Wheeler v. Durham City Board of Education Appellants' Brief

    I n  t h e

UnlUb S>UU% (Erntrt nf ApjjpeIb
F ob th e  F ourth  C ircu it  

No. 9630

W arren  H . W h eeler , et al., and 
C. C. S p a u l d i n g , III, et al.,

Appellants,
-v -

T h e  D u rh a m  C ity  B oard of E ducation ,

Appellee.

APPEAL PROM TH E UNITED STATES DISTRICT COURT FOR THE 
MIDDLE DISTRICT OF NORTH CAROLINA, DURHAM DIVISION

APPELLANTS’ BRIEF

J ack  G reenberg 
J am es M. N abrit , III 
D errick  A. B ell

10 Columbus Circle 
New York 19, New York

Conrad 0 .  P earson 
M . H u g h  T hom pson  
W illiam  A. M arsh , Jr.

203% East Chapel Hill Street 
Durham, North Carolina

J. H. W heeler
116 West Parrish Street 
Durham, North Carolina

F. B. M cK issick
209% West Main Street 
Durham, North Carolina

Attorneys for Appellants



I N D E X

Statement of the Case ......................................................  1

Questions Involved....... .......................................................  6

Statement of Facts ............................................................ 7

A r g u m e n t ..............................................................................  15

PAGE

I. The School Board Should Be Ordered to Re- 
vise Its Racial Attendance Area Maps to Estab­
lish a Non-racial Method for Initially Placing 
Pupils ........................................................................  15

II. The School Board’s Policy of Placing Teachers 
on a Racial Basis in a Segregated Pattern 
Violates Appellants’ Rights to Attend a Non-
discriminatory School System............................... 20

III. The Court Below Erred in Failing to Prohibit 
the Planning of New School Facilities So As 
to Promote Segregation ....................................... 24

C o n c l u s io n ............................................................................  26

T able  of Cases

Bell v. School Board of Powhatan County, Va., 321
F. 2d 494 (4th Cir. 1963) ..............................................  18

Board of Public Instruction of Duval County v. Brax­
ton, 326 F. 2d 616 (5th Cir. 1964), cert, denied, 377 
U. S. 924 (1964) .......................................................21, 23, 25



n

Bradley v. School Board of the City of Richmond, Va.,
317 F. 2d 429 (4th Cir. 1963) .......................................  18

Brooks v. County School Board of Arlington County,
Va., 324 F. 2d 303 (4th Cir. 1963) ...............................17, 22

Brown v. Board of Education, 349 U. S. 294 ....... 22, 23, 25
Buckner v. County School Board of Greene County,

Va., 332 F. 2d 452 (4th Cir. 1964) .............................18,19
Bush v. Orleans Parish School Board, 308 F. 2d 491 

(5th Cir. 1962) ................................................................  20

Calhoun v. Latimer, 321 F. 2d 302 (5th Cir. 1962), judg­
ment vacated 377 U. S. 263 ..........................................  23

Cooper v. Aaron, 358 U. S. 1 ...........................................18, 24

Dillard v. School Board of City of Charlottesville,
308 F. 2d 920 (4th Cir. 1962) ....................................... 23

Dowell v. School Board of the Oklahoma City Public 
Schools, 219 F. Supp. 427 (W. D. Okla. 1963) ...........  22

Gibson v. Board of Public Instruction, Dade County,
Fla., 272 F. 2d 763 (5th Cir. 1959) .............................  20

Goss v. Board of Education, 373 U. S. 683 ...............18, 20, 23
Green v. School Board of City of Roanoke, 304 F. 2d 

118 (4th Cir. 1962) ........................................................ 18, 20

Jackson v. School Board of the City of Lynchburg,
321 F. 2d 230 (4th Cir. 1963)............ '.............................. 22

Jones v. School Board of Alexandria, Virginia, 278 
F. 2d 72 (4th Cir. 1960) ..................................................  19

Manning v. Board of Public Instruction, 7 Race Rel. L.
Rep. 681 (S. D. Fla. 1962) ............................................. . 22

PAGE

Northcross v. Board of Education of City of Memphis, 
302 F. 2d 818 (6th Cir. 1962)..... .....................................



I l l

Northcross v. Board of Education of the City of Mem­

PAGE

phis, 333 F. 2d 661 (6th Cir. 1964) ........................... 21-22
Norwood v. Tucker, 287 F. 2d 798 (8th Cir. 1961) .......  20

Taylor v. Board of Education of New Rochelle, 294 F
2d 36 (2nd Cir. 1961) ..... ................................................

Tillman v. Board of Public Instruction, 7 Race Rel. L 
Rep. 687 (S. D. Fla. 1962) ............................................

Vick v. County Board of Education, 205 F. Supp.
436 (W. D. Tenn. 1962) ..............................................  25

Wheeler v. Durham City Board of Education, 196 F.
Supp. 71 ............................................................................  2

Wheeler v. Durham City Board of Education, 309 F. 2d
630 (4th Cir. 1962) ..........................................................  2

Wheeler v. Durham City Board of Education, 326 F. 2d 
759 (4th Cir. 1964) .........................................................3,17

17

22



Httiteir ©mart nf Kppmhz
F ob th e  F ourth  C ircuit 

No. 9630

In t h e

W arren H . W h eeler , et al., and 
C. C. S paulding , III, et al.,

-v.

Appellants,

T he  D u rh a m  C ity  B oard oe E ducation ,

Appellee.

a p p e a l  p r o m  t h e  u n i t e d  s t a t e s  d i s t r i c t  c o u r t  e o r  t h e

MIDDLE DISTRICT OE NORTH CAROLINA, DURHAM DIVISION

APPELLANTS’ BRIEF

Statement o f  th e  Case

This is the third time this case involving desegregation 
of the public schools of Durham North Carolina has been 
before this Court. This appeal is by the plaintiffs, Negro 
school children and parents, from the District Court’s or­
der of August 3, 1964, with respect to the school board’s 
proposed plan for desegregation. The District Court in 
part disapproved the proposed plan sustaining certain of 
plaintiffs objections thereto, and ordered desegregation to 
proceed in accord with the court’s own plan, but declined to 
grant certain relief requested by the plaintiffs (113a).



2

Summary of Prior Proceedings

These consolidated actions were commenced in the Mid­
dle District of North Carolina in 1960. On July 20, 1961, 
the District Court filed an opinion (Wheeler v. Durham 
City Board of Education, 196 F. Supp. 71) finding that the 
Board operated a dual system of attendance areas based 
on race, but refused to consider the case as a class action 
and entered no injunction, although directing the board to 
reconsider the school placements of certain plantiffs who 
were found to have exhausted all administrative remedies. 
Subsequently, in April 1962, the district court denied all 
relief and dismissed the case, holding that plaintiffs were 
not entitled to a general desegregation order for the school 
system. This opinion is reported at 210 F. Supp. 839. 
Plaintiffs appealed and this Court reversed, October 12, 
1962, in Wheeler v. Durham City Board of Education, 309 
F. 2d 630. This Court’s opinion condemned the continued 
use of dual attendance zones for initial assignments and 
the discriminatory procedures for ruling on transfer appli­
cations (309 F. 2d at 632-633).

The Court noted that it was not necessary to discuss “ the 
instances, abundantly appearing in the record, of unfair­
ness and arbitrariness in the procedures imposed upon ap­
plicants for transfers to free themselves from the initial 
racial assignments” (309 F. 2d at 633). On remand, pur­
suant to this Court’s directions, the District Court entered 
an order on January 2, 1963 which required that the named 
plaintiffs be granted transfers as requested, contained an 
injunction against certain discriminatory assignment prac­
tices, and provided that the order remain in effect until a 
satisfactory desegregation plan was presented and ap­
proved.

In April 1963, the board proposed a desegregation plan; 
plaintiffs objected to it on numerous grounds; and after a 
hearing the trial court rejected the plan and ordered that



3

the school board grant pupils free transfers to desegre­
gated schools upon request in grades 1-9 in September 
1963. High school assignments remained as before during 
the 1963-64 term, and the board was directed to present a 
new plan for complete desegregation. The defendant 
school board appealed this order, entered July 24, 1963. On 
January 27, 1964 this Court affirmed the order as “ an ap­
propriate interim decree.” Wheeler v. Durham City Board 
of Education, 326 F. 2d 759, 760.

Proceedings Leading to This Appeal

The Durham City Board of Education filed a new plan 
for desegregation on or about April 28, 1964 (la-8a) and 
plaintiffs filed objections to it (9a-12a). The plan contains 
lengthy and detailed provisions for the assignment of pu­
pils. We have paraphrased and summarized some of the 
basic features of the plan which provide for assignment of 
pupils on the following basis:

(a) First grade pupils will be initially assigned in ac­
cord with an attendance area map adopted by the Board. 
They may obtain transfers out of their attendance areas 
by applying within 15 days. Such transfers “ shall be 
granted in the order received until the maximum capacity 
per class room shall have been attained”  (2a-3a).

(b) Other elementary pupils will be assigned to the 
school which they are now attending (3a).

(c) Pupils assigned to an elementary or junior high 
school outside their attendance areas may request to attend 
the school in their areas, by applying for reassignment 
during a 15-day period. Bequests shall be granted until 
capacity is reached (3a-4a).

(d) Pupils completing elementary school shall be as­
signed to junior high school in accord with a new attend­
ance area map (4a).



4

(e) Pupils completing junior high school shall be as­
signed to high schools under a feeder system by which 
graduates of Brogden, Carr and Holton are assigned to 
Durham High School and graduates of Whitted and Shep­
ard are assigned to Hillside High School (4a-5a).

(f) Junior high school pupils were assigned to the 
schools previously attended, except that Whitted pupils liv­
ing in the area of the new Shepard school were assigned to 
Shepard (5a).

(g) High School pupils were assigned to the school pre­
viously attended (5a).

(h) Reassignment requests may be made within 15 days 
after notification of initial assignment. Requests shall be 
granted in the order received until class capacity is reached 
(5a-6a).

Plaintiffs objected to the plan as inadequate and incom­
plete on several grounds. Some of the objections were 
that:

(a) The attendance area maps for initial assignments in 
elementary and junior high schools were drawn on a racial 
basis to segregate the races in the schools (9 a );

(b) the feeder system by which graduates of the all 
Negro junior high schools are assigned to an all Negro high 
school continues segregation (10a);

(c) the plan made no provision for placing teachers in 
the schools on a nonracial basis to eleminate the segregated 
pattern of such assignments (11a); and

(d) the plan made no provision for planning the size 
and location of new schools without regard to race or for 
revising existing plans prepared as a part of the segregated 
system (11a).



5

The Court held a full evidentiary hearing on July 9, 
1964. The parties filed suggested Findings of Fact and 
Conclusions of Law and the Court heard oral arguments.

On August 3, 1964, the Court entered an order stating in 
part (114a):

That the plan for desegregating the Durham City 
Schools, including the amendment thereto, is disap­
proved for the reason that the court is of the opinion 
that the school zone boundaries, with respect to ele­
mentary and junior high schools, in some instances 
have been drawn along racial residential lines, rather 
than along natural boundaries or the perimeters of 
compact areas surrounding the particular schools.

The Court then ordered that desegregation proceed on 
the following basis (114a-116a) :

(a) All pupils are to be initially assigned in accordance 
with the school board’s plan.

(b) All pupils are to be notified of their free choice to 
attend any school in the system. In the event of overcrowd­
ing, the school board can, with the approval of the Court, 
assign a child to the “ next nearest predominantly white 
school” rather than to the school requested.

The order was to remain in effect unless some other plan 
was presented to and approved by the Court. It provides 
that if no other plan is approved by the end of the 1964-65 
school term, or future terms, initial assignments are to 
again be made in accordance with the school board’s plan 
and pupils are to be given the same transfer rights (116a- 
117a).

The Court refused to grant plaintiffs’ request with re­
spect to teacher desegregation saying that consideration of 
the request “ is deferred until after the close of the 1964-65



6

school term” (117a-118a). The board was directed to make 
an administrative study of the problems involved and plain­
tiffs were given leave to make another application for this 
relief and directed to express themselves on the adminis­
trative and legal problems involved including “ the standing 
of the minor plaintiffs to question the policy employed by 
the defendant Board” (id.).

The order denied injunctive relief with respect to the 
size and location of new schools on the ground that “ these 
are considerations for the defendant Board, and are rele­
vant to this litigation only to the extent they have a bear­
ing upon the good faith of the defendant in eliminating 
discriminatory practices in the operation of the Durham 
City School System” (118a).1

Plaintiffs filed Notice of Appeal on August 27, 1964.

Questions Involved

1. Whether, where the trial court finds that school chil­
dren’s initial assignments are being made on the basis of 
attendance area maps drawn on a racial basis, a desegrega­
tion plan which allows the pupils thus placed relatively 
free transfers to other schools is constitutionally adequate, 
or whether plaintiffs were entitled to an order requiring 
a revision of the racial attendance area maps to establish a 
non-racial method for initially placing pupils in schools.

2. Whether the trial court erred in refusing to enjoin 
the school board’s practice of assigning school personnel 
on a racially segregated basis in a school segregation case,

1 An addendum to the order stated that more detailed findings 
were not made because of the time element but invited Counsel to 
request additional findings within five days. Plaintiffs’ counsel 
wrote to the Court within this period making such a request, but 
no additional findings have been filed.



7

where the plaintiffs have sought such relief for over four 
years and the school authorities have no plans for changing 
the practice and have continued to place large numbers of 
new teachers on a segregated basis each year.

3. Whether the trial court erred by refusing to enjoin the 
school board from planning the size and location of new 
school facilities on a racial basis so as to promote segrega­
tion, and refusing to order the board to plan new facilities 
so as to promote desegregation, where the board has con­
structed schools on a racial basis in the recent past, con­
tinues to use racial attendance areas, and is now planning 
a large construction program.

Statement o f Facts

The Durham public school system has about 15,400 pu­
pils, including roughly 7,000 Negroes (88a). During the 
1963-64 school year these pupils attended 19 elementary 
schools, of which eight were all Negro schools,2 two were 
all-white,3 and nine were predominantly white but attended 
by a few Negroes.4 There were four junior high schools;

2 The all-Negro elementary schools are Burton, Crest Street, 
Bast End, Fayetteville Street, Lyon Park, Pearson, Spaulding 
and Walltown (27a).

3 The all-white elementary schools are Olub Boulevard and 
Lakewood (26a; 28a).

4 The predominantly white elementary schools, and their 1963-64 
enrollments were (26a; 28a) :

School Whites Negroes
Edgemont ___________  _ ________ 312 9
Fuller ______________ ________ 71 40
Holloway Street __________________  407 37
Moorehead ___________  ___________  323 51
North Durham ___________________ 294 16
E. K. Powe ______________ ________ 477 1
Y. E. Smith ____________ ________ 547 4
George Watts _________ ________ 391 8



8

one all-Negro school and three predominantly white schools 
with a few Negro pupils.5 A new school with an all-Negro 
enrollment, called Shepard Junior High, was scheduled 
to be opened in September 1964. The two high schools 
were Durham High (with 1,662 while pupils and 22 Ne­
groes) and Hillside High (1,301 Negroes and no whites) 
(26a-28a).

The district court found that the school zone boundaries 
for elementary and junior high schools “ in some instances 
have been drawn along racial residential lines, rather than 
along natural boundaries or the perimeters of compact 
areas surrounding the particular schools” 6 (114a). Among 
the evidence on this matter were a number of maps, and 
plastic map overlays, showing the location of the schools, 
and the school attendance boundaries, as well as the Negro 
residential areas in the city.7 There was also statistical 
information indicating the number of Negro and white 
pupils residing in the various areas. The overall pattern 
was that the areas of the 14 predominantly white or all- 
white schools had 7,944 white pupil residents and 455 Negro 
pupil residents. The eleven all-Negro schools (including 
the new Shepard School) had 7,316 Negro pupil residents 
and 130 white pupil residents (of whom 54 were in one 
school zone—East End).

5 The Junior High Schools and enrollments were (26a; 28a) :
School Whites Negroes

Brogden __________________________ 560 23
Carr _____________________________  802 83
Holton ___________________________  531 15
Whitted _______________________   0 1,293

6 Note that the high schools have no attendance areas as such, 
but as they received pupils from designated junior high schools 
they do in effect have areas which are a combination of the junior 
high areas. See Plaintiffs’ Exhibit D-l-64 (56a-57a).

7 Plaintiffs’ Exhibits C-64, C-l-64, C-2-64, C-3-64, D-64, D-l-64 
and D-2-64. See stipulations at 37a-42a. See also 52a-57a.



9

The following facts illustrate the evidence indicated by 
the exhibits and testimony on the school areas for each 
level in the school system:

Elementary Schools

Four all-Negro elementary schools (Crest Street, Fay­
etteville Street, Pearson and Spaulding) have no white 
pupils living within the attendance area (31a). The Bur­
ton and Walltown areas have two white pupils in each 
zone; Lyon Park has 17; and East End has 54 (31a). Each 
Negro elementary school in Durham serves substantially 
the same Negro population as it served before desegrega­
tion.

(a) The Crest Street School was built about eight or 
nine years ago to replace a previously all-Negro school on 
the site. Before desegregation it served the Negroes in the 
neighborhood immediately adjacent to it. Now it serves 
substantially the same population (76a-77a).

(b) The Walltown school was built in 1948 to serve the 
Negroes living in the area adjacent to it (77a). Under the 
new school zones only two white pupils reside in the area 
(31a). The present attendance area embraces all the Ne­
groes in the neighborhood near the Walltown School ex­
cept those Negroes living on the west side of Sedgefield 
Street which forms the western boundary of the area (Ex­
hibit C-64).

(c) The Lyon Park School, built in 1928, served the 
Negroes in the area adjacent to it prior to desegregation 
(77a). The present attendance area includes about 514 
Negro pupils and 17 white pupils and includes the entire 
Negro neighborhood adjacent to Lyon Park School (Plain­
tiffs’ Exhibit C-64).

(d) The East End School, built in 1928 and partially 
rebuilt in 1963, has always been a Negro school serving the



10

Negro population in the area that surrounds the school 
(78a-79a)„ The new East End area has 54 white pupils 
and 724 Negro pupils (31a). The present East End attend­
ance area embraces almost all of the Negroes residing in 
the area around it, except about sixty Negro pupils in the 
Holloway School area and seventy in the North Durham 
area (Plaintiffs’ Exhibit C-64; 31a).

The eastern boundary of the East End attendance area 
follows an erratic line, including several turns, and runs 
very close to the Holloway School. East End is an over­
crowded school surrounded by under-utilized white schools. 
The estimated initial assignments for the East End School 
for September 1964 total 836 pupils (54 white, 782 Negro) 
and the capacity of the school is 720 pupils (32a-35a). The 
estimated numbers of pupils initially assigned for Septem­
ber 1964 at the North Durham, Holloway and Edgemont 
Schools, which border on the East End attendance area, 
are all less than capacity of those schools (id.). Holloway 
Street School has a capacity of 510 with 426 pupils (398 
white and 28 Negro) initially assigned for September 1964 
(id.). North Durham has a capacity of 390 pupils with 312 
pupils (294 white and 18 Negro) initially assigned (id). 
Edgemont has a capacity of 450 with 363 pupils (353 white 
and 10 Negro) initially assigned (id.). (The nearby Puller 
School, previously attended by some of the pupils in this 
neighborhood, will be used only for administrative pur­
poses in the future.)

(e) Both the Spaulding and Pearson School areas em­
brace entirely Negro residential blocks and no white pupils 
reside in these areas (Plaintiffs’ Exhibit C-64; 31a). How­
ever, large areas of both the Spaulding and W. G. Pearson 
zones are closer to the predominantly white Moorehead 
School than they are to the Spaulding and Pearson Schools, 
and portions of the Moorehead School area, populated by



11

white families, are substantially closer to Spaulding than 
to Moorehead (id.). The line separating the Spaulding area 
from the Moorehead area follows the street which divides 
the Negro and white neighborhoods (id.). The same is true 
with respect to the eastern boundary of the Fayetteville 
Street attendance area which includes all the Negro resi­
dential areas but does not include any white pupils within 
its boundaries (id.). The superintendent testified that the 
boundaries between all-Negro Spaulding and Pearson Ele­
mentary Schools has been changed “ just about every year” 
(Tr. 98).

The northeastern boundary of the W. G. Pearson and 
Burton Schools follows the Seaboard railroad tracks which 
separates the Negro and white neighborhoods (except for 
a small group of Negroes living on both sides of the tracks 
in the area between the white Smith and Burton Schools). 
The Seaboard railroad tracks cut across and divide parts 
of the attendance areas for two predominantly white 
schools, George Watts and Southside. Similarly, other rail­
road tracks and main arteries cut across elementary school 
zones- in the city. That is, pupils on both sides of such 
arteries attend the same school. Other examples are the 
Club Boulevard area, divided by a major highway; the 
North Durham area, divided by two railroad lines going in 
different directions; and the East End and Edgemont 
areas, divided by railroad lines.

The Superintendent of Schools testified, when questioned 
by the court with respect to the boundaries between the 
Spaulding and Moorehead schools:

Well, it wasn’t a matter of getting them to the closest 
school, entirely, Your Honor. It ’s a matter of chang­
ing these lines as little as possible from year to year 
back through the years. I think this has been true



12

many years ago, that you change the lines as little as 
possible in order that the child might continue his edu­
cation in the same school he was in (Tr. 96).

Under further questioning by the court as to whether or 
not “ this system honestly eliminated color consideration 
from the entire Durham School system,” the superin­
tendent replied, “ I don’t know the answer to that” (98a).

Junior High Schools

The junior high school attendance areas adopted for the 
all-Negro Whitted Junior High School and the new Shep­
ard Junior High School scheduled to open in September 1964, 
include almost all of the Negro junior high school pupils 
in the city (Plaintiffs’ Exhibit C-64). The Whitted area 
includes 1,085 Negro pupils and 28 white pupils (31a). 
The Shepard area includes 580 Negro pupils and no white 
pupils (id.). The other three areas include small numbers 
of Negro pupils: Brogden 14, Carr 59, and Holton 38 (id.). 
Generally, these junior high school lines follow the divid­
ing lines between the Negro and white neighborhoods ex­
cept that small portions of the Negro neighborhoods are 
zoned into the Carr and Holton Schools (Plaintiffs’ Ex­
hibit D-64).

High Schools

The proposed feeder system for high school assignments 
would result in the initial assignment of all graduates of 
the two all-Negro junior high schools, Whitted and Shep­
ard, to the all-Negro high school, Hillside High School. 
The graduates of the other three junior high schools which 
are predominantly white, would be assigned to the pre­
dominantly white Durham High School. White pupils in 
the Holton school area will travel across the Whitted



13

School area to reach Durham High School (Plaintiffs’ Ex­
hibit D-l-64).

All teachers and other professional personnel in the ten 
schools with all-Negro student bodies are Negroes and all 
such personnel in the other fifteen schools are white (29a). 
No white pupils have attended any of the schools with 
Negro teachers. The school authorities have no plans for 
ending teacher segregation (105a). During the past five 
years, from 81 to 111 new teaching personnel were em­
ployed in the public schools each year (30a). The School 
Board has continued to assign Negro teachers to the 
Negro schools and white teachers to the schools attended 
by white pupils under the pattern that existed before 
there was any desegregation.

At the time of trial no faculty had been assigned to 
the Shepard Junior High School which was scheduled to 
open in September 1964. About 567 Negro pupils and no 
white pupils were initially assigned to this school (34a).

The proposed desegregation plan does not include any 
statement with respect to locating new schools and addi­
tions to schools in such a way as to promote desegregation 
or indicate any change of the past practices of locating 
schools and planning their size on a racial basis. The su­
perintendent said that had not been discussed (73a). The 
superintendent acknowledged that the size and location of a 
school were factors which determined the area it would 
serve (ibid.).

The voters of the community recently approved a $3.5 
million bond issue for school construction and renovations 
(67a). The superintendent testified that only one new 
school site had been selected and that none of the proposed 
new schools or additions had been formally approved. 
The superintendent mentioned, and an exhibit (Plaintiffs’



14

Exhibit E-64) explained, a number of specific construction 
projects which are being considered (67a-72a).

The School Board has taken action to close the Fuller 
School which had 40 Negro and 71 white pupils during 
the 1963-64 term (26a; 28a) and has reassigned almost all 
of the Negro pupils who attended this school during the 
past year to the all-Negro East End School. The Board 
planned to open a new junior high school, Shepard, which 
it has located in the heart of an all-Negro neighborhood 
and to which it has assigned 567 Negro and no white pupils 
for September 1964 (34a-35a). The school’s capacity is 
510 pupils and the superintendent indicated he was already 
considering enlarging the school (32a; 70a).



15

A R G U M E N T

I.

The School Board Should Be Ordered to Revise Its 
Racial Attendance Area Maps to Establish a Non-racial 
Method fo r  Initially Placing Pupils.

The trial, court found, with ample support in the record, 
that the initial placement of pupils in the school system, 
including children entering school for the first time and 
those being promoted from one level to another, was made 
on the basis of attendance area maps drawn on racial lines. 
The lines effectively separate the Negro and white resi­
dential neighborhoods without regard for more natural 
boundaries and the capacity of school buildings. The zones 
were drawn in many cases to encompass the same Negro 
neighborhoods served by the all-Negro schools before there 
was any desegregation in the school system. All this 
abundantly appears from the evidence which has been de­
scribed in the statement of facts above.

The principal issue here is what must be done to rectify 
this situation. The trial court, while stating its disapproval 
of the proposed plan, ordered a plan which modified the 
school board’s proposal only slightly. The court’s order 
allows initial assignments to be made during the current 
year, and future years, on the basis of the school board’s 
plan and maps. The court’s modification was to slightly 
liberalize the transfer rules and procedures. The school 
board proposed to grant all transfer requests so long as 
there was no overcrowding as determined by a particular 
set of standards. The court adopted this same principle,



16

but altered the time limits for applications and provided 
a more general statement concerning overcrowding with an 
opportunity for the parties to apply to the court for ap­
proval of alternate arrangements in the event overcrowd­
ing prevented all transfers from being freely granted.

Appellants’ position is that the continuation of initial as­
signments on a racial basis promotes continued segregation, 
and that this cannot be justified by the fact that transfers 
are, or may be, relatively freely available. Appellants 
have no objection to a system of initial placements based 
on fair and non-racial attendance areas coupled with a 
free transfer policy.

There is ample precedent to sustain the proposition that 
school assignments based upon race should be enjoined. 
Indeed, in this very case, on the first appeal, when this 
Court condemned the practice of separate dual racial 
school zones for Negroes and whites, it stated that:

It is an unconstitutional administration of the North 
Carolina Pupil Enrollment Act to assign pupils to 
schools according to racial factors (309 F. 2d at 633).

This Court ordered an injunction “ against the continuance 
of the board’s discriminatory practices” (Id.). We submit 
that pupils are just as much assigned “ according to racial 
factors” when they are placed under racially gerry­
mandered school zones as they are when placed under 
separate maps for whites and Negroes. Actually paragraph 
3 of the order entered in this case on January 2, 1963 
(which remains in effect as pointed out in the addendum 
to the order of August 3, 1964) explicitly condemns “ any 
method of determining the placement of pupils in schools 
on the basis of racial considerations”, and might be thought 
to settle the matter if the trial court had not now approved



17

the continued use of zones found by the court to be “ drawn 
along racial residential lines” .8

In Brooks v. County School Board of Arlington County, 
Va., 324 F. 2d 303, 308 (4th Cir. 1963) this Court held that 
the “ transition from segregation to desegregation is not 
yet finished” where school zones originally established 
to maintain segregation were largely unchanged. Cf. Tay­
lor v. Board of Education of New Rochelle, 294 F. 2d 36 
(2nd Cir. 1961), where the court condemned gerrymander­
ing of school zone lines. The illegality of the continued 
racial feeder system for assigning all graduates of the Negro

8 The full text of the order of January 2, 1963 is set out at pages 
24-27 of the appendix to Appellants’ Brief on the last appeal to 
this Court. Wheeler v. Durham City Board of Education, 326 F. 2d 
759 (4th Cir. 1964; No. 9184). Paragraph No. 3 of that order pro­
vides as follows:

3. It is further Ordered that the defendants, their agents, 
servants and employees are restrained and enjoined from any 
and all acts that regulate or affect the assignment of pupils 
to any public schools under their supervision, management 
or control on the basis of race or color. The defendants are 
specifically restrained and enjoined from (a) using any meth­
od of determining the placement of pupils in schools on the 
basis of racial considerations when pupils first enter the 
school system, when pupils are promoted from elementary 
school to junior high school, or from junior high school to 
high school, or when pupils change their residences from one 
part of the area served by the school system to another part 
of the school system’s area; (b) using any separate racial 
attendance area maps or zones or their equivalent in determin­
ing the placement of pupils in schools; (c) from requiring 
any applicants for transfers to submit to any futile, burden­
some, or discriminatory administrative procedures in order to 
obtain such transfers, including (but not limited to) the use 
of any criteria or standards for determining such requests 
which are not generally and uniformly used in assigning all 
pupils, and the requirement of administrative hearings or 
other procedures not uniformly applied in assigning pupils; 
and (d) using any standards relating to residence, academic 
achievement, overcrowding or otherwise in determining such 
transfer requests which are not used in determining initial 
assignments of all pupils.



18

junior high schools to the all-Negro high school, and all 
graduates of the predominantly white junior high schools 
to the predominantly white high school, is equally obvious 
in the light of such precedents as Green v. School Board of 
City of Roanoke, 304 F. 2d 118, 120, 123 (4th Cir. 1962), 
and Bradley v. School Board of the City of Richmond, Va., 
317 F. 2d 429 (4th Cir. 1963).

This Court has emphatically pointed out that it is the 
duty of school boards to take steps to eliminate the system 
of segregation created by the states. Bell v. School Board of 
Powhatan County, Va., 321 F. 2d 494, 499 (4th Cir. 1963); 
Buckner v. County School Board of Greene County, Va., 
332 F. 2d 452, 454 (4th Cir. 1964); cf. Cooper v. Aaron, 
358 U. S. 1, 7.

In Goss v. Board of Education, 373 U. S. 683, 688, the 
Supreme Court, in condemning racial transfer procedures, 
made plain its assumption that initial placements based on 
race violated the Constitution, stating:

The recognition of race as an absolute criterion for 
granting transfers which operate only in the direction 
of schools in which the transferee’s race is in the ma­
jority is no less unconstitutional than its use for origi­
nal admission or subsequent assignment to public 
schools. (Emphasis added.)

Indeed this court’s recent decision pertaining to initial 
racial assignments made by dual school zones in the Buck­
ner case, supra, obviously applies with equal force to initial 
racial assignments made by gerrymandered zones. As 
stated in Buckner, supra at 454:

By initially assigning Negro pupils to segregated 
schools and then permitting them, only upon applica­
tion to the Pupil Placement Board, to transfer out of



19

these segregated schools, the School Board has in. effect 
formulated a plan which will require each and every 
Negro student individually to take the initiative in 
seeking desegregation. Naturally, as we have noted in 
Jones v. School Board of Alexandria, Virginia, 278 F. 
2d 72, 77 (4th Cir. 1960), because of the existing racial 
pattern, in most cases “ it will be the Negro children, 
primarily, who seek transfers.”

And later the court said:

If, as alleged in the complaint, students were ini­
tially being assigned to schools in a racially discrimina­
tory manner, “ the School Board is actively engaged in 
perpetuating segregation” (332 F. 2d at 455).

The Buchner case reasoning is precisely in point. Obvi­
ously, the Durham Board does encourage segregation by 
using gerrymandered school zones with the result that the 
vast majority of students of both races are initially as­
signed to schools on a basis which substantially perpetuates 
the segregated pattern. This system places all the weight 
of the governmental action on the side of the segregated 
pattern and leaves it to individual Negro students to at­
tempt to desegregate the school system one-bv-one. And, of 
course, the zoning pattern which places only a small handful 
of white children in the zones of the traditional all-Negro 
schools, virtually insures that these children will, because 
they are in a tiny minority, be encouraged by that circum­
stance to transfer out of their zones to predominantly 
white schools in other neighborhoods. This has in fact 
occurred in every such case.

The invalidity of the system is clear from the settled 
precedents. Appellants’ argument does not rest on the 
theory that the board is required to assign pupils so as



20

to achieve any particular racial proportions in the popula­
tion of any school. The argument made is that the school 
board does have an obligation to promote the elimina­
tion of the segregated system that it has created by in­
stituting a truly non-racial assignment system. And this 
argument is supported by a multitude of precedents con­
demning racial methods of assigning pupils. See, for ex­
ample, Norwood v. Tucker, 287 F. 2d 798 (8th Cir. 1961); 
Green v. School Board of the City of Roanoke, 304 F. 2d 
118 (4th Cir. 1962); Northcross v. Board of Education of 
City of Memphis, 302 F. 2d 818 (6th Cir. 1962); Bush v. 
Orleans Parish School Board, 308 F. 2d 491 (5th Cir. 1962); 
Goss v. Board of Education, 373 U. S. 683.

II.

The School Board’s Policy of Placing Teachers oil a 
Racial Basis in a Segregated Pattern Violates Appel­
lants’ Rights to Attend a Nondiscriminatory School 
System.

Segregation of teachers in public schools was and is an 
integral part of the segregated public school systems 
created by law. This proposition, which is surely self evi­
dent to anyone even slightly familiar with segregated 
school systems, is illustrated in a small, almost incidental, 
manner by Gibson v. Board of Public Instruction, Dade 
County, Fla., 272 F. 2d 763 (5tli Cir. 1959). In that case the 
school board, disclaiming discrimination, denied that one 
of its publications listing schools as “ Negro” and “ White” 
referred to pupils saying it meant only the personnel. 
With manifest understatement, Judge Rives wrote that: 
“ The distinction is not very meaningful so long as the 
schools having all Negro teachers also have all Negro 
pupils, and no other schools have any Negro teachers or 
pupils”  (272 F. 2d at 766).



21

The Durham school system continues the policy of the 
segregation era by assigning only Negro teachers to work 
in the all-Negro schools and only white teachers to work 
in the schools attended by white pupils. The Board ad­
mittedly has no plans to change this practice, although 
the complaints filed in these consolidated cases in 1960 de­
manded an end to teacher segregation, and plaintiffs re­
iterated their protests about teacher segregation in 1963 
and 1964 in objecting to two proposed desegregation plans 
which made no mention of the subject.

The North Carolina State Department of Public In­
struction allots the number of teaching positions for the 
Durham system on a racial basis, and the Durham authori­
ties who determine the actual hiring and placement of 
teachers do this on a racial basis (62a-63a). The record 
indicates the substantial numbers of new teaching em­
ployees who have been hired during the past five years 
(30a), and all have been placed in schools on a segregated 
basis (29a). 455 new teachers were hired between 1959 and 
1963 (30a). There were a total of 640 teachers in the sys­
tem (29a). Thus, the pattern of segregation which pre­
vails is largely the product of the continuing practice 
of assigning new employees to schools on a racial basis.

The trial court apparently rested its refusal to rule 
upon the matter of teacher desegregation on doubts as to 
the standing of pupils to litigate this issue, since its order 
asked that this issue be briefed again if the plaintiffs de­
mand was renewed in 1965 (117a-118a). We submit that 
both the Fifth and Sixth Circuits have quite correctly 
held that teacher segregation is an aspect of a segregated 
school system which can be corrected upon the complaint 
of pupils and parents. Board of Public Instruction of 
Duval County v. Braxton, 326 F. 2d 616, 620 (5th Cir. 
1964), cert, denied, 377 IT. S. 924 (1964); Northcross v.



22

Board of Education of the City of Memphis, 333 F. 2d 661 
(6th Cir. 1964).9

Furthermore, this Court has held that a complaint 
broadly seeking a transition to a racially nondiscrimina- 
tory school system was sufficient to bring before the court 
the issue of faculty desegregation. Jackson y. School 
Board of the City of Lynchburg, 321 F. 2d 230 (4th Cir. 
1963). This was, at the least, an implied ruling that teacher 
desegregation issues were properly a part of such cases, 
for unless this was so the ruling would have been a mere 
academic exercise.10

Certainly, there was nothing in the evidence to indicate 
that the school board had any administrative problems in 
connection with teacher desegregation which justified a 
postponement under the principles of Brown v. Board of 
Education, 349 U. 8. 294. The school board has never for­
mally considered the matter. The trial court’s order can­
not be supported by an assumption that a postponement 
was within equitable discretion absent any showing of 
justification for delay. This is particularly the case where 
litigation has been as prolonged as it has in Durham, and 
where segregation results not merely from inertia but also 
from the continuing policy of the board in placing large 
numbers of new teachers each year. Even an order directed 
only at nondiscrimination in placing new employees would 
soon substantially change the pattern, given the large 
teacher turnover in Durham.

9 District court opinions to the same effect are: Dowell v. School 
Board of the Oklahoma City Public Schools, 219 F. Supp. 427 
(W. D. Okla. 1963) ; Tillman v. Board of Public Instruction, 7 Race 
Rel. L. Rep. 687 (S. D. Fla. 1962) ; and see Manning v. Board of 
Public Instruction, 7 Race Rel. L. Rep. 681 (S. D. Fla. 1962).

10 Note also that, in Brooks v. County School Board of Arlington 
County, Va., 324 F. 2d 303, 306 (4th Cir. 1963) the court took occa­
sion to commend the board for its announcement of nondiserim- 
inatory personnel policies, urged by the board as evidence of its 
completion of the transition period.



While the trial court did direct the school authorities to 
study the matter during the present school year, the Court 
did not direct the board to prepare a plan for teacher de­
segregation as was done in the Braxton case, supra. Appel­
lants are aware that several courts have approved post­
ponement of the teacher desegregation issue. See, for 
example, Calhoun v. Latimer, 321 F. 2d 302, 311 (5th Cir. 
1962), judgment vacated 377 IT. S. 263. But appellants 
urge that postponement of constitutional rights in this 
matter as in others must be justified by appropriate equi­
table considerations, and that the Board seeking any delay 
bears the burden of justifying it. Brown v. Board of Educa­
tion, 349 U. S. 294.

Finally, it should be mentioned that the matter of teacher 
desegregation has an important bearing upon the desegre­
gation of pupils in the schools. This is patent in a school 
system where pupils have a degree of choice with respect 
to which school they will attend. Obviously, parents regard 
a school’s teaching staff as important in appraising the 
desirability of a school. In a practical view of a school 
system which has long been segregated, and is just begin­
ning desegregation, it is obvious that the existence of all- 
white and all-Negro faculties will encourage many parents 
to choose schools on the basis of the race of the teachers, 
and will thus foster continued segregation of pupils. There 
is no reason to believe that this is not at least as important 
a factor influencing choices as the race of pupils’ classmates, 
which was exploited by transfer plans like those condemned 
in Goss v. Board of Education, 373 U. S. 683, and Dillard 
v. School Board of City of Charlottesville, 308 F. 2d 920 
(4th Cir. 1962). Indeed, the mere fact that the school au­
thorities think the matter of a teacher’s race important 
enough to require a uniform segregationist practice, un­
doubtedly influences parents to place some value on it.

23



24

This flies in the face of the basic constitutional requirement 
that public school systems work to eliminate segregation. 
Cooper v. Aaron, 358 U. S. 1, 7.

III.

The Court Below Erred in Failing to Prohibit the 
Planning of New School Facilities So As to Promote 
Segregation.

It is elementary that one of the principal factors nor­
mally influencing the pupils who will attend a given school 
is the size and location of the school with reference to 
the pupils’ residences (73a). It is commonplace for schools 
to be constructed in order to serve a particular area. This 
matter is important even in the context of a free choice 
system, for obviously school accessibility will influence 
choice. In the present case the Superintendent testified that 
the matter of locating schools in order to promote de­
segregation had not been discussed (73a). But this school 
board has long constructed schools on a racial basis to 
serve the Negro populations in particular areas. This was 
acknowledged in the case of such elementary schools as 
Crest Street, Walltown and Lyon Park (76a-77a), and is 
obvious enough in the case of the Shepard Junior High 
School which opened for the first time in 1964 as an all- 
Negro school. The board is now beginning a 3y2 million 
dollar expansion, but its plans have not been finalized. This 
is a perfect opportunity for planning to promote either 
segregation or desegregation.

Actually, this issue is no different from that involved in 
drawing school zone lines on a racial basis, except that a 
segregated or desegregated result can even more effectively 
be achieved by the location of schools than it can by draw­
ing zone lines. Zones can readily be changed, but once 
schools are constructed they cannot be moved.



25

Since this school board has for years engaged in a series 
of sophisticated segregationist schemes, amply revealed 
in the record of the first appeal in this case, one would be 
exceedingly credulous to accept their unsupported asser­
tions that they have no plan to build schools so as to pro­
mote segregation. But their vague and general disclaimer 
of segregationist intentions is coupled in this case with the 
school board’s present practice of using gerrymandered 
school zone lines adopted only this year.

This is surely an appropriate matter for considera­
tion by the courts. The importance of such matters to 
school desegregation is demonstrated by the reference in 
Brown v. Board of Education, 349 U. S. 294, to “ problems 
arising from the physical condition of the school plant” (at 
300-301). The Fifth Circuit recently approved a District 
Court order, attacked by a school board, which required 
among other things that a desegregation plan must pro­
vide that construction programs not be designed to per­
petuate, maintain and support segregation. Board of Pub­
lic Instruction of Duval County v. Braxton, 326 F. 2d 616, 
620 (5th Cir. 1964). Cf. Vick v. County Board of Educa­
tion, 205 F. Supp. 436, 441 (W. D. Tenn. 1962) (financing 
and budgeting not to be based on race or color). Plaintiffs 
submit that such an order should appropriately go one 
step further and direct the school authorities to take all 
reasonable steps available to them in the preparation of 
their plans for locating new schools (consistent with the 
other demands of school planning, such as availability of 
funds, size of sites, etc.) to promote the desegregation of 
the system. This is the only manner in which the school 
board can undo some of the long term effects of the years 
of planning schools’ sizes and locations on a segregated 
basis.

The court might appropriately direct the school board 
to report to it the precise nature of its plans for new con­



26

struction as they are developed, presenting a statement of 
the probable effect of such construction on the desegrega­
tion process, as evidenced by such matters as the probable 
areas to be served by the schools. But, certainly, even a 
general admonition to the school board to perform its plan­
ning in light of the general principles indicated would be 
vastly preferable to the ruling of the court below indicat­
ing that this matter was not relevant to the litigation.

CONCLUSION

W herefore, f o r  all the fo re g o in g  reasons, appellants 
resp ectfu lly  subm it that the ju dgm en t below  should  be 
reversed .

Respectfully submitted,

J ack  G reenberg 
J ames M. N abrit , III 
D errick  A. B ell , J r .

10 Columbus Circle 
New York, New York 10019

Conrad 0 .  P earson 
M . H u gh  T hom pson  
W illiam  A. M arsh , Jr.

203% East Chapel Hill Street 
Durham, North Carolina

P . B . M cK issick
209% West Main Street 
Durham, North Carolina

J . H . W heeler
116 West Parrish Street 
Durham, North Carolina

Attorneys for Appellants



38