplary T f^«i 4-to register my dissent- ^  P y ' 1 *eel constrainedmy dissent from this view although on no account
(cont'd p. 18)

45

T"."" " ’S" f



The Supreme Court having barred further delay by its 
insistent emphasis on an immediate remedy, we should not 
lend ourselves to the creation of a new loophole by 
attenuating the substance of desegregation.

9. (cont'd from p. 17)

the^aS:rdCe1 enedst0onth?hLr°CsSie“ 0n ^

Charlo«e-M1c\le;b“ fsc\\\rbLrtrL?1Segaen ared ^He found it unnecessary at t-hat * R e g a l l y  segregated.the Board hirl li k ? ? time t 0 decide whethertne Board had deliberately gerrymandered to perpetuate tt ^system since he believed that the . , P rpetuate the du<
promote substantial changes The Ron ,°rder to foll°" would
May 15 to devise a „l „ I? ™  was glven untils L - u j .  plan eliminatrng faculty and student

A majority of the Board voted not to taVe 

below_ y ^-cording to the court

No express guidelines were given the superintendent 
wever, the views of many members expressed at the" 

meeting were so opposed to serious and substantial 
.̂ segregation that everyone including the super­
intendent could reasonably have concluded as the 
court does, that a ■■minimal" plan „a£ wha;
a prelufer; the "Plan" was essentiallya prelude to anticipated disapproval and appeal.

* * * * * * *

The staff were never directed to do 
on re-drawing of school zone lines,

(cont'd p. 1 9 )

any serious work 
pairing of schools,

M6



L .

(cont'd from p. 18)
combining zones, grouping of schools, conferences 
with the Department of Health, Education and 
Welfare, nor any of the other possible methods 
of making real progress towards desegregation.
The superintendent's plan was submitted to the Board 

on May 8 . it was quite modest in its undertaking. Never­
theless, the Board "struck out virtually all the effective 
provisions of the superintendent's plan." The plan 
ultimately filed by the Board on May 28 was "the plan 
previously found racially discriminatory with the addition 
of one element— the provision of transportation for 
[majority to minority transfers.]" The Board also added 
a rule making a student who transfers to a new high school 
ineligible for athletics for a year. As the District Judge found,

[t]he effect of the athletic penalty is obvious—  
it discriminates against black students who may 
v;ant to transfer and take part in sports, and is no 
penalty on white students who show no desire for such transfers.
In the meantime the Board for the first time refused 

to accept a recommendation of the superintendent for the 
promotion of a teacher to principal. The reason avowed was 
that the teacher, who was black and a plaintiff in the 
suit, had publicly expressed his agreement with the District 
Court order. The job was withheld until the prospective 
appointee signed a "loyalty oath."

The District Judge held a hearing on June 16 and ruled 
on June 20. He declined to find the Board in contempt 
but did note that"[t]he board does not admit nor claim that it has any positive

(cont'd on p. 2 0)
47



1

(cont'd from page 19)

ophy."' 7 “ y trUe neighborhood school philos-

Di strict Judge was^leased t^learn that ^ t h e V h 3"! ThE has reversed its field anH ion at the Sch°o1 Board
constitutional duty to desegregatrpupils^teach™ 3^ 6

“  1 st the^arliest^ossible

“ ereby'sevefa^rwacl

= - ■  = a z  ^ I s l f  L H « ~ 7 “
complete desegregation in November. P °r

black nuDilq" l I instead of the promised 4245 pupils had been transferred (t ■ c.revealed that •, * (Later informationarea that the number was onlv 767  ̂ pllvrt found that Y ] Furthermore, he

accoprtheT, “ ficated that lts combers 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
a V v ^ - n f 1 of, 1970- They have also demonstrated 
a yawning gap oetween predictions and performance.

On November 17, the Board filed a n l m  T +. „ , . further consideration ot • • d plan. it 'discarded
transporting. ■■ ^
provrded that white students would not be assigned to
S T S ;* ::reT̂ :y„ t v s  ^his was, as the District Court found, a one-
(cont'd p. 21)

48



n ^ e f f o i t ^ ' V 1™  °f th° faCt that :ho plan contemplated blacks The desegregate schools with greater than 40%

to the JuIv°29an1aranSfhrred t0 °Utlying schools Pursuant
th.

part o f  f aC® o f  t h ± S  t 0 t a l  l a c k  o f  cooperation on the
expert t o ^  ' the court was compelled to appoint an,P devise a plan for desegregation. The Finqerplan was the result. linger

It appears from the record that on most issues the 
Board^was sharply divided. of course I mean to cast no 
aspersions on those members— and th»r« ___ __-
theeahthe B°ard f°rthrightly to shoulder'"its &duty. ̂ But
that ?hVe PeCltal °f eVents demonstrates beyond doubt that this Board, through a majority of its members f a r
from making "every reasonable effort" to f u l f i l l s  
constitutional obligation, has resisted and delayed 
desegregation at every turn. Y a

(cont'd from page 20)

49



Albert V. Bryan, Circuit t ,
■ . cult J^ e ,  dissenting in part;

The Court commands the Chan,
■ °f ^cation to provide busing of ' ^ ^ ' ^ ‘-burg Board 

^  U  —  -  * •  Phtuc schools
r r - 1

raClal Jiaî  is the Objective. Busing " b ^ " 3
imbalance is not as vgt; °  racial
f°~» bo matter the prior or °bll8atlon- There-
thlS ^  °ther reaoo„s, a„d r e ^ l L ^ ^  ^  ^  ^

"  dUPUCati°" -  « ’e bus routes, 1 th "
B°t Stand. th "k the injunction can-

Without Constitutional ordain
^  Federal courts to order the B P°“er “

1 -  bo authority th i ?  ^  ^  "  “ * “  -
implications or Brown v B Const“ ««°n, or in the
Bo* its derivatives, repair" ^  ^  ^

‘o apportion the schoo! bodies ln ^  ^  *° endeaTOr
"hole school system. raClal ratio °f the

The majority-opinion presunno
^  aiS° hBBinn to achieve it, c - Cial balah=e,

UUt W ‘e ChlSI' Justice or the V n U e T Z l T ^  ’
seated inquiry on whether " 63 ^  reCen‘ly sug-nether any particular racial h„ 'racial balance must

I

i

50

-  -■ ! iiM y \ "fw & pm



be achieved in the schools; . . . [and] to what extent trans­
portation may or must be provided to achieve the ends sought 
by prior holdings of the Court." See his memorandum appended 
to Northcross v. Board of Education of the Memphis, Tennessee, 
City Schools, ___US___, 38 USLW 4219, 4220 (March 9, 1970).*

Even construed as only incidental to the 1964 Civil 
Rights Act, this legislation in 42 United States Code § 2000c-6 
is necessarily revealing of Congress' hostile attitude toward 
the concept of achieving racial balance by busing. It unequivo­
cally decried in this enactment "any order [of a Federal court] 
seeking to achieve a racial balance in anv school ĥ r 
the transportation of pupils or students from one school to 
another . . .  to achieve such racial balance . . . .11

I would not, as the majority does, lay upon Charlotte- 
Mecklenburg this so doubtfully Constitutional ukase.

* On remand the District Court in Northcross has held there 
was no Constitutional obligation to transpor pupils to over­
come a racial imbalance. Northcross v. Board of Education of
the Memphis City Schools, ___FS___ (W.D.Tenn., May 1, 1970)
(per McRae, J.). In the same Circuit, see, too, Deal v. 
Cincinnati Board of Education, 419 F2d 1387 (6 Cir. 1969).

51



WINTER, Circuit Judge, concurring in part and
dissenting in part:

I would affirm the order of the district court 
*in i.ts entirety.

In a school district in which freedom of choice has 
patently failed to overcome past state policy of segregation 
and to achieve a unitary system, the district court found the 
reasons for failure. They included resort to a desegregation 
plan based on geographical zoning with a free transfer provi­
sion, rather than a more positive method of achieving the 
constitutional objective, the failure to integrate faculties, 
the existence of segregated racial patterns partially as a 
result of federal, state and local governmental action and 
the use of a neighborhood concept for the location of schools 
superimposed upon a segregated residential pattern. Correct-

Certainly, if the district court's order 
with respect to high schools and junior 
high schools is affirmed, the district 
court should not be invited to recon­
sider its order with respect to them.
The jurisdiction of the district court 
is continuing and it may always modify 
its previous orders with respect to any 
school upon application and for good 
cause shown.

52

v



ly the majority accepts these findings under established 

principles of appellate review. To illustrate how govern­

ment-encouraged residential segregation, coupled with the 

discriminatory location and design of schools, resulted in 

a dual system, the majority demonstrates that in this lo­

cality busing has been employed as a tool to perpetuate 

segregated schools.

In complete compliance with Carter v. West Feli­

ciana—School Board, _____ U. S. _____ (1970) ; Alexander v.

Holmes County Bd. of Ed.. _____ U. S. _____ (1969); Green

v. School Bd. of New Kent County. 391 U. S. 430 (1968), and 

^Q^roe v • Bd. of Comm1 rs. , 391 U. S. 450 (1968) the major­

ity concludes that the existing high school and junior high 

school systems must be dismantled and that the constitution­

al mandate can be met by the use of geographical assignment, 

including satellite districts and busing.

The majority thus holds that the Constitution re­

quires that this dual system be dismantled. It indicates 

its recognition of the need to overcome the discriminatory 

educational effect of such factors as residential segrega­

tion. It also approves the use of zones, satellite districts 

resultant busing for the achievement of a unitary system



-  * *  W>.- ^ f  - r rf4t

at the high school and junior high school levels. Neverthe-
V

less, the majority disapproves a similar plan for the deseg­
regation - j f the elementarv schools on the ground that the 
busing involved is too onerous. I believe that this ground 
is insubstantial and untenable.

At the outset, it is well to remember the seminal 
declaration in Brown v. Board of Education (Brown II), 349 
U. S. 294, 300 (1955), that in cases of this nature trial 
courts are to "be guided by equitable principles" in 
"fashioning and effectuating decrees." Since Brown II the 
course of decision has not departed from the underlying 
premise that this is an equitable proceeding, and that the 
district court is invested with broad discretion to frame 
a remedy for the wrongful acts which the majority agrees 
have been committed. In Green v. School Board of New Kent 
County, 391 U. S. at 438, the Supreme Court held that the 
district courts not only have the "power" but the "duty to 
render a decree which will, so far as possible, eliminate 
the discriminatory effects of the past, as well as bar like 
discrimination in the future. " Dis* rict courts were directed 
to "retain jurisdiction until it is clear that disestablish-

5>4

■ w 1"’*



aL the high school and junior high school levels. Never the-
\

less, the majority disapproves a similar plan for the deseg­
regation of the elementarv schools on the ground that the 
busing involved is too onerous. I believe that this ground 
is insubstantial and untenable.

At the outset, it is well to remember the seminal 
declaration in Brown v. Board of Education (Brown II), 349 
U. S. 294, 300 (1955), that in cases of this nature trial 
courts are to "be guided by equitable principles" in 
"fashioning and effectuating decrees." Since Brown II the 
course of decision has not departed from the underlying 
premise that this is an equitable proceeding, and that the 
district court is invested with broad discretion to frame 
a remedy for the wrongful acts which the majority agrees 
have been committed. In Green v. School Board of New Kent 
County, 391 U. S. at 438, the Supreme Court held that the 
district courts not only have the "power" but the "duty to 
render a decree which will, so far as possible, eliminate 
the discriminatory effects of the past, as well as bar like 
discrimination in the future." Dis*rict courts were directed 
to "retain jurisdiction until it is clear that disestablish-

54

>***Sjr«* *'-v : T O T



ment has been achieved. Raney v. Board of Education. 391

U. S. 443, 449 (1968). Where it is necessary district 

courts may even require local authorities "to raise funds 

adequate to reopen, operate, and maintain without racial 

discrimination a public school system." Griffin v. School 

Board, 377 U. S. 218, 233 (1964). Thus, the Supreme Court 

has made it abundantly clear that the district courts have 

the power, and the duty as well, to fashion equitable reme­

dies designed to extirpate racial segregation in the public 

schools. And in fashioning equitable relief, the decree of 

a district court must be sustained unless it constitutes a 

clear abuse of discretion. United States v. V,T. T. Grant Co., 

345 U. S. 619 (1953).

Busing is among the panoply of devices which a 

court of equity may employ in fashioning an equitable remedy 

in a case of this type. The district court's order required 

that "transportation be offered on a uniform non-racial basis 

t-o children whose attendance in any school is necessary

to bring about reduction of segregation, and who lives far­

ther from the school to which they are assigned than the 

determines to be walking distance. " It found as a

55



fact, and I accept its finding, that "there is no way" to
.

j. desegregate the Charlotte schools in the heart of the black

community without providing such transportation.

The district court's order is neither a substan-1j
tial advance nor extension of present policy, nor on thisi
record does it constitute an abuse of discretion. This 

school system, like many others, is now actively engaged in 

the business of transporting students to school. Indeed, 

busing is a widespread practice in the United States. U. S. 

Commission on Civil Rights, Racial Isolation in the Public 

Schools 180 (1967). Between 1954 and 1967 the number of 

pupils using school transportation has increa.sed from 

9,509,699 to 17,271,718. National Education Association,

National Commission on Safety Education, 1967-68 Statistics 

on Pupil Transportation 3.

Given its widespread adoption in American educa­
tion, it is not surprising that busing has been held an ac­

ceptable tool for dismantling a dual school system. In 

United States v. Jefferson County Board of Education, 380 

F.2d 385, 392 (5 Cir.)(en banc), cert, den. sub. nom.

Caddo Parrish School Bd. v. United States, 389 U. S. 840
* i' »

\

56

1

rrr^y ' W T ' r y r * — JBpr m -' WTV '^ 1



(1967). the court ordered that bus service which was "gener- 

p ovidod must bo routed so as to transport every student 

"to the school to which he is assigned" provided that the 

school "is sufficiently distant from his home to make him 

eligible for transportation under generally applicable trans­

portation rules. " Similarly, in Unit^  states v. Schod 

1=1. 286 F. s. 786, 799 (N.D. 111. 1968), aff'd.. 404 F.2d 

H25 (7 Cir. 1968), the court said that remedying the ef­

fects of past discrimination required giving consideration to 

"racial factors" in such matters as "assigning students" and 

providing transportation of pupils. m  addition, the Eighth

Cir°Uit in 2efflE_lb_Beasley, _____ F.2d _____ (8 cir. 19?0) _

recognized that busing is "one possible tool in the implemen­

tation of unitary schools." And. finally, Griffin v.

Board, supra, makes it clear that- +-v,Q ^clear that the added cost of necessary
transportation does not render a plan objectionable.

1 turn, then, to the extent and effect of busing

of elementary school students as ordered by the district 
court.

Presently, 23,600 students - 21% of the total 

population - are bused, excluding some 5,000 pupils

57



‘ ‘ - ' - . - A * .

who travel to and from scho>i i .'•̂ 1 by public transportation.
school board operates 280 ™'u""> The average cost of fcus.ir.c
students is $39.92 per student- . .^ n*-» which one-half is born,:
"hy the state and one-half h,- »> .the board. Thus, the average
annual cost to the board is vX'v>nt- « n  nn 4 , .'iocs.c. $2 0.00 per student. The

total annual cost to the bo v  > ,busing is approximate!^.-
$ 5 0 0 , 0 0 0 . 0 0  o u t  o f  a t o t a lotal operating budget of $51,000,000.00.
The cost of busing is thus 1o/ - .. , . _" '-ban l / o  of the total operating
budget and an even smaller ".x..... *_.--eitage of the $57,700,000.00
which this school district o\-v- < - _on the aggregate of oper­
ations, capital outlay and d , . ̂Service and this cost also
represents less than ~ * -v . .-- ■— t -deal funds which together
with state and federal mone\- ___, , ,- —  tute the revenue available
annually to the school board.

The total number c-~ ^ .- ^ — JB^ntary school pupils pres­
ently bused does not annearappear, m d e r  the district court’s
order an additional 9,300 e ' ____ , .-- —  y school pupils would be
bused. The additional opera — . .^ —o=> t of busing them would
not exceed $186,000.00 per ^

^ - "--- They would require not
more than 90 additional buse- .— —he buses would require
an additional capital outlav ^  nnn nn mw •-1 —  r-r>, 000.00 . The increased



operating cost of the additional elementary school pupils 

required to be bused amounts to less than 1% of the board's 

school budget, and the one-time capita’ outlays for addi­

tional buses amounts to less than 1% of the board's total 

budget. The combined operational and capital cost repre­

sents less than 1.2% of the board's total budget. I am, 

therefore, unable to see how the majority could consider 

the additional cost unbearable.

Perhaps more importantly, the tender years of ele­

mentary school students requires a consideration of the im­

pact of the district court's order on the average student. 

Vrhile this board transports 21% of the total school popu- 

it is providing transportation to a far lower per­

centage of pupils than the average North Carolina school 

board. In North Carolina 54.9% of the average daily attend­

ance in the public schools was transported by bus during the 

1968—69 school year.

The average distance traveled by elementary school 

pupils presently bused does not appear, but the district 

court found overall with respect to the children required to 

be bused by its order that they "will not as a group travel 

as far, nor will they experience more inconvenience than the

59



moie than 28,000 children who are already being transported 
* While the district court did not make separate 

findings with regard to the average length of travel for 
the additional elementary school pupils required to be bused, 
it did find that the average one-way bus trip in the system 
today is over 15 miles in length and takes nearly an hour 
and a quarter. In contrast, the court found that under its 
plan the average one-way trip for elementary school students 
would be less than 7 miles and would require not over thirty- 
five minutes.

When I consider that busing has been widely used 
m  this system to perpetuate segregation, th at some rir^
was proposed even under the unacceptable board plans, that 
the cost of additional busing to the system as required by 
the court's order, both in absolute terms and in relation 
to its total expenditures is so minimal, and that the im­
pact on the elementary school pupils is so slight, I dis­
cern no basis for concluding that the district court abused 
its discretion with respect to the elementary school.

Two other aspects of the majority's opinion re­
quire my comment.

6 0



First, the majority attempts to answer the query 

of the Chief Justice in his separate opinion in Northcross

v. Board of Ed. of Memphis, _____ U. S. _____ (1970), as

to whether "any particular racial balance must be achieved 

in the schools" by holding "that not every school in a uni­

tary school system need be integrated * * * ." To me, the 

holding is premature and unwise. There is not in this ease 

either the intractable problem of a vast urban ghetto in a 

large city or any substantial basis on which it may be said 

that the cost or the impact on the system or on the pupils 

of dismantling the dual system is insupportable.

The district court wisely attempted to remedy the 

present dual system by requiring that pupil assignment be 

based "as nearly as practicable" on the racial composition 

of the school system, 71% white and 29% black. The plan 

ordered fell short of complete realization of this remedial 

goal. While individual schools will vary in racial compo­

sition from 3% to 41% black, most schools will be clustered 

around the entire system’s overall racial ratio. It would 

seem to follow from United States v. Montgomery Board of 

Education, 395 U. S. 225, 232 (1968), that the district

6 1

’y . r v - j'v  y  i r



court's utilization of racial ratios to dismantle this dual 

system and remedy the effects of segregation was at least 

well within the range of its discretion. There the Supreme 

Court approved as a requirement of faculty integration that 

"in each school the ratio of white tc- Negro faculty members 

is substantially the same as it is throughout the system.

It did so recognizing what it had previously said in New 

Kent County, 391 U. S. at 439, "[t]here is no universal an­

swer to complex problems of desegregation; there is obvi­

ously no one plan that will do the job in every case. The 

matter must be assessed in light of the circumstances pres­

ent and the options available in each instance. If in a 

proper case strict application of a ratio is an approved de­

vice to achieve faculty integration, I know of no reason why 

the same should not be true to achieve pupil integration, 

especially where, as here, some wide deviations from the 

overall ratio have been permitted to accommodate circum­

stances with respect to particular schools.

In addition to Montgomery, the same conclusion can 

be deduced from the mandate of West Feliciana and HoIroes 

County to dismantle immediately a dual system. Schools cease 

to be black or white when each reflects the overall pupil

62



racial balance of the entire system. What imbalances may 

be justified after a unitary system has once been estab­

lished, and what departures from an overall pupil racial 

balance may be permitted to accommodate special circum­

stances in the establishment of a unitary system, should 

be developed on a case-by-case basis and the facts of re­

cord which each case presents.

The other aspect of the majority's opinion which 

troubles me greatly is its establishment of the test of 

reasonableness. My objections to this test do not spring 

from any desire to impose unreasonable, irrational or oner­

ous solutions on school systems; I, too, seek "reasonable" 

means with which to achieve the constitutionally required 

objective of a unitary system.

My objections are two-fold.

First, this is an inappropriate case in which to 

establish the test. On this record it cannot be said that 

the board acted reasonably or that there is any viable solu­

tion to the dismantling of the dual system other than the 

one fashioned by the district court. Neither the board nor 

HEW has suggested one. So that, again, I think the majority 

is premature in its pronouncement and I would find no occa-

63



sion to discuss reasonableness when there is no choice of 
remedies.

Second, the majority sets forth no standards by 

which to judge reasonableness or unreasonableness. The 

majority approves the district court's plan as to high 

schools and junior high schools, yet disapproves as to 

elementary schools. The only differences are increased 

busing with attendant increased cost, time and distance.

The majority subjectively concludes that these costs are too 

great to permit the enforcement of the constitutional right 

to a unitary system. I would find them neither prohibitive 

nor relatively disproportionate. But, with the absence of 

standards, how are the school boards or courts to know what 

plans are reasonable? The conscientious board cannot deter­

mine when it is in compliance. The dilatory board receives 

an open invitation to further litigation and delay.

Finally, I call attention to the fact that "rea­

sonableness" has more than faint resemblance to the good 

faith test of Brown II. The 13 years between Brown II and 

New Kent County amply demonstrate that this test did not 

work. Ultimately it was required to be rejected and to



have substituted for it the absolute of "now and at once. 

The majority ignores this lesson of history. If a consti­

tutional right exists, it should be enforced. On this 

record the constitutional rights of elementary school pupils 

should be enforced in the manner prescribed by the district 

court, because it is clear that the district court did not 

abuse its discretion.

Judge Sobeloff authorizes me to say that he joins 

in these views.

65