Motion for Leave to File and Participate in Oral Argument and Amicus Brief for the National Education Association
Public Court Documents
April 7, 1970
57 pages
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Case Files, Swann v. Charlotte-Mecklenburg Working Files. Motion for Leave to File and Participate in Oral Argument and Amicus Brief for the National Education Association, 1970. 7cc4393d-2e34-f111-88b4-7c1e526962fd. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/b09d0492-055c-4007-8c7f-1752f7cb3b26/motion-for-leave-to-file-and-participate-in-oral-argument-and-amicus-brief-for-the-national-education-association. Accessed June 03, 2026.
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[||d62dda80-80b7-497f-a501-560a5cbefae8||] IN THE
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Misc. No. 623
JAMES E, SWANN, et al.,
Plaintiffs Appellees
: WS,
CHARLOTTE-MECKLENBURG BOARD
OF EDUCATION, et al.,
Defendants Appellants
APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NCRTH CAROLINA
MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE
AND FOR LEAVE TO PARTICIPATE. IN
AND
BRIEF AMICUS CURIAE
ORAL ARGUMENT
FOR
. THE NATIONAL EDUCATION ASSOCIATION
Of Counsel:
Shea & Gardner
734 Fifteenth Street, NW,
Washington, D. C. 20005
\
Stephen J. Pollak
Richard M. Sharp
734 Fifteenth Street, N,V.
Washington, D. C. 20005
David Rubin
1201 Sixteenth Street, N.V,
Washington, D. C. 20036
Attorneys for Amicus Curiae
National Education Association
TABLE OF CONTENTS
MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE AND FOR
APPENDI X Sk. 4 [ J [ 4 LJ ® LJ Ld LJ LJ LJ . ® LJ [J . LJ eo, LJ LJ ; ® LJ LJ LJ LJ LJ [J 4 e
LEAVE TO PARTICIPATE IN ORAL ARGUMENT ° » 0 ® 0) * 0] ° e ® * ® e 1
INTEREST OF THE NATIONAL EDUCATION ASSOCIATION - «ain + sine b
QUESTIONS PRESENTED AND ADDRESSED BY NEA ue wel gli Cig gitiy
ARGUMENT [ J LJ L 4 LJ [J LJ LJ [J [J LJ LJ LJ LJ L J LJ ® LJ LJ e i LJ [J [J LJ LJ * LJ LJ Md 8
A. Introduction and Summary = MEL TERR Ther BOER eR Cg
B. Where there is Residential Segregation Produced by
State Action the School Board Must Assign Pupils so
as to Eliminate the Effects of that Segregation . . . .13
1. The Court Properly Ruled that there Was "So
Much State Action Embedded in and Shaping"
Charlotte's Residential Patterns that "the
Resulting Segregation Is Not Innocent or
' De Facto LJ : n 4 LJ LJ LJ LJ LJ LJ LJ * LJ LJ ® # * LJ LJ LJ oz
2. Where Racially Identifiable Schools Were the
Result of Such Segregation, the School Board
Had a Duty To Reassign Pupils to Eliminate Its:
Effects pa RL LJ [J e LJ LJ] @ [J LJ [ J LJ RA [J] LJ LJ [J LJ NN LJ 19
C. The Requirements for Desegregation Set by the District
Court Are Reasonable and Within Its Power to Frame
5 Remedy for Wrongful ACTION , v 4 ov sinin.s os vo nib
. . Introduction ba LJ LJ o- [J LJ * ba LJ : [ J [J LJ LJ LJ LJ . ® LJ LJ 26
Be The District Court in Equity Has Broad Discretion
to Frame a Remedy for Wrongful Action .... . 30
3. The District Court Properly Exercised Its Dis-
cretion in Setting the Requirements for an
Acceptable Desegregation Plan ., . ov uo ¢ o o « « 32
a. Elimination of Predominantly Black Schools. . 32
b, “Brcial Distribution iuiy viv os vw vivian
ec. Provision of Transportation’, 1, is ev oe vie +» AD
CONCLUSION LJ ® LJ ® [J LJ [J [ J] [J e eo LJ LJ LJ LJ ® ° Ld LJ LJ [J [J | *® MA LJ LJ LJ 46
CITATIONS
Cases: Page
Alexander v. Holmes County Board of Education,
396 U.S. 19 (1969) . olin nate Ty ea yy eee el Cw eile an DOSS in
Barrows v. Jackson, 346 U. S. 249 {1953) se Te et en a
Bell v. Maryland, 378 U.S. 226 (19 oy. o 6 nie a 17
Brewer v. School Board of City of Norfolk, 397 F.2d 37 (1968) 0,20, 3.
Brown v. Board of Education, 347 U.S. 483 (1954). MEE 9, 1.
Brown v. Board of Pinontion (Brown II), 349 U.S. 29 (1955) : 30
Buchanan v. Harley ts TS, CO LIONT Ye aie ov niin a e000 16
Burton v. Wilmington Parking Authority, 375 U.S. 715 (1961) . 25
Calhoun v. Latimer, Civil Action No. 6298 (N.D. Ga.,
ms}
Manoir: 20, O80), yy wattle Wwe ie a ae ee es 34
Carr v. Montgomery County Bd. of Eduec., Civil Action
No. 2072-N (M.C. Ala,, Feb. 25, 1970). e eo e oo o eee Tie 34
Carter v. Jury Commissioners of Greene County, :
238 U.S. LW. 4052 (Jan. 19,1970) 4, v vais vin is nti ee 32
i, TA
Cato v. Parham, 302 F. Supp. 129 (D. Ark. 1969) . . . . . .. 21
Contractors Association of Eastern Pennsvlvania, et al. wv. -
Schultz, Civ. No. 70-18 (Mem. Op. March 13, 1970). . . . . 35
Davis v. Board of School Commissioners of Mobile, 4
393. 2.20 600 (5th Cir. JOB5) o t0iieiniieis oto iW is tan iain 10, 33
Davis and United States v. Mobile Countv Bd. of School
Commissioners, Civil Action No. 3003-63 (S.D. Ala.
Jan. 31, V3) (Appeal by both plaintiffs pending in
5th Cir.). viel olin e ih ie ie ow see ee ei 34
Detroit Housing Commission v. Lewis, 226 F.2d 180
(6th Cir. 1955) Ld LA ° J LJ LJ LJ LJ LJ * * LJ LJ LJ ® L J LJ LJ LJ ® LJ A 18
Dowell v. School Board of Oklahoma Oify, 244 F. Supp. 971
(W.D, Okla, 1965), aff'd 375 F.2¢ 158 (10th Cir. 1967),
geri. denied 387 B.8. OL {1067 4 vw inin es 50s winnie 21, 22,23
Eason v. Buffaloe, 198 N.C. 520, 152 S.E.2d 496 (1930).
Ellis v. Board of Public Instruction of Orance County,
Civil No. 2912/H(5th Civ. Feb, YI, 3070) + viaie « % ia as 34
" Evans v. Newton, 383 D820 (3080) s os a Nr 2
Cases [Cont'd]: | : Page
Green v. County School Board of New Kent County, a ot
391 U.S. 430 (1968) . LJ Ld LJ LJ A LJ LJ LJ LJ Ld LJ LJ ® LJ LJ , LJ LJ LJ Passim
Griffiny., County Sohool Board, 377 U8, 218° (1964) v0 oe. 32,44
Henry v. Clarksdale Municipal Separate School Dist.,
409 F.2d 682 (5th Cir. 1969), cert. denied, 396 U.S,
940 (1969). ° ® * . * M . . ° Ky ote ° ho ® 0] ® J ® ® ® ° 0 ° 18,21,33,34,3%6
Holland v. Board of Public Instruction of Palm Beach County, girl
258 ¥,24 730 (54h Cir 1908) ie v eis wivngeile wine wim 22
Kemp v. Beasley, No. 19072 (8th Cir. March 17,-1970) . ... . 21
Keyes v. School District No. 1, Denver, 303 F.Supp. 289
(D. Colo. 1969), stay pending appeal granted, F.2d
(10th Cir. No. 432-69, August 27, 1969), stay vacated,
OE, ANB, he ra ers Ls 20
Louisizna v. United States, 380 U.S. 145 (1965) .-. . . . . . 23,31,36
Marais Vv. Jlanamn, 326 U.S. SOL CIB) + + v's ow iiainte a en 18,25
Meredith v. Fair, 298 F.2d 696 (5th Cir. 1962), cert. denied,
—
ER Ang Gs SCR CT YE
‘Mitchell v. Johnson, 250 F. Supp. 117 (D. Ala, 1966) . . . . . 33
Monroe v. Board of Commissioners of the City of Jackson,
391 U.S. 450 (1968) * [J M L] ® ® ® ® [J ® [] LJ e ® [] e eo [] [] * 10
Moore v. Tangipahoa Perish School B4., Civ, No, 15556 :
(E Da la,, July 2) 1969) ® ° ® ° * ° . ® * ® ® e e ® , JE * % FAA :
National Labor Relations Board v. Remington-Rand, Inc.,
94 F.2d 862 (2d Cir., 1938), cert. denied, 304 U.S.
(1938) LJ N @ % “® LA LJ » ® *® LJ *® %® LJ oc A * #* LJ LJ LJ LJ LJ * LJ L J 25
National Lebor Relations Board v. Southern Bell Co.,
319 U.S. 50 (1943) LJ LJ e ® ° [J ® [J eo * [J [2 LJ LJ o- e e [J 4 LJ 25
Nesbit v. Statesville City Board of Education,
418 F.24"20/0 (4th Clr, 31969) (enDame) . . & 4 vo ea vw ». 23,27,28
Cases [Cont'd]:
-
Parker v. Franklin, 223 F. Supp. 724 (M.D. Ala. 1963)
J
modified and aff'd adopting the opinion of the district
. gourt, 331 F.2d 841 (5th Cir. 1964). . .
Pennsylvania v. Board of Directors of City Trusts,
353 UB. 230 (3957) 4s seine lures ow ou idinie
Fhillins v. Hearn, 226 N.C. 290, 37 5.E.24 895 (1946) +. . + . + +
Raney v. Board of Education, 391 U.S. 443 (1968). . .
Ranjel v. City of Lansing, 293 F. Supp. 301 (W.D. Mich.
Reitman v. Mulkey, 387 U.S. 369 (1967). . . Figs a he
Ross v. Dyer, 312 F.24 191 (5th Cir. 1962). 4 iv 4 4 oa
Shelley v. Kraemer, 334 U8. L {IBY « viv in ain
Singleton v. Jackson Munic. Separate School Dist.,
~ Ov, No. 28261 {Dee." 1, 1960). os wis o wince stati
Spangler and United States v. Pasadena City Bd. of Ed.,
Civ. No. 68-1438 (M.D. Calif. March 12, 1970).
. Swann v. Adams, 263 F. Supp. 225 (S.D. Fla. 1007) i.
. Terry v. Adams, 345 U.S. 461 10) A SR ES
Texas and N.O.R. Co. v. Brotherhood of Railwav and S.S.
«lve NSD
1969) .
LJ ® LJ ®
Clerks,
281 U.S, 548. 43030). aia iv u's 's wine o's
Turner v. Goolsby, 255 F. Supp. 724 (S.D. Ga. 1965,
supplemental opinion 066). vw tiv sv ov. vw ania
United States v. Duke, 332 F.2d 759 (5th Cir. 1964) . .
United States v. Greenwood Munic. Sep. School District,
£06. F284 1086 {5th Civ, I06D). iv ov isiiwiv ol wile su ain
" United States v. Quest, 383 U.S. 745 (1966) . . . . . .
335
25
25
2
23
34
24
Cases [Cont'd]:
United States v. Jefferson County Bd. of Educ., 377 F.2d 836
1966), aff'd on rehearing en banc, 380 F.2d 385 (5th Cir.
1967), cert. denied sub nom. Caddo Parish School Bd. v.
United Siates, 389 U.S. 840 (1987) «vv « »
United States v. Manning, 205 F. Supp. 172 (W.D. La. 1962). .
United States v. Montgomery County Board of Ed., 395 U.S. 225
(1969) TS ee! Wa TORRY GS Rene RA OIE ius” Tee SE wih any dy TE TEE © ui . "ee Chel ee.
5 ener +c cp mee me si mor echo IHR J
United States v. School Dist. No. 151 of Cook County,
286 F. Supp, 786 (N.D. 111.), aff'd 20. F.2d 1125
(7th Cir. 1968) LJ * LJ \d ® LJ LJ LJ LJ LJ [J ® © * ® LJ LJ LJ LJ LJ] LJ LJ
United States v. State of Louisiana, 380 U.S. 145 (1965). .
United States v. Ward, 222 F. Supp. 617 (W.D. La. 1963)
. Valley v. Rapides Parish School Bd., Civ. No. 29237
(Sth Civ, Marchi 6, JOT0) .. wy + bd iriw ed BI 0
--Nernon v. R.J. Reynolds Realty Co., 226 N.D. 58,
358. Be28 FIO KIOLBY yo iy te ie whe ne a as hale
’ White v. Crook, 251.F, Supp. 401 {M.D Ala. 1966). \u5 ou a
Statutes:
Civil Rights Act of 1866, 14 Stat. 27, ;
now 18 U.S.C. 242, § 1 EA ® RM LJ LJ L 0 ® L J L J * » w * LJ L J LJ L J LJ
Enforcement Act of May 31, 1870, 16 Stat. 140,
now 42 v.5.C, 1971 (a), § 3 ° e oo ® LJ J . ® © e LJ Rd . M ° °
KuKlux Act of April 20, 1871, 17 Stat. 13, Eris
. NOW 42 b.S.C. 1983, § 3. ® BT mee ee
ei LE YR) ER Sil hel yl i Se
Shui Lea ar LR en Di,
* - an ere a 5 -— et en — ~~ Om rt wna — Pe —————
. «passim
. Jy RS
. u 28:30,35
e Wo J
. oI
iy Miscellaneous [Cont'd]: : Page
Coleman, Equality of Educational Opportunity, 22 (U.S. Office
: OD CAL IONE 1000) av 5 e a ein oa ah Cae Te a Cee ie Te 37
Division of Research, Office of Research and Evaluation, New
York State Education Department, Racial and Social Class
Isolation in the Sehoala, 238.240 (1989) . , visi'e « nin 37
James, Wealth, Expenditures and Decision-Making for Education,
go TVR CORE ER SG PR Sie LR 38
Mort & Cornell, American Schools in Transition, (1941) . . . 38
NEA Handbook 1969-70 ™ ° PY . N e ® ° ® ° : . * . - i ™ * ° * 3
NEA, National Commission on Safety Education, 1967-68
‘Statistics on Pupil Transportation 3 (Washington, D.C. 1968) 41,42
NEA Research Div., Estimates of School Statistics, 1969-70
AR RIIAOCO RABY ID. 30 wns vv 9% 4 on nine Pilatus ey 39
NEA Research Div., One Teacher Schools Today (Research
Monograph, 1060 Mel) PD. Dis vw aii vis ol in nn lisiswin o 3°
Ross, Administration for Adaptability (Rev. ed. 1958) . . . 38
Swanson, "Contemporary Challenges: Monitoring Human Inputs
into the Schools," Fiscal Planning for Schools in Transition
_ in Proceedings of the Twelfth National Conference on School
BJ
Finance, 80-8. (NTA JOVDY. fy iti ade nine iv with wie oe 3
U.S. Commission on Civil Rights, Racial Isolation in the
Public Schools, Appendix 180 (1967) ME SS TR RR 17,37,38
Weinberg, Desegrecation Research: An Appraisal (1968) . . 38
IN THE
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Misc, No, 623
JAMES Zz, SWANN, et al.,
laintiffs Appellees
)
)
)
: )
ys, : ly )
)
CHARTOTTE-MECKLENBURG BOARD )
OF EDUCATION, et al., )
)
) Defendants Appellants
APPEAL, FROM THE
~ UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE
AND FOR LEAVE TO PARTICIPATE IN ORAL ARGUMENT
The National Education Association hereby moves, pursuant to
Rule 29 of the Federal Rules of Appellate Procedure, for leave to flls
the attached brief amicus curiae and to present oral argument in the
-above-entitled cause. Consent to the filing of the brief has been sought
from the ‘appellants, the appellees, the other parties in the district court,
Don
including the State of North Carolina and iis officers and agencies,
and the Concerned Parents sociation. Yor of the United States, as a
party amicus curiae designated by this court. Appellees have consented
and counsel for the United States has orally advised that it will not oppose
"the filing of a brief by NEA, No response has been received to date to the
requests made of the appellants and He State of North Carolina,
The National Education Association (hereinafter NEA) is an inde-
pendent, voluntary organization of educators open to all professional teachers,
supervisors and atlsraions, It presently has over one million regular
members, and is the largest professional organization in the world, NEA was
first ovaanived in 1857 and was chartered by a special act of Congress in
1906. Its statutory A is {34 Stat, 805) -
. « « to elevate the character and advance the
interests of the profession of teaching and to
promote the cause of education in the United States,
The overall policies of NEA are determined by its Representative sagenbly..
8 body composed of atmfsRinately 7,000 delegates representing affiliated
local and state education associations,
NEA has conducted detailed studies of the educational implications
of the maintenance of dual segregated school systems. It has long
been cori Yted to the privciple that racial segregation in education
averdaly affects the aust of the duos lion received by both black
and white students, Reflecting this position, the Representative Assembly
at the June 1969 Convention adopted a formal continuing resolution
y Oral consent has been gives by counsel for the Concerned Parents
“Association,
2/ The written consent of the appellees has been filed with the Clerk.
1
providing, in part (NEA Handbook 1969-70, p. 66):
: The Association endorses the deataton of the
: U.S. Supreme Court in Brown v., Board of Education
: and urges compliance with subsequent federal laws
and regulations in this area . . . .
The Association directs its officers and staff
to exert every effort to reestablish the September,
1969 deadline for full compliance,
On March 20, 1970, the Executive Committee of To Asin Tatton adopted a
more specific resolution on desegregation in the AiiEennts and
recommended it to the Board of Directors and the 1970 Representative
Assembly: 3 |
The NEA believes it is imperative that desegrega-
tion of the nation's schools be effective, Policies
and guideline statements for school desegregation in
all parts of the nation must be strengthened and must
comply with Brown v. Board of Education and subsequent
judicial decisions and with civil rights legislation
and decisions, :
The Association recognizes that acceptable deseg-
regation plans will include a variety of devices such
as geographic realignment, pairing of schools, grade
pairing and satellite schools, These arrangements often
require that some students be bussed in order to imple-
ment desegregation plans which comply with established
guidelines adhering to the letter and spirit of the law,
"It has long been settled that complete disestablishment of
formerly de jure sdtrorated siroot systems is required by the Constitu-
tion. This case presents to the court important issues concerning the
meaning of a school board's responsibility to conver’ from a dual to a
unitary school system and the steps which it may be required to take to
accomplish that conversion, As. .the principal association of educators
rrp —. a — i ST TR . v Lin ar — AS]
in this country, NEA is well-equipped to inform the court as to the
reasonableness of the requirements for desegregation framed by the court's
order of February 5, 1970, when judged from the standpoint of educational
considerations as well as the practices in other school systems,
By order of March 6, 1970, this Court made the United States a
party amicus curiae and invited the Attorney General to file a brief and
participate in oral argument, Counsel for the United States has advised
the NEA that it anticipates filing a brief and presenting oral argument
but will not be seeking affirmance of the district court's orders. |
The action of the court in extending this invitation and the
response of the United States underscores the importance of the issues pre-
sented by this appeal, Many of these issues present matters of educational
policy and practice as to which NEA has experience which will complement
that of the parties and, we believe, assist the court in resolving these
issues,
3/ The NEA and its State associations have participated as amicus curiae
in other major proceedings involving issues of education and race. See
Alexander v. Holmes County Board of Education, 396 U.S. 19 (1969); Smuck
v. Hobson, 408 F.2d 175 (D.C. Cir. 1969); lee v. Macon County Board of
Education, 283 F. Supp. 194 (M.D, Ala, 1968).
/
Accordingly, and in view of the anticipation of the United States
that it will file a brief and present oral argument but will not be seeking
affirmance of the district court's Srdivs, the National Education Associa-
tion respectfully requests that this Court grant leave to file the attached
brief amicus curiae and to present oral argument before the court on Ap-
ril 9, 1970, In view of the expedited schedule, NEA veniRats that the Court
rule upon this motion without waiting for the receipt of papers in opposi-
tion and that the Court consider the attached brief together with the briefs
of the parties; and with the other papers in this case,
Respectfully submitted,
Stephen J. Pollak
Richard M, Sharp
734 Fifteenth Street, N.W,
. Washington, D.C. 20005
Of Counsel:
: ; .~ David Rubin ;
Shea & Gardner > 1201 Sixteenth Street, N.W,
734 Fifteenth Street, N.W. Washington, D.C. 20036
Washington, D.C. 20005
Attorneys for Amicus Curiae
April 7, 1970 : . National Education Association
IN THE
UNITED STATES COURT OF APPEALS
. FOR THE FOURTH CIRCUIT
Misc, No. 623
JAMES E, SWANN, et al.,
Plaintiffs Appellees
VS.
CHARLOTTE-MECKLENBURG BOARD
OF EDUCATION, et al.,
fae Defendants Appellants
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APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
BRIEF AMICUS CURIAE FOR THE NATIONAL EDUCATION ASSOCIATION
Y
~ INTEREST OF THE NATIONAL EDUCATION ASSOCIATION
The National Education Association (hereinafter NEA) is an
independent, voluntary orguniehulon of professional educators. It has over
one million tenis, including teachers, supervisors, and administrators.
As stated in the Association Charter, its purpose is "to elevate the character
and advance the interest of the profession of teachers and to promote
~7 ~
the cause of education in the United States." Both the NEA and its
members have a deep interest in the quality of education received by the
children of all races, For this reason, it has recently conducted inves-
tigations of the problems of race and education in the school systems of
Wilcox County, Alabama; Baltimore, Maryland; some 22 counties in Iouisiana;
Detroit, Michigan; some 30 counties in Mississippi; Hyde County, North
Carolina; and the region of Fast Texas. For.this reason also, NEA ne
participated in several school desegregation ¢ cases and in numerous others has
actively SA efforts to secure judicial relief.
I
QUESTIONS PRESENTED AND ADDRESSED BY NEA
1. Did the district court err in holding that the all-black and predominantly
black schools in Charlotte's black residential areas are not "unitary"
or desegregated and in seniiining disestablishment of the racial identity
of their student bodies?
2. Did the district court abuse its discretion to frame a remedy for the
unconstitutional dual school system in setting the soliowin requirements
for desegregation in its order of February 5, 1970:
[NJo school be operated with an all-black or predominantly
black student body.
[PJupils of all grades be assigned in such a way that
a8 nearly as practicable the various schools at various
grade levels have about the same proporyion of black
and white students.
-[T]ransportation be offered on a uniform non-racial
basis to all children whose attendance in any school
is necessary to bring about the reduction of segre-
gation, and who live farther from the school to which
they are assigned than the Board determines to be
walking distance,
ae
III
ARGUMENT
A. Introduction and Summary.
In its order of February 5, 1970, the district court set forth
sixteen requirements which it ordered the School Board to fulfill in de-
segregating the Charlotte-Mecklenburg Schools, Included were requirements--
That no school be operated with an all-black or
predominantly black student body.
That pupils of all grades be assigned in such a
way that as nearly as practicable the various
schools at various grade levels have about the
same proportion of black and white students.
That transportation be offered on a uniform
non-racial basis to all children whose attendance
in any school is necessary to bring about the
reduction of segregation, and who live farther
from the school to which they are assigned than
the Board determines to be walking distance.
Thereafter, the district court approved a desegregation plan in four separate
parts, one each for the senior high schools, for the junior high schools, for |
. 27 elementary schools for which new zones were defined, and for 3 elementary
schools which were paired and assigned noncontiguous zones. The court
stated that "the duty imposed by the law and by this order is the dene vegniion
of schools and the maintenance of that condition, The plans discussed in this
order, whether prepared by Board and staff or by outside consultants, . . .
are illustrations of means or partial means to that end. [Footnote omitted. ]
The defendants are encouraged to use their full 'know how' and resources to
attain the results above described, and thus to achieve the constitutional
i
end by any means he their disposal. The test is not the method or the
plan, but the results 0 The court declared that any plan must comply
with the requirements stated in the order.
Since the court announced the order, there has been considerable
aismssion of the provisions of the plans for creation of noncontiguous or
"satellite" zones for some black senior and junior high school students;
for the pairing of 34 black and white elementary schools with noncontiguous
zones; and for the provision of transportation in accordance with State law
for students living more than walking distance from the schools to whieh they
are so assigned. In these discussions, parties have generally taken sides for
or against the "Neighborhood school," "compulsory bussing" and Yracial balance,”
NEA sees the issues in this case somewhat differently, although no less
important to the accomplishment of the constitutional mandate of Browvm v.
Board of Education, 347 U.S. 483 (1954).
| The Charlotite-Mecklenburg Board of Education has been operating a
dual school system based upon race. Because of this it has certain obligations
under the Fourteenth Amendment as interpreted in Brown and succeeding cases.
*It.is Giler on absolute requirement to reform its policies, procedures and
practices so as to afford every child a desegregated education and to eliminate
resent discrimination and the effects of past discrimination "root and branch.” : D
Green v. County School Board of New Kent County, 391 U.S. 438 (1968). As
br In a concluding paragraph entitled "MODIFICATIONS," the court stated
its intention "to leave maximum discretion in the Board to choose methods
that will accomplish the required result." It directed that leave of
court be obtained before making any material departure, however. Order
of February 5, 1970, p. 7 (mimeo. text).
L.
«1.0
the Court restated the constitutional requirement in the Alexander v,.
Holmes County Board of Education, 396 U.S. 19, 20 (1969):
Under explicit holdings 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. [Case citations omitted. ]
« « » [N]Jo person is to be effectively
excluded from any school because of race
or color, as i
Among the questions this case posed to the district court was
what is the obligation of the School Board where residences in the community
are segregated as a result of government action, including, inter alia,
the action of the Board itself in locating schools to maintain and promote
rein separation? On appeal to this Court, the question has become
whether the desentegation requirements set forth above properly framed
this duty. NEA believes the answer is yes, both as a matter of equitable reme-
dies, and the traditional discretion of the district court and, insofar as
the provision requiring elimination of the all-black and predominantly
black schools, as a matter of the constitutional mandate.
We turn first to the question wether, where there is neighborhood
segregation, the School Board must reassign students so as to eliminate its
effects. A number of cases, including this Court's opinion in Brewer v.
School Board of City of Norfolk, 397 F.2d 37 (1968), suggest that a school
board has such an obligation whether the neighborhood patterns were the result
of public or private action, However, this Court does not need to reach that
issue here because the facts found by the court below and the public record of
1)
government support for segregated housing provide ample support for the
Jen district court's conclusion that there was "so much state action embedded
in and shaping" Charlotte's residential patterns that "the resulting segre-
gation is not innocent or 'de facto'", Having so found, the district court
properly, we believe, applied the mandates of Green and Alexander to require
that an acceptable desegregation plan provide for the elimination of the
all-black and predominantly black schools,
We next turn to the question whether, apart from the Board's con-
" stitutional duty, the requirements set by the Soars were a ustifiable exercise
of its discretion to frame equitable yensdles for proven constitutional
¥rbigs of the Board, Brown II, 349 U.S. 204, 300 (1955), envisioned--and
traditional doctrine supports--that the district court would have broad dis-
cretion in "fashioning sind oT Cocinaling decrees, The requirements set by
the court below are reasonably drawn to accomplish the elimination "now and
. ;
hereafter," Alexander, supra at 207 or the dual system, including the effects
of the residential segregation, They are also consistent with sound educatiornzl
practice,
NEA recognizes in these steps to disestablish the dual school systen
a parallel to the earlier massive nation-wide efforts to remove educational
deprivation from rural America, These efforts reduced the number of school
systems from 127,422 in 1931-32 to 18,904 in 1969-70, bringing laboring
2/ See United States v. State of Iouisiana, 380 U.S. 145 (1965), where the
court said: "the court has not merely 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." This holding
was found applicable to school desegregation by the Supreme Court in Green
_V. County School Board, supra at 438 n. 4.
-12-
class children of the farms together with middle-class children of the
villages and towns, The process, which met with a good deal of resistance
. to the loss .of locally-based schools and tc the bussing of children, resulted
in significant educational sain bf
In sum, there is not in the Constitution or the cases interpreting it,
or the practices of the Charlotte Mecklenburg Board of Education and other school
protection
districts throughout the United States any absolute/ for the neighborhood school,
Nor does NEA's research indicate that such protection would be warranted by
educational considerations. In recent years over 40 percent of all pupils
have been bussed to public schools, Assignment of pupils to schools so distant
from their homes as to Nh bussing "compulsory" has been a common practice for
educational and other reasons, including the maintenance of the dual system
of schools based on race, in Charlotte-Mecklenburg and other North Carolina and
out-of-state school ftutriotasl NEA's research indicates that the educational
gains can be anticipated from elimination of the dual school system and the
tnterration of pupils of different races and economic backgrounds. T4 is
NEA's conclusion that neighborhood schools must yield to the constitutional
requirement for elimination of officially-caused segregation in education,
See discussion at pp.38-39, supra.
7/ See Monroe v. Board of Commissioners of City of Tonkaoh, 391 U.5. 450 (1983);
Davis v. Board of School Commissioners of Mobile County, 364 F.2d 896,
901 (5th Cir. 1956); Dowell v, School Bd. of Oklahoma City, 244 F.Supp.
971, 977 (W.D. Okla. 1965), aff'd, 375 F.2d 158 (10th Cir. '1967), cert.
denied, 387 U.S. 931 (1967). ,
TW
B. Where There Ts Residential Segregation
Produced bv State Action, the School
~ Board Must Assign Pupils so as to Elim-
inate the Effects of tha Segregation.
The Charlotte-Mecklenburg School Board, having operated a dual
school system based upon race, is under an "affirmative duty to take whatever
steps might be necessary to convert to a unitary system in which racial dis-
erimination would be eliminated root and branch." Green Y. County School
Board, 391 U.S. 430, 437-38 (1968), It must "fashion steps which promise
. realistically to convert promptly to a system without a 'white' school and
a 'Negro! school, but just schools." Id, at 442, adopting the holding of
the Court of Appeals for the Fifth Circuit in United States v. Jefferson
minions J
County Board of Education, 380 F.2d 385, 389 (5th Cir. 1967)(en banc), cert.
denied, 389 U.S. 840 (1967), This conversion is to be made "at once" and |
"no person is to be effectively excluded from any school because of race or
color." Alexander v. Holmes County Bd, of Educ,, 396 U,S. 19, 20 (1969);
Nesbit v. Statesville City Board of Fdue., 418 F.2d 1040, 1042 (4th Cir.
1969 )(en banc). In light of these mandates from the Supreme Court and this
Court and in light of the findings of the district court, NEA believes that
the court below properly framed the requirements it set for an acceptable
desegregation plan and properly modified the School Board plan to meet
those requirements.
hy 3
1. The Court Properly Ruled that there was "So Much
State Action Fmbedded in and Shaping" Charlotte's
- ; Residential Patterns that "the Resulting Segregation
13 Not Tmmocent or 'De Facto, '"
In its Memorandum Opinion of Noverbor 7, 1969, ithe court below
reviewed the results of almost four and one-half years of "desegregation"
by the Charlotte-Mecklenburg Board of Education pursuant to orders of the
United States District pons The court found that of 24,714 Negro
students, something above 8,500 were attending "white" schools or schools
not readily identifiable by race; that 13,945 were still in 90-100% black
solic, and that 9,216 of these were in 100% black schools. It moted
that the latter number was "considerably more than the number of black
students in Charlotte in 1954 at the time of the Avot Brown decision,™
It found that of 59,828 white students, over 45,000 were attending schools
which were 86-100% white, Paged upon these findings the court declared
that "the schools are still in ma jor part segregated or 'dual' rather than
desegregated or rund tary.'" 40/
g/ The first desegregation order was issued July 14; 1965, approving a
J :
"freedom of choice" plan proposed by the Board of Education. 243 F. Supp.
667 (1965), aff'd, 369 F.2d 29 (4th Cir. 1966),
4 The court found that more than 16,000 black students were attending schools
which were between 56% and 100% black. Memorandum Opinion filed November 7,
1969, pp. 3-4 (mimeo, text).
10/
Jd. 212.4,
The district court found that the black schools were for the
most part in black residential areas and declared, "that does not make
M - i W. J. . od ntl, uy
their segregation constitutionally benign, "- It then proceeded to
summarize findings made as early as its desegregation order of April 23,
1969, 300 F. Supp. 1358, with respect to residential segregation in
J x J o IS)
Mecklenburg County brought about by government action and private dis-
crimination. A concise summary to these findings .appears at page 4 of
the court's November 7, 1969, Memorandum Opinion;
« « . 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 pub-
lic 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 ordinances; city planning; urban rencwal;
location of public low rent housing; and the actions of
the present School Board and others, before and since 1954
in locating and controlling the capacity of schools so tha
there would usually be black schools handy to black neigh-
borhoods and white schools for white neighborhoods,
J
JL
LU
In its Opinion and Order of April 23, 1969, the court had amplified some of
these findings of official responsibility for the residential segregation,
Among them was the finding that under the city's urban renewal program,
n/ Memorandum Opinion filed November 7, 1969, p. 4 (mimeo. text).
WoT
thousands of Negroes were moved from "shotgun houses" in the center of town
. and relocated in the low-rent, least-restrictively-zoned areas to the west.
The court recognized that this relocation involved many decisions by indiv-
jduals and governments at various levels, but concluded: "The clear fact,
however, is that the displacement occurred with heavy Federal financing and
with active participation by the local governments, and it has further con-
centrated Negroes until 95% or so of the city's Negroes live west of the
Tryon-railroad area, or on its immediate eastern fringes." The court
also made findings (see 300 F. Supp. at 1366, 1369, 1372) that the School
Board had located new schools so as to serve the black population relocated
to the northwest and the white population noving generally south and east
with the result that such schools became black or nearly black in the north-
west and white or nearly white in the east and ale The court con-
cluded that the mammer in which the Board had located Shoals and operated
“the pupil assignment system "has continued and in some situations accentuated
petiorns of racial segregation in housing, school attendance and community
13/
development,"
In addition to the findings of the Satin court, public records
attest to the governmental involvement, both direct and tniireet, in a
racial separation of Charlotte's relegate, The Supreme Court outlawed
‘compulsory residential segregation in 1917 in Buchanan v. Warley, 245 0.8,
€0 (1917). Following this decision, 2 principal impetus to neighborhood segre-
gation was legal recognition and judicial enforcement of the racially
12/ Swann v. Charlotte-Mecklenburg Board of Education, 300 F. Supp. at 1366,
1¥ 18. at 1372,
-17-
restrictive covenant. ‘Decisions of the Supreme Court of North Carolina
declared such covenants legally enforceable as late as 1946. Vernon v.
: R,J, Reynolds Realty Co., 226 N.C. 58, 35 S.E.2d 710 (1946); Phillivs v.
Weayn, 226 N.C, 290, 37 §,2.24 895 (1946); Frgon v. Buffaloes, 198 N.C.
14/
520, 152 S.E. 496 (1930). In Phillips, the State Supreme Court upheld a
racial restriction in a deed to a tract of land covering 380 lots in the
eastern section of the city of Charlotte, which it described as providing
"[plroperty not to be owned or occupied by persons of the negro race v 37
S.E.2d at 896, The United States has taken the position that "[t Ihe series
of [such] covenants becomes in effect al onl zoning ordinance binding those
15
in the area subject to the restriction. . . id And Mr, Justice Black
appears to have accepted this characterization of such covenants in dis-
cussing the grounds urged for decision in Shelley v. Kraemer, 334 0.5. 1
1¢/
(1948). Not until 1953 in Barrows v. Jackson, 346 U.S. 249, did the
Court hold it unconstitutional for a state court to award damages for vio- #
oo . xy
lation for such restrictive covenants.
1 In 1948 the Supreme Court held such covenants unentovssable in Shellev
V. Xraeper, 33, 0.8, 1.
15 / The position was expressed by the Solicitor General in the brief of
the United States in Bell v. Maryland, 378 U.S, 226 (1964), quoted at 329
n.156,
16 / The discussion appears in Mr. Justice Black's dissent (joined by Jus-
tices Harlan and White) in Bell v. Maryland, 378 U.S. 226, 329 (1964).
17 / Government support for residential segregation was also supplied by
the Federal Housing Administration which was urging racially restrictive
neighborhoods as late as 1938 and continuing to treat racial integration as
a reason to deny an application for mortgage insurance even after Shellew
Vv. Kraemer, supra. See U.S. Commission on Civil Rights, Racial Isolaticn
in the Penile Schools, 254-255 (1967). It is common knowledge that State ara
‘local governments likewise fostered residential segregation in their adminis-
tration of public housing projects long after Shelley. Segregated projects
in Philadelphia for [Cont'd on p.18]
-18-
In addition to such direct governmental action, residential
segregation has been maintained by pervasive customs, practices and attitudes
that have the practical force of law, In these circumstances, the coercive
effect of the custom may be Trent as constitutionally equivalent to official
action, This principle was recognized in the early Reconstruction Legislation
which prescribed action taken pursuant to "custom" as equivalent to conduct
under dotoy of positive "law, statute, ordinance, [or] regulation, lf The
Fifth Circuit in Henry, supra, 409 F.2d at 689, recognized that school zone
lines may be unconstitutional if they bind pupils "to custom-segregated neigh-
borhoods." The Supreme Court has ruled the Fourteenth Amendment applicable
where the "community aspects" of a restriction are the same as would result
from government-imposed regulation. Marsh v, Alabama, 326 0.8, 501 (19.6).
In sum, these findings of fact made by the district court as well
as the public record of governmenta action requiring and supporting residential
Seprenauion in Mecklenburg County provide ample support for the court's con-
clusion that Charlotte's black residential areas are the result of "so much
state action . . . that the resulting segregation is not innocent or 'de Tato. ?"
and the resulting schools are not 'unitary' or desegregated "LY
17
37/ [Cont'd. from p.17.]
Negroes and whites were approved in Favors v. Randall, 40 F. Supp. 743 {Z.D,
Pa, 1941) and in 1955, the constitutionality of such a segregated program in
Detroit was being contested in the courts. Detroit Housing Commission v. lewis,
226 F.2d 180 (6th Cir.). Even as late as 1969, federal couris were finding
cities such as Chicago and lansing, Michigan, to have maintained racially dis-
criminatory policies for assignment of tenants to, and selection of sites for,
public housing. Gautreaux v, Chicaro Housing Authority, 296 F. Supp. 907 (N.C.
311, 1969); Ranjel v, City of lsnpinz, 203 7, Supp, 30L (W.D. Mich. 1969).
18/ See, e.g., $1 of the Civil Rights Aet of 1866, 14 Stat. 27, now 18 U.S.C.
242; §1 of the Enforcement Act of May 31, 1870, 16 Stat. 140, now 42
U.8.0. 1971la); $1 of Xu Klux Sel of April 20, 1871, 17 Stal, 13, vow 42
U.S.C, 1983, See nlao Livi Rights faces, 1090.U,.8, 3,-17, 21,
-19/ Memorandum Opinion of November 7, 1970, p. 4 (mimeo. text).
«10-
2. Yhere Racially Identifiable Schools Were
the Resulis of Such Residential Segrera—
tion, the School Poard had a Putty to
Reassion Pupils to Eliminate its Effects
3
At present more than 16,000 of Charlotte-Mecklenburg's 24,714
Negroes are attending all-black or predominantly black schools and more
than 45,000 of the county's 59,828 white students are attending all-white
or predominantly white schools, Under the School Board's Feb uary 2, 1970,
proposed Qesogvegetion pion, over half the RegsD elementary students would
have continued to attend nine schools 83% to 100% black, and approximately
half of the 31,000 white elementary students would have continued to attend
schools 86% to 100% white 2 The Board plan would have left Piedmont Junior
High School 90% black (842 student, Yon
| NEA believes that the district court properly ruled that an ac-
ceptable desegregation plan must provide for disestablishment of the racial
. character of the student bodies of these all-black and predominantly bla
schools, Our position is that the Constitution precludes any school board from
adopting a plan which freezes pupils into racially identifiable schools as
a consequence of their residence in neighborhoods that are segregated as a
result of governmental action; That, as he district court's findings show,
as amplified by the public record, is the case with respect to the all-black
or predominantly black schools which would have remained under the Beard's
February 2, 1970, plan, NEA's position does not represent a novel approach
to the "affirmative duty" of a school board under the Fourteenth Amendment
"to convert promptly to a system without a 'white' school and a 'Negro' school,
but just schools." Green v. County School Board, supra at 437, 442.
—
20 : ‘ : ‘ 2 District Court Order filed February 5, 1970, p. 6 (mimeo, text).
21 ‘ . : er his 2 Id. at Exhibit D., Piedmont is one of 21 junior high schools in the system
which has 5,905 black and 15,280 white junior high students.
There are cases, such as this Brewer v. School Board of Citv of
8
Norfolk, 397 .F%.24 37, 41-42 (1968),2%/ and Spangler and United States v.
Pasadena City Bd. of Fduc., No, 68-1438 (M.D, Calif, March 12, 1970), which
suggest strongly that a school board may not maintain a neighborhood school
policy where the neighborhoods are segregated as a result of private racial
dt sarditnation, Such a rule would be consistent with the cases holding that
the government may not encourage, extend, build upon, or involve itself in
private discrimination. E.gz., Permgyvlvenia v. Board of Direclors of City
Trusts, 353 U.S. 230 (1957) (the State is forbidden by the Fourteenth
Amendment from carrying out the racially discriminatory provisions of a private
will); Reitman v. Mulkey, 387 U.S. 369 (1967); Keyes v. School District No, 1,
J
Denver, 303 F, Supp. 279, 289 (D. Colo. 1969), stay pending appeal granted, F.24
(10th Cir, No, 432-69), stay vacated, 396 U.S. 1215 (1969). However, this
court need not decide here whether residential segregation resulting from private
discrimination is alone sufficient to bar a school board from assigning pupils
to neighborhood schools, For here the segregated neighborhoods were found to
be the result of alee action. Accepting the suggestion in Brewer that
proof of private racial discrimination is Sodih; this case where government
action has been found should be a fortiori.
2%/ In Brewer, this Court instructed the district court to determine whether
"the racial pattern of the districts results from racial discrimination with
regard to housing" and concluded, "[a]ssignment of pupils to neighborhood schools
is a sound concept, but it cannot be approved if residence in a neighborhood
is denied to a Negro pupil solely on the ground of color." The Court went further,
saying that it is immaterial that the residential patterns are the result of
private discrimination: "The school board cannot build its exclusionary
attendance areas upon private racial discrimination," 397 F.2d at 41-42.
Nonetheless, we ‘turn now to an exploration of the decisions
bearing upon this question,
Many courts, in addition to this one in Brewer, have declared
that neighborhood assignment plans, without Sevraative Trovieions
avoiding the effects of residential segregation resulting from State
action, contravene the Fourteenth Amendment. Henry v. Clarksdale Munic,
Sep. School District, 409 F.2d 682, 689 (5th Cir, 1969), cert. denied,
=.
396 U.S. 940 (1969); United States v. Greenwood Munic. Sep, School District,
406 F.2d 1086, 1093 (5th Cir. 1969); Vallev v, Rapides Parish School Bd,,
No. 29237 (5th Cir, March 6, 1970); United States v. Baldwin County,
No. 28880 (5th Cir. March 9, 1970); Kemp v. Beasley, No. 19072 (8th Cir,
March 17, 1970). United States v. School Dist, 151, 286 F. Supp. 786,
7o8 (ND. T11, 1968), aff'd, 40s T.2¢ 11235 {7th Civ, 1963); Dowell wv, Or c————————-—————
School Board of Oklehoma City, 244 F. Supp. 971 {W.D, Okla, 1965), aff'd,
375 F.2d 158 (10th Cir, 1967), cert. denied, 387 U.S. 931 (1967);
Spangler and United States v. Pasadena City Bd. of Ed., No. 68-1438-R
(C.D. Calif, March 12, 1970); Keyes v. School District No, 1, Denver, supra;
_see Cato v. Parham, 302 F, Supp. 129 (D. Ark, 1969).
A J
court found thet residential segregation for which the State Jan responsible
was a significant factor in school Sturondiion, The court noted (id. at 975,
976) that "Negroes in Oklahoma City reside in certain definite areas, which
areas were designated as such originally by virtue of state law and were
continued through the general use of restrictive covenants" and that the
neighborhood school policy, "when superimposed over already existing resi-
dential segregation initiated by law in Oklahoma City, 10837 inexorably to
continued school segregation. The court held that the Constitution re-
quired modification of the neighborhood school policy and entered a decree
: 23
providing for a majority to minority transfer provision.
In Spangler v. Pasadena City Board of Education, supra. the district
court entered extensive findings and conclusions of law with respect to the
effects of residential segregation on the constitutional responsibilities
of the school board. It ruled in part (slip op., pp. 40-41):
10. School boards may not build upon residential segrega-
tion, when that segregation is the result of either
private or state enforced discrimination. Brewer v._School
Board of City of Norfolk, 397 F.2d 37, 41-42 (C.A. 4, 1968),
Defendants have a duty to attempt to overcome the effects
of residential segregation on student assignments. As-
signment: of pupils to neighborhood schools is a sound con-
cept, but it cannot be approved if residence in a neighborhood
is denied to Negro pupils solely on the grounds of color,
14. at 42; United States v. Schoo) Disivied 141, 286 P24
at 798. See also, Green v. County School Board, 391 U.S,
at 442.
See also Holland v. Board of Public Instruction of Palm Beach County, 258
F.2d 730, 732 (5th Cir. 1958), where the Fifth Circuit, finding that
23/ The adequacy of the court's order is questionable in light of the
Supreme Court's holding in Monroe v. Board of Commissioners, 391 U.S.
Bs
residential segregation was required by city ordinance, refused to hold
that "segregation existing in the public schools is either voluntary or
. the incidental result of valid rules not based on race."
These rulings Poptonon: an application of {the accepted proposition
that, by indulging in one unconstitutional act (the causing of neighborhood
a state is barred from engaging in action within its power
(neighborhood student assignment) because such action would perpetuate the
unconstitutionality. Thus, an otherwise valid voter qualification may not
be applied constitutionally where its effect would be to raise standards above
those applicable at a time when Negroes were discriminatorily excluded from
the franchise, at least where white persons registered during such time
2 os a i WL : eC ney
remain on the registration rolls. State requirements that a voter
registration applicant be identified by registered voters, when only white
| } : ; : ph BBE persons are on the registration rolls, contravene the Fourteenth Amendment.-
The Houston School Board, which long had applied, indiscriminately to
Negroes and whites, a "brother-sister" rule which required children in Grades
1 through 6 to attend the same school as an older brother and sister,
was enjoined from applying the rule because it perpetuated school segregation
J 26/ ; % Sd ’ i
which had been compelled by law, A State university's requirement
that an applicant for a master's degree be a graduate of an accredited
college -- applicable equally to Negroes and whites -=- was held to deny
24/ Sauls ana v. United States, 380 U.S. 145 (1965); United States Yo Dit,
332 7.20 799 {5%h Cir, 196/). :
2 ynited States v, Ward, 222 F. Supp. 617, 620 (W.D. la. 1963); United
States v. Manning, 205 F, Supp. 172, 173-174 (W.D. la. 1962).
rd Ross v. Dver, 312 F.2d 191 (5th Cir. 1962). To the same effect, Board of
Education Oklahoma City v. Dowell, 375 F.2d 158 (10th Cir. 1967), cert.
denied, 387 U.S. 931 (1967).
2h
equal protection to a Negro who had been ineligible because of his race
to attend an accredited undergraduate State college in the State, and
instead had graduated from one of the two State colleges -- both unac-
27/
credited -- which Negroes were permitted to attend. Similarly, a
State alumni sponsorship requirement at a State institution having no
Negro alumni was held to be an unconstitutional discrimination against
28 / int
Negroes. In each case the State was not permitted to apply an otherwise
innocuous policy because it would have perpetuated unconstitutional dis-
crimination,
Finally, putting to one side the Brower line of cases, 1f ihe
all-black and predominantly black schools had been shown to be in pars
the result of private discriminatory or nondiscriminatory action, the
Board would still not be relieved of its duty. It is well-established
that " . . . the involvement of the State need [not] be exelusive or
direct. In a variety of situations the Court has found state action of =
nature sufficient to create rights under the Equal Protection Clause ever
though the participation of the State was peripheral or its action vas
only one of several co-operative forces leading to the constitutional
violation." United Ststes v. Quest, 383 U.8, 73, 755-756 (1966). Im
Evans v. Newton, 382 U.S. 296, 299 (1966), the Court declared, "[clonducst
that is formally ‘private! may become so entwined with governmental policies
or so impregnated with a governmental character as to become subject to the
27/ Parker v. Franklin, 223 F.Supp, 724 (4.D, Ma, 1963), modified snd £14
adopting the opinion of the district court, 331 F.2d 841 {5th Cir. 2
28/ Meredith v. Fair, 298 F.2d 696 (5th Cir. 1962), cert. denied, 371 U.S, 826
ol (1962); Hunt v. Arnold, 172 F.Supp. 847 (N.D. Ga. 1959).
J ema ———r)
constitutional limitations placed upon state action." In that case, the
Court held unconstitutional a municipality's management of a park when
serving as a trustee under a private will requiring segregation. See
also Marsh v. Alabama, 326 U.S. 501 (1946); Terry v. Adams, 345 U.S. 461
(1953); Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961).
In sum, vhere there is neighborhood s segrega tion significantly
caused by state action, a school board is barred from drawing neighborhood
zones which result in segregated schools, Whatever application is given to
Brewer, this bar is not automatically Vif ted by the fact that, along with
government action, private discrimination and nondiscriminatory private
action may have been a causative factor in producing the neighborhood
segregation. It is a familiar principle in the law that the party responsi-
ble for a wrong must "disentangle the consequences for which it was chargeable"
or bear the responsibility for the whole. National Labor Relations Board v.
‘Remington-Rand, Inc., 94 F.2d 862, 872 (24 Cir., 1938); see United States
2 /
Vv. Baugeh & Toh Co., 21 U.S, 7, 724 (1944). If such private action
was at work here, the Board did not meet its burden of singling out the
"consequences."
The remaining question is whether the district court abused its
discretion in setting the requirements for an acceptable plan for the dis-
SRA ment of the unconstitutionally constituted all-black and pre-
dominantly black schools as well as other aspects of the dual school system.
We turn to that question now.
29 / When an employer has dominated and supported a labor organization, the
organization will be forever disestablished even.though the employer's
misconduct has ceased, even though some employees may freely prefer it,
and even though a majority of the employees might vote to have it
represent them. Texas and N, 8 LAL Co. v. Brotherhood of ‘Railway and S,S,
Clerks, 281 U.8, 548 (1930 ational Labor Relations Board v. Southern
); 1}
Bell Co., 3100.8, 50 (1943).
C. The Peaquirementis for Desegregation Sed by
the District Court Are Reasonable and Within
Its Power to Frame a Remedy for VWronoful Action,
Xx. Introduction,
In its order of February 5, 1970, the district court held that
an acceptable desegregation plan would have to meet sixteen requirements
which were specifically set forth in the order 3¢ Some of the quirements specifically set forth in the order. me oO Ie requirements
are framed in mandatory terms such as number three for desegregation of the
faculty "so that the ratio of black and white faculty members of each school
shall be approximately the same as the ratio. i. thereon the system"
and number five "that no black school be operated with an all-black or
predominantly black student body." Number eight is an authorization to
utilize a particular desegregation technique, non-contiguous zones, rather
than a requirement. Others, although framed as requirements, are drawn to
allow leeway for practical considerations incident to the operation of the
school system. These include number six calling for the assignment of pupils
80 that "as nearly as practicable the various schools at various grade levels
: ‘ 1
have about the same proportion’ of black and white students, i=’ and number
seven providing that transportation be offered on a uniform racial basis
to children who live farther from the school to which they are assigned
than the Board determines to be walking distance."
2Y The requirements follow in general the "legal and practical considerations"
which the court had outlined for the guidance of the consultant it had appointed
as well as the School Board in preparing an acceptable desegregation plan,
District court Opinion and Order filed December 1, 1969, pp. 7 - 10 (mimeo. text).
31 ; ; ;
ZY The desegregation plan approved by the court provided for student populations
in the various schools ranging from 9% to 41% black. See Order filed February
5, 1970, Exhibit H (mimeo. text). i
2
For purposes of review by this court, we sce the issue as
being whether the district court properly exercised its discretion in
setting these requirements once it had found residential segregation,
for which the State was in major part responsible by virtue of its actions
in numerous fields, including,inter alia, its placement of schools under the
dual system to serve racially identifiable neighborhoods, In this connection
we note that until February 5, 1970, the court generally deferred to the
Board of Education with respect to the specific requirements of any plan.
At that point, however, it could defer no longer. Alexander commanded action,
Furthermore, the Board had failed several times to formulate a plan that woulc
pass constitutional muster. In addition, the Board in carrying out the
existing plan, approved by the court for the 1969-70 school year, had left
yt All 1 Es 1" 32/ - N1 y 3 5 ~ r 1 8 wide" "performance gap’: that plan promised to bring 4,245 black pupils
into the white schools but it delivered only 1,315 black pupils, These failures
invited active participation by the court in the formulation of a desegregation
plan that would "work." In responding to this situation, the trial court did
precisely that which this Court, sitting en banc, commanded in Nesbit, supra
at 1042: it chose between plans tendered and made "modifications and refine-
ments that will achieve a unitary system."
2 Memorandum Opinion filed November 7, 1969, p. 2 (mimeo. text).
TE yr —— pn re . . va - . . ~ -iins —- . .- - . . ' or . a See ——————— — Ser————————
The district court in this case concluded that any acceptable
plan must disestablish the all-Negro and predominantly Negro schools and
provide "as nearly as practicable" for "about the same proportion of black
and white students" in the various schools al various grade levels. The
Board's plan failed to meet these requirements in several respects. The
consultant's plan filled these gaps. Acting in the manner we believe re-
required by Alexander and Nesbit, the court adopted so much of the Board's plan
with modifications as would afford a unitary system without "black" or "white"
schools, but "just schools." ~Further, in accord with Alexander, the court
provided that while the system was "being operated as a unitary system," it
vould "hear and consider objections thereto or proposed amendments thereof."
Alexander v. Holmes County, supra at 21; district court Order filed February
5, 1970, p. 7, para 22 (mimeo. text).
We consider in this section the propriety of the requirements
5, 6 and 7 set by the district court. These requirements necessitated modi-
fication of the Board's plan to assure the disestablishment of the all-Negro
and predominantly Negro schools and the adoption of techniques to achieve that
33
vests 22 Ve do not discuss directly the authorization of the court in
- -
37 Ve do not feel it necessary to discuss the correctness of the court's
requirements that desegregation of the faculty be accomplished "by assigning
faculty . . . so that the ratio of black and white faculty members of each
school shall be approximately the same as the ratio of black and white faculty
members throughout the system." The November 17, 1969, plan proposed by the
School Board had provided for accomplishment of this result "where practicable"
(see Opinion and Order of the district court dated December 1,1969, p. 2), and
the appellants do not appear to take issue with the requirement. Since the
terms of the court's order in this regard follow precisely the provisions of
this Court's order in Nesbit v. Statesville City Board of Fducation, supra at,
1024, as well as the en banc ruling of the Fifth Circuit in Singleton v. Jackson
Munic, Separate School Dist., No. 28261 (December 1, 1969), there would appear
‘to be no basis for any such contention by the Board. See United States v.
Montgomery County Board of Ed., 395 U.S. 225 (1969), upholding a district court
order drawn in these terms. NEA believes that such faculty desegregation decrees
can and should be implemented by sound practices and policies which do not impinge
arbitrarily on individual teachers. Although the issue is not presented here,
NEA believes that such arbitrariness can be avoided by involving the faculty in
drawing up plans to implement the faculty aspects of desegregation decrees.
“3.
paragraph 8 of its Febery 5 order for plans providing for "noncontiguous
zones," NEA's Executive Committee by resolution (quoted at page 3 of NEA's
Motion for Leave to Participate which is atlached to this brief) 3a recognized
this as an "acceptable" technique to accomplish desegregation. The Board
proposed such zones in its July 29 plan which was approved by the court in
its open of August 15, 1969, and there is presently in operation noncontiguous
zone school assignments for some 3,000 students who were reassigned from
all-black inner city schools to outlying predominantly white schools,
Thus, the authorization for noncontiguous zones in the February 5 order did
not constitute a departure from, but a continuation of, the law of this
~30-
2. The DPistrict Court in ¥quity Has
Broad Discretion to Frame a Remedy
for Wrongful Action.
©
Frcm the outset of school desegregation, it. has been recognized
that the district courils are invested with broad powers to grant relief from
racial discrimination in the public schools. The seminal declaration came
in Brown v. Board of Education (Brown II), 349 U.S. 294 (1955), when the
Supreme Court remanded the cases before it to the-trial courts in recogni-
tion of the fact that "[£Tull implementation of these constitutional principles
| 34/
[enunciated in Brown I] may require solution of varied local school problems."
Such problems -- including those "related to administration, arising from
the physical condition of the school plant, the school transportation system,
personnel, revision of school districts" -- were to be appraised "by the
courts which originally heard these cases. . . ." And those trial courts in
turn were to "be guided by equitable principles" in "fashioning and effec-
tuating" decrees. Brown II, supra at 299,300.
Since Brown IT, the Supreme Court has pressed the district courts
to exercise their broad powers in order to eliminate segregated schooling
"root and branch," Green v. County School Board, supra, 391 U.S. at 438. In
this connection the Court has declared that the district court not only has
the "power" but in fact "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." Louisiana v. United States, 380 U.S.
145, 154 (1968), quoted in Green, supra 438 n.4. To this end, district
courts should "retain jurisdiction until it is clear that disestablishment
34/ The Court's very considerable attention to the problem in Brown II is
related in United States v. Montgomery County Bd. of FEd., 395 U.S. 225, 220
(1969).
4 Lit 72
has been achieved." Raney v. Board of Education, 391 U.S. 443, 449 (1268).
fhere necessary district courts may even require local authorities "to
raise funds adequate to reopen, operate, and maintain without racial dis-
crimination a public school system," Griffin v. School Board, 377 U.S. 218,
" er ca
35 / 3
233 (1964). More recently, the Supreme Court noted the "particular rele-
vance" of a decree (a) requiring "affirmative action" by local authorities
and (b) in the event such authorities failed to comply in good faith, then
providing for "the appointment . . . of a master or panel of masters" to
take the required action, farter v. Jury Comm'n of Greene County, 38 U,S.L.W. 2
4082, 4088 n. 46 (Jan. 19, 1970), quoting from Mitehell v. Johnson, 250
F. Supp. 117, 123-2..{D. Ala. 1006) 28 In short, the Supreme Court has
made it abundantly clear that the district courts have the power, and the
duty as well, to fashion remedies particularly designed to extirpate racial
segregation in the public schools.
35/ In Turner v. Goolsby, 255 F. Supp. 724 (S.D. Ga. 1965, supplemental
opinion 1966), a three-judge district court appointed a receiver to
manage the property of the school system. And in another equal protec-
tion case, Swann v. Adams, 263 F. Supp. 225 (S.D. Fla. 1967), a three-
judge district court struck down the State's reapportionment plan and
instituted its own plan.
36/ Provision for appointment of a master to manage the Lowndes County jury
system was made bya three-judge court in White v. Crook, 251 F. Supp.
01 (M.D. Ala. 1966), in the event the jury commissioners failed to
carry out a plan to eliminate discrimination.
3. The District Court Properly Exercised Iis 3 p.
1. 4 1 1 er hale IA 11 Ae oe ai +h PF Smart ff Discretion in Setting the Requirements for
an Acceptable Desegregalion Plan,
a. Zlimination of Predominantly Black Schools.
In paragraph 5 of its order, the trial court declared that "no
school [shall] be operated with an all-black or predominantly black student
body." This requirement was imposed only after the court found extensive
segregation attributable to public (official) action (see ppl4-18, supra).
: rn ear J
Although we have set forth above (.supra. pp.19 -25) our view that continued
operation of substantially black schools would constitute a violation of
the School Board's duty under the Fourteenth Amendment, we show in this
section of our brief that this Court need not reach the constitutional
issue, There is ample support for the conclusion that the district court
was properly exercising its discretion to frame the appropriate equitable
remedy in setting the requirement for elimination of predominantly black
schools,
As a court vested with broad equitable powers, the trial court
had the authority to grant complete relief, This authority inelnded the
drawing of an order which would not only eliminate exiwting racial dis-
crimination and the effects of past discrimination in the school system,
but also "would bar like discrimination in the future." Green, supra
at 438 n. 4, and cases there cited.
NEA believes that the utilization of this power by the trial
court to bar predominantly black schools was proper. As we develop below,
infra, pp. 37-39, the dissolution of the predominantly black schools in
the Charlotte-lMecklenburg system is consistent with sound educational
practice. The students in the system should benefit from the modifica-
Rg
tions ordered by the court.
Recent opinions of the Supreme Court, as we have said, make it
clear that the results of de jure segregation must be undone, In Green
the court commanded that "racial discriminawion" be eliminated "root and
branch," 391 U.S. at 437-38. In Raney the Court specifically fastened
on the district courts the duty of continued supervision over the "dis-
establishment of state-established segregated solond systems, 391 U.S.
at 449. Without question, the predominantly black-schools in Charlotte
were the fruit of a "etitlomeelabiihed segregated system, The Constitu-
tion, then, required more than a prohibitory decree; it required affirma-
tive action "to bring about an Sriteaynton, unitary school system in which
there are no Negro schools and no white schools -- just schools," United
States v, Jefferson County Board of Education, 380 F.2d 385, 389 (5th Cir,
1967) (en banc). The court was, accordingly, justified in concluding that
the momentum of officially sponsored segregation in Charlotte, including
the dual school system as well as the residential segregation, was such as
to render it impossible for a unitary system to be achieved if the predomi-
nantly black schools were permitted to remain,
of particular importance in this respect is the Fifth Circuit's
decision in Henry v. Clarksdale Municipal Separate School Dist., 409 F.2d A hh 3 t
682 (1969), cert. denied, 396 U.S. 940 (1969). There the court of appeals
reiterated that one "basic criterion" for any plan is "promotion of desegregziion.
See also, Davis v. Board of School Commissioners of Mobile, 393 F.2d 690, 694
(5th Cir. 1965). This criterion fixes on the board the duty of taking "affirmative
action that will tend to eradicate all vestiges of the dual system," 409 F.2d at &:
’
p~
Specifically, an "effective plan" should produce "desegregated faculties,
-3 lp
staff, facilities, transportation, and school activities (such as athletics)
along with integrated student bodies." If, on the contrary, "all-Negro schools"
or only a "small fraction of Negroes enrolled in white schools" remain, then
"as a matter of law, the existing plan fails to meet constitutional standards as
established in Green and its companion cases." 409 F,2d at 689 (1969),
Other courts have also read Green to require a board that is dis-
establishing a dual school system to eliminate its all-black schools, United
States v. Greenwood Sep, School District, 406 F.2d 1086 (5th Cir. 1969), cert.
enied, 395 U.S. 907 (1969); United States v. School District 151, 286 F., Supp. bJ
Vv.
786 (N.D, T11, 1068), aff'd, 404 °P.24 A125 (7th Cir. 1963); but ef, F113
Board of Public Instruction of Oranse County, Civil No, 29124 (5th Cir. Feb,
3l/ *
y7, 1970); Carr v. Monteomery County Bd, of Educ., Civil Action No, 2072-N
(M.D. Ala, Feb, 25, 1970); Davis and United States v. Mobile County Bd, of
School Commissioners, Civil Action No. 3003-63 (S.D. Ala, Jan, 31, 1970)
appeal by both plaintiffs vending in 5th Cir, ): Calhoun v, Iatimer, Civil 1%) A 1 PRT LAS FAA
Action No, 6208 (N,D, Ga, March 20, 1970).
In light of Henry, Brewer, and other decisions applying Green and
Alexander, we believe the court below could not have abused its discretion
in ordering the elimination of predominantly black schools, Paragraph 5 of
its order was constitutionally required. However, whatever conclusion one
may reach on this constitutional question, it is nevertheless clear from .
Henry, Green and Raney that such a remedy was at least an appropriate exercise
of the trial court's discretion,
37 the court there permitted a plan to stand continuing three all-black
schools at least for the current school year.
Db, Racial Distribution,
Paragraph 6 of the court's order provided that the Board must
assign pupils to each public school on a basis reflecting "as nearly as
practicable" the racial composition of the school system, 71% white and
2% black.
In establishing this goal, the court did no more than pursue means
identical to those followed by the United States Government, inen federa
courts and the Charlotte-Mecklenburg Board itself in dealing with discrimination
and segregation. Thus, the.Board's proposed plan dated November 17, 1969,
proposed "to limit schools to vhich white students are assigned to those
schools in which it is possible to provide a student population which is
at least 60 per cent white." See Opinion and Order of the district court
filed December 1, 1969, p. 1 (mimeo. text). Recently, the Attorney General
in a lengthy formal opinion dated September 22, 1969, approved an order of the
"Secretary of Labor conditioning the award of federal Sorstmetion contracts
in the Philadelphia area upon the formal agreement of the contractors to seek
to fulfill specified racial ratios in hiring construction workers for such
projects, The order was challenged as EE and unconstitutional in the
United States District Court and was recently unheld, Contractors Association
of Fastern Pennsylvania, et al. v. Schultz, Civ, No, 70-18 (Mem. Op., March 13,
1970), So, too, in United States v. Montgomery Bd. of Ed., 395 U.S. 225, 233-34,
(1968), the Supreme Court specifically approved the trial court's order
+36
Roliing as a goal the requirement that "in each school the ratio of white
to Negro faculty members is substantially the same as it is throughout the
system." Id. at 232. According to the Court, the virtue of such a formula
is that it Yermontees to work, and promises realistically to work now!!!"
Id. at 235, | ~
The goal used in the case at bar is almost identical to the
formula employed in the Vonteomery case. Here the pupil ratio in each school
is to reflect "as nearly as practicable" the ratio of whites to blacks
throughout the school system, In plain terms, it gives the Board a clear
understanding of the ohiective sought and yet avoids absolute rigidity and
inflexibility.
As applied in this case, moreover, the goal holds out promise
not only of desegregating the schools, but also of preventing resegregation,
Too often school desegregation has been followed by community resegregation,
White students have transferred from integrated schools; and white parents
have pelcaated their homes in the remaining white-school areas of the comm ity.
The court had specifically found this process to have occurred in Charlotte.
300 F. Supp. at 1368, 1371. Under the trial court's order there is no in-
. ducement for a family to relocate its home or for a student to transfer within
the county. All schools within the system are to absorb black and white students
and to share in the task of “desegregation. Thus, on’ the one hand, the obligation
to tener rdniis is borne by the entire community, and on the other, the plan
offers prospects of eliminating the effects of past discrimination and barring
"like discrimination in the future." Green, supra at 438 n. 4, quoting louisiana
v. United States, 380 U.S. 145, 154 (1965). See also, Henry, supra, 409
F.2d at 689. It is well recognized that a court possesses the power to as-
sure that its decrees will be effective and cannot be undermined.
yy
But if these PES, should be considered to be insufficient
» J stification as a matter of constitutional vow, the court was still well
within its prerogatives in setting this racial ratio as a goal as a matler
of equitable remedies. Courts have long recognized in this regard that
vhuity has power to eradicate the evils of a condemned scheme by prohibition
of the use of admittedly valid parts of an invalid whole." United States
v. Bausch & Iomb Co., 321 U.S. 707, 724 (1944). See also cases cited
note and accompanying text, supra, p. . That principle applies
with particular force where, as here, human rights are at stake,
Apart from the constitutional principles served by the courti's order,
NEA believes that paragraphs 5 and 6 are here consistent with sound educational
practice, Studies show that integration can be aptly successful. in
school systems having a racial distribution comparable to that in the
od
Charlotte-Mecklenburg system. Under these conditions black students attend-
ing itenmertiad schools surpass the achievements of black students in all-black
schools, At the same time, white pupils score just as high as comparable
pupils in all-white classrooms , 2 The trial court made similar findings in
its Opinion and Order of April 23, 1969. 300 F. Supp. 1358, 1368-69,
Furthermore, integration can diminish the adverse educational :
effects caused by inferior economic and soelul status, Sues socio-economic
factors are at play in the Charlotte-Mecklenburg school system articularly
bp h Oo y J Db J
8 va ‘ . ‘ 5 :
38/ Coleman, Fguality of Educational Opportunity 22 (U.S, Office of Education
11966); U.S. Commission on Civil Rights, Racial Isolation in the Public Schools,
Appendix 180 (1967); Division of Research, Office of Research and Evaluation,
New York State Education Department, Racial and Social Class Isolation in the
Schools, 238-240 (1969).
n
among the Negroes. The court below found the "economics of the situation"
are that Negroes in Charlotte have "earned less money" and that 95% of them
live together in the poorer neighborhoods of the central city and northwest,
300 ¥. Supp. 1358, 1365-66, The court also noted that in this school system
there is a performance gap between pupils in all-white schools and those in
all-black sehrole, 20 This, of course, was to be expected. Studies by James
and ction’? show that the character of the community has a strong effect on
pupil achievement, To meet the problem created by these socio-economic factors,
integration -- not segregation -~ is needed, Segregation tends to intensify
the effect of inferior social and economic conditions among the Negroes. On
the other hand, the prevailing thrust of 300 segregation studies reviewed by
Weinberg was that greater gains at lesser costs were made when lower socio-
economic children were educated in a setting with middle class children as
compared with compensatory programs in predominantly lower-socio-economic
settinen 2
It must be emphasized in this respect, that the remedy fashioned
by the court in its order is mot much different than the remedy employed earlier
by school authorities in the nation-wide effort to eliminate the educational
A)
Oo id
39 See Opinion and Order of December 1, 1969, p. 4 (mimeo. text); Findings
filed March 23, 1970, p. 9. |
AY James, Wealth, Exmenditures and Decision-Making for Education (1963),
pp. 129-132; Nort & Cornell, American Schools in Transition (1941), pp. 114-18;
Ross, Administration for Adaptability (Rev. ed. 1958), pp. 164-181,
LY
Weinberg, Desegregation Research: An Appraisal (1968), pp. 277-280,
ss PH
deprivations of rural America, As a result of that effort {the number
; of single-teacher schools was reduced from 156,066 in 1927-28 to 6,500
. od L 42/ . ne g of 1 1965-66, Similarly, the number of school systems was reduced from
127,422 in 1931-32, to 18,904 in 1969-70. That consolidation eliminated
nearby schools for many families and required extensive bussing of children
to the villages. It involved costs and inconvenience and aroused resistance
over the loss of loc ally-basecd schools, But in-terms of the improved
educational opportunity y provided the a budenite, it was worthwhile and con-
structive, In fact, according to Swanson, the most important effect of
school consolidation was the educational gains produced by bringing to-
gether laboring class children of the farms and middle-class children of
44 /
the village,
Accordingly, requirements 5 and 6 of the trial court's order
are not only correct as a matter of legal principle, but, in NEA's view,
are consistent with sound educational policy.
£2 NEA Research Div., One Teacher Schools 'oday (Research Monograph, 1960
M-1) p. 9; U.S. Office of Educ., Statistics of State School Systems,
1965-1966, p. 4.
V4 NEA Research Div., Estimates of School Statistics, 1969-70 (R.R. 1969
R15) p. 16,
2s
vanson, "Contemporary Challenges: Monitoring Human Inputs into the
iscal Planning for Schools in Transition in Proceedings of
tional Conference on School Finance, 80-84 (1970).
Schools, ? Fisc
the Twelfth Na Na
~40-
c. Provision of Transportation.
The trial court's order of February 5, 1970, requires that
"transportation be offered on a uniform non-racial basis to all children
whose attendance in any school is necessary 1o wade about the reduction
of segregation, and who live farther. from the school to which they are
job
) assigned than the Board determines to be walking distance." It found as
fact that "there is no way" to desegregate the Charlotte schools in the
heart of the black community without providing such transportation (Find-
ings of Fact filed March 23, 1970, p. 10). Yet, as we show below, the
lower court's order in this respect is not a substantial advance or extension
of present policy. Rather it is simply a recognition that the Charlotte-
Mecklenburg public school system and others are now actively engaged in
the business of transporting students to school and that such service
must be continued and harmonized with a program of desegregation.
Bussing school children is a fact of life in the United States.
In 1964, about 15 million public school children
traveled to school on school-leased or owned car-
riers each school day. This figure represents
about 40 percent of the Nation's total school en-
rollment and does not include children who use
non-school public transportation, [U,S. Commission
on Civil Rights, Racial Isolation In the Public
fine Schools, 180 (1967). ]
yf A
In every school year for the last fifteen there has been a substantial
increase in he Faien of pupils transported. In 1954-55 there were
9,509,699 pupils using school transportation, and by the school year 1967-68
the figure reached 17,271,718. NEA, National Commission on Safety Education,
1067-68 Statistics on Pupil Transportation 3 (pertinent figures from this study
are set forth in Chart I attached).”
In North Carolina bussing is more “extensive than the national
average: 54.9% of the average daily attendance in the public cehiools was
transported by bus during the 1968-69 school year (Findings, p. 2). The
figure for Charlotte-Mecklenburg was 33%, if the 5,000 pupils transported by
city busses at public expense are counted (Findings, pp. 2-3). Indeed,
bussing is actively supported by the State of North Carolina, Pursuant: to
Chapter 115, §180-192 of its General Statutes, the State bears approximately
one-half of the transportation cost for children who live more than 1 1/2
miles from their school (Findings, p. %Y. Accordingly, it was no exaggeration
for the court to conclude that the school bus occupies an "indispensable
position" in public education in North Carolina (Findings, p. 1).
16 Youlh of The tule) comits dries Of February 5, 1970, the
Charlotte-Mecklenburg School System would extend bus service to a maximum of
-}
13,300 additional children (Findings, p. 19). That would create only a modest
increment ‘in the system's budget. As ma tters now stand, the Charlotte-~
. y J
Mecklenburg, syst em transports 23,600, and pays the fares for an additional
No
5,000 pupils using public transportation, The annual con’ averages ‘$39.9
per pupil and the system cost is about $1 million per year. In all, trans-
portation te accounts for 2% of the school budget (Findings, pp. 3-4). The
additional costs resulting from the court's IRN would amount to a maximum
Ee :
of $532,000 and raise the cos +t of transport ation from 29 to 2.6% of the
system's operating budget which for 1969-70 was $57,711,344 (Findings,
PD. 4; 21),
Notwithstanding the increase in transportation costs necessitated
by the courl's order, Charlotte-Mecklenb urg's transportation expenditure will
be well below the national average. In the school year 1967-68 the average
transportation expenditure (not including capital outlay) was 3.2% of the
total current expenditures, North Carolina ranked forty-fifth among the
states in the DoposyLane of school costs attributable to transportation, Its
percentage was 2.0, If we assume that the state-wide cost was boosted to
2.6%, as would be required here for the Charlotte-Mecklenburg system, North
Carolina would | rank fori: first among the States in the percentage of school
costs attributable to rene riatton. NEA, National Commission on Safety
Education, 1967-68 Statistics on Pupil Transportati (Washington, D. C.
1968)
5 : : :
= Pupil transportation cocts as a percent of current expenditures for the
public schools for each of the States are set forth in Chart II attached to
this brief,
43 {
“Nor do the transportation aspects of the court approved plan appear
to be unreasonable in other respects. The district court found that from the
standpoint of distance traveled, time en route and inconvenience, the children
bussed pursuant to the February 5, 1970, order "will not as a group travel
as far, nor will they experience more inconvenience than the more than
28,000 children who are already being transported at state expense” (Findings,
p. 8). Travel by school bus was also found to be safer than walking or
Sh riding in a private vehicle (Findings, p. 5y.. Wg IR
As a vital service in the field of education, bussing has an ap-
propriate role in desegregation of the schools, The School Board recognized
this fact when it filed its plan of July 20, 1869, That plan explicitly called
for bussing of over 4,000 black students, 25 Moreover, the courts have recog.
nized that bussing can be an essential element in desegregation programs, In
United States v. Jefferson County Board of Education, 372 F.2d 836, 898 (5th
Cir, 1966), the court ordered that where bus service was "generally provided"
the buses must be routed so as to transport every student "to the school to
which he is assigned" provided the school "is sufficiently distant" to qual-
ify for transportation "under generally applicable transportation rules.”
372 F.2d at 898, Similarly, in United States v. School Dist. 151, 286 F.
-
Supp. 786, 799 (N.D. Ill. 1968), aff'd, 404 F.2d 1125 (7th Cir. 1968), the
court said that remedying the effects of past discrimination required giving
consideration to "racial factors" in such matters as "assigning students"
46/ The Board's proposed February 2, 1970, plan also provided for bussing
of students to accomplish desegregation. E.g., Findings, pp. 11-12 (mimeo,
text).
dy
1
and providing "transportation of pupils.” The Eighth Circuit has also
recognized bussing as "one possible tool in the implementation of unitary
schools." Kemp v. Beasley, No. 19782, p. 14 (Slip. Op. March 17, 1970).
The fact that the provision of necessary transportation entails an added
cost does not render it objectionable, Griffin v. County School Board,
2
377 0.8, 218 (1964).
The School Board's provision of transportation in the past to
maintain its dual system of education affords additiomal legal foundation
for the court's order. The district court found that the suburban schools,
including the newest ones, has been located by the Board "far away from black
centers and where they cannot be reached by many students without transportation”
(Findings, p. 6). In other words, bussing has been a necessary adjunct
to the maintenance of substantially separate schools according to race.
Having used bussing to maintain its dual school system, it was fitting that
ihe Board be made to make bussing available on the same basis for disestab-
lishing that system.
47/ In this regard we note that the limitation on the court's jurisdiction
set forth in Section 407(a)(2) of the Civil Rights Act of 1964, 42 U.S.C.
2000c-6(a)(2), has no application to cases like that at bar which involve
the use of bussing to disestablish de jure segregation, United States v.
Jefferson Countv Bd. of FEduc., 372 F.2d 836, 880 (1966), aff'd on rehearing
en banc, 380 F.2d 385 (5th-Cir. 1967), cert. denied sub pom. Caddo Parish
School Bd, v. United States, 389 U.S. 840 (1967); United States v. School
Dist, No, 151 of Cook County, 286 F. Supp. 786 (N.D. 111.), aff'd. 04 F.20
1125 (7th Cir. 1968); Moore v. Tangipahoa Parish School Bd., Civ. No. 15556
(E.D. la., July 2, 1969); Keyes v. School Dist. No, 1, Denver, 303 F. Supp.
J y 3 J J J A
(D. Colo., 279, 289, 1969), stay pending appeal granted, F.24
(10th Cir. No. 432-69, August 27, 1969), stay vacated, 396 U.S, 1215 . The
statute explicitly recognizes the court's power to "insure compliance with
constitutional standards." The United States took this position in responding
on November 12, 1969, to a request of the Fifth Circuit in Singleton v. Jackson
Munic,. Sch, Dist,, No. 26285, for "pertinent legislative material" on Section
407, saying, inter alia, "Thus, it was recognized that the provisions of Title
IV [of the Civil Rights Act of 1964] would not restrict judicial action re-
medying unconstitutional student assignment policies." Memorandum of the
United States, p. 20.
ie 1
Finally, as a matter of educational policy, bussing provides
a broader base of pupils and thus extends the experiential horizons
of each child. Recent studies, already dealt with at pp. 37-39 supra,
show that integration generally is a positive benefit to the black
students, particularly those in the lower elementary grades, and is also
consistent with the continued progress of the white students, Accordingly,
to the extent that bussing on the order of that required for the
Charlotte~-Mecklenburg system fosters integrated schooling, it constitutes !
a plus for the educational system.
Inasmuch as bussing is a necessity for public school systems
today, is a recognized tool for assisting in desegregation of public
schools, and makes possible educational gains, we believe that the dis-
trict court's order in this respect is sound and reasonable
4,6
Vv
CONCLUSIO!
ES I aE RL TURAN LE Ll e———————— ——
NEA believes that the decision of the court below is sound
as a matter of constitutional principle, equity and educational policy.
Accordingly, its orders should be affirmed,
Respectfully submitted, =
Stephen J, Pollak
Richard M. Sharp
[ 73/4 Fifteenth Street, N.W.
: Washington, D. C. 20005
Of Counsel: David Rubin
1201 Sixteenth Street, NV.
Shea & Gardner Washington, D. C. 20036
734 Fifteenth Street, N.V,
Washington, D. C. 20005 Attorneys for Amicus Curiae
National Education Association
April 7, 1970
CHART I1.=-~GROWTH OF SCHOOL TRANSPORTATION IN THE UNITED STATES
Number of . Number of Expenditure
Pupils Vehicles (Excluding capital
Year Transported Used Outlay) -
1967-68 17,211,718 230,578 822,595,699
1966-67 16,684,922 «221,722 763,600,617
1965-66 16,423,396 210,692 696,325,42],
1964-65 15,413,000 206,000 642,627,000
1963-64 15,559,524 200,116 612,310,333
1962-63 14,247,753 195,397 578,017,634
1961-62 13,687,547 191,160 540,168,114
1960-61 13,106,779 185,869 505,754,515
1959-60 12,700,989 179,780 474,202,128
1958-59 32,021,372 176,222 441,402,585
1957-58 11,343,132 170,689 419,539,863
1956-57 10,683,643 164,863 382,751,973
1955-56 10,199,276 159,764 356,349,783
1954-55 9,509,699 154,057 329,035,047
Source: National Education Association, National Commission on Safety Education.
E————————— bj
1967-68 Statistics on Pupil Transportation. Washington, D.C.: the WEA. p. 3.
8.
CHART II-- PUPIL TRANSPORTATION COSTS AS A PERCENT
OF CURRENT EXPENDITURE FOR PUBLIC
Fa . SCHOOLS, 1967-68
(9
%)
. nN
2
United States
26. Oklahoma
22 Maryland 0.
28. Connecticut
l. West Virginia
2. louisiana
3. Wisconsin
\ »
Wyoming . Tennessee .
- 5. Mississippi ‘ 30. Delaware ‘
6. New Hampshire , Nebraska .
7. Vermont . Oregon .
8. Maine . Pennsylvania ‘
Montana
: South Dakota
11. Arkansas
12. Iowa
13. Kentucky
' Missouri
15. Minnesota
"36. Idaho
New Mexico
18, Alaska
Indiana
20. North Dakota
21. Georgia
22. Alabama
34. Virginia
(32>. Nevada
36. Michigan
37. Colorado
Ohio
39. New Jersey
New York
41. Rhode Island
South Carolina
Utah
44, California
45, Arizona
North Carolina
47. Florida
LJ
Ag
»
[]
[
»
LJ
»
A
*
:
N
N
O
N
N
O
O
O
D
N
U
M
L
U
I
N
O
O
O
O
D
V
L
V
W
O
U
O
R
R
I
D
P
U
N
M
I
N
U
T
L
N
O
O
A
N
0
L
w
w
h
r
b
d
b
b
b
d
b
d
b
b
d
d
D
b
D
D
D
D
d
D
E
S
D
S
d
P
D
M
P
U
V
U
L
U
L
O
T
U
I
T
U
M
O
M
O
N
U
L
I
O
I
O
O
V
W
O
W
O
O
M
P
M
P
A
N
A
N
N
N
O
O
D
O
O
W
O
O
M
R
E
R
N
M
N
W
E
S
T
O
O
I
T
I
T
W
D
O
E
R
N
N
N
N
N
N
N
N
N
N
N
N
N
N
N
O
L
W
L
W
W
L
W
W
L
W
W
L
W
W
L
W
W
L
W
W
L
W
W
W
W
Massachusetts ‘ 48, Texas .
24. Kansas . 49, Hawaii .
- Washington . 50. Illinois '
National Education Association, National Commission on Safety Education.
1967-68 Statistics on Pupil Transportation. Washington, D.C.: the Commission,
1968.
rT
CERTIFICATE OF SERVICE
The undersigned hereby certifies that he has this day served
copies of the foregoing Motion For Leave To File Brief Amicus Curiae and
D>
to Participate In Oral Argument And the accompanying Brief upon counsel
in this case by depositing copies of same in the United States mail, postage
prepaid, addressed to:
Brock Barkley, Esq.
Law’ Building t
Charlotte, North Carolina
William J Waggoner, Esq.
Weinstein, Waggoner, Sturges and Odom
1100 Barringer Office Tower
Charlotte, North Carolina
Gaston H. Gage, Esq.
Crier, Parker, Pos, Thompson,
Bernstein, Gage and Preston
1014 Law Building
Charlotte, North Carolina
Honorable Robert Morgan
Attorney General
State of North Carolina
Raleigh, North Carolina
James H. Carson, Jr., Esq.
Law Building
Charlotte, North Carolina
Benjamin S. Horack, Esq. | ‘
806 East Trade Street
Charlotte, North Carolina
Whiteford S. Blakeney, Esq.
North Carolina National Bank Bullding
Charlotte, North Carolina
William H Booe, Esq. r
Law Building ;
Charlotte, North Carolin
EO
1
Conrad O. Pearson, Esq.
10 ee Lo an
> 2035 East Chapel Hill Street
" : : Durham, North Carolina
Goi
J. LeVonne Chambers, Esq.
Adam Stein, Ezq.
Chambers, Stein, Ferguson & Lansing
216 Vest Tenth Street | v
Charlotte, North Carolina
Jack Greenberg, Esq.
James M Nabrit, III, Esq.
Norman Chachkin, Esq.
10 Columbus Circle
- ~ New York, New York
Honorable John Mitchell
Attorney General of the United States
Department of Justice
‘Washington, D. C.
Jerris Leonard, Esq.
Assistant Attorney General
Civil Rights Division
So United States Department of Justice
! Washington, D. C.
This 7th day of April, 1970.
1 ret ds (2t
h
<
Attorney for National Education
Association, Amicus Curiae. [||d62dda80-80b7-497f-a501-560a5cbefae8||]