Motion for Leave to File Brief Amicus Curiae in Support of the Petition for a Writ of Certiorari to the US Court of Appeals for the Fourth Circuit

     [||024bddc9-cde2-47d4-a9b4-c022859dd5e9||] IN THE 

Supreme Court of the United States 
OCTOBER TERM, 1969 

No. 1713 

JAMES E. SWANN, ET AL., Petitioners, 

V. 

CHARLOTTE-MECKLENBURG BOARD OF 

EDUCATION, ET AL., Respondents. 

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE IN 

SUPPORT OF THE PETITION FOR A WRIT OF CERTIORARI 

TO THE UNITED STATES COURT OF APPEALS FOR THE 

FOURTH CIRCUIT AND BRIEF AMICUS CURIAE FOR THE 

NATIONAL EDUCATION ASSOCIATION 

STEPHEN J. POLLAK 

RICHARD M. SHARP 

734 Fifteenth Street, N.W. 

Of Counsel: Washington, D.C. 20005 

SHEA & GARDNER DAVID RUBIN 

734 Fifteenth Street, N.W. 1201 Sixteenth Street, N.W. 
Washington, D.C. 20005 Washington, D.C. 20036 

Attorneys for Amicus Curiae 

National Education Association 

  

    a ial i a 
Washington, D. C. - THIEL PRESS - 202 - 393-0625  



  

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(i) 

TABLE OF CONTENTS 

INTEREST OF THE NATIONAL EDUCATION ASSOCIATION. 5 

STATEMENT... cins torah ovis sia A cimebirieh ooh iiineons dinth™s. wi 6 

1. Description of the Charlotte-Mecklenburg School 

SYSION oii si tivinins sone sisi si sisi Ries EE 

2. History'of Desegregation ih... ih. Jl Jase 

3. The Desegregation Plan Ordered by the District Court 

on February 53,1970 : ... . v0. ol osm onli 8 

4, The Decision of the Comrt of Appeals *............. 11 

REASONS FOR GRANTING THE WRIT .........::.0 00, 13 

1. Introduction . . ciiwivs Fas oo hE. nies ek abl writes 13 

2. The Duty to Disestablish Racially Identifiable Schools ... 14 

3. The Irrelevance of Monetgry LOSES ovo bvivnts vin 15 

4. The Reasonableness of the District Court’s Plan for 

Desegregation of the Elementary Schools ........... 20 

CONCLUSION. iia vivian sronr i apmatitos, Le ia dy 5S 21 

CITATIONS 

CASES: 

Alexander v. Holmes County Board of Education, 396 U.S. 19 

(1969) .......... 0 95%bid. 8.2L) 05 L. shiver 14,17,19,21 

Brewer v. School Board of City of Norfolk, 397 F.2d 37 

(1968) ......c0.. 0 00d .0h duels Bidadh S350 Bitiii 15 

Brown v. Board of Education, 347 U.S. 483 (1954) ......... 5.21 

Brown v. Board of Education, 349 U.S. 294 (1955). ........ 20 

Carrington v. Rash, 380 US. 89 (1968) i. vn ov ine on S30 19 

Cato v. Parham, 302 F. Supp. 129 (D. Ark. 1969) ......... 15 

Cella v. United States, 308 F.2d 183 (7th Cir. 1933) ....... 18 

Dowell v. School Board of Oklahoma City, 244 F. Supp. 971 

(W.D. Okla. 1965), aff'd, 375 F.2d 158 (10th Cir. 1967), 

cert. denied, 3870.8. 931 (1967) 2.) ii iv ig ov. 15  



  

  

  

(ii) 

Green v. County School Board of New Kent County, 391 

US 43001003) 5 5 sit te siants sion 2 15.77,12,19.20 
Griffin v. County School Board, 377 U.S. 218 (1964) ....... 18 

Harman v. Forssenius, 380 U.S. 528 (1965) “0. Loi i. L. 19 

Henry v. Clarksdale Municipal Separate School District, 409 

F.2d 682 (5th Cir. 1969), cert. denied, 396 U.S. 940 

(196)... i, ion rene se 15 

Kemp v. Beasley, No. 19072, p. 14 (Slip. Op.) (8th Cir. March 

VL 1070) . ves onl sarees arin sree 15, 16,21 

Keyes v. School District No. 1, Denver, 303 F. Supp. 279 

(D. Colo. 1969), stay pending appeal granted, F.2d 

____ (10th Cir. No. 432-69, Aug. 27, 1969), stay vacated, 

  

396 US. 12151969)... .. ..... ... .. 0c... 13,21 

Louisiana v. United States, 380 US. 145(1968) ........... 20 

Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938) ..... 19 

Monroe v. Board of Commissioners of the City of Jackson, 

391 US. 450(1968)  ... ... . iii is sniadoudin 7.19 

Ohio Bell Telephone Company v. Commissioner, 301 U.S. 292 

C1937) i.e Lia es ee ee 18 

Ovama v. California, 332 US. 633(1948) ............... 19 

Raney v. Board of Education, 391 US. 433 (1968) ......... 7 

Russell-Newman Manufacturing Company v. National Labor 

Relations Board, 370 F.2d 980 (5th Cir. 1967) ......... 18 

Schlesinger v. Wisconsin, 270 U.S. 230(1926). . ........... 13 

Spangler and United States v. Pasadena City Bd. of Ed., No. 

63-1433:R (CD. Calif March 12,1970)... .. ......... 15,21 

Sweatt v. Painter, 33918. 629(1950) ................. 19 

United States v. Baldwin County, No. 28880 (5th Cir. March 

94970) ieee ee ie sass es 15 

United States v. Greenwood Municipal Separate School 

District, 406 F.2d 1086 (Sth Cit. 1969)... ... . os se cuss es 15 

United States v. Jefferson County Board of Education, 

372 P24 836 (5th Cir. 1966) '.......:.... vcore bssns 16 

United States v. Montgomery County Board of Education, 

305 US. 225CI069) ... sean 15 

   



(iii) 

United States v. School District No. 151, Cook County, 286 

F. Supp. 785 (N.D. Ill. 1968), aff'd 404 F.2d 1125 (7th 

Cir. 1968) CECE er ral er MR SURE TA I i a 15, 16, 21 

Valley v. Rapides Parish School Board, No. 29237 (5th Cir. 

March 6, 1970) ....c; is vivnisosnms sn sirt sts rnsms as 15 

MISCELLANEOUS: 

U.S. Commission on Civil Rights, Racial Isolation in the 

Public Schools 106,204 (1967)... .......0 072 #u0, 20 

 



IN THE 

Supreme Court of the United States 
OCTOBER TERM, 1969 

No. 1713 

JAMES E. SWANN, ET AL., Petitioners, 

V. 

CHARLOTTE-MECKLENBURG BOARD OF 

EDUCATION, ET AL., Respondents. 

MOTION OF THE NATIONAL EDUCATION ASSOCIATION 

FOR LEAVE TO FILE BRIEF AMICUS CURIAE IN SUPPORT 

OF THE PETITION FOR A WRIT OF CERTIORARI TO THE 

UNITED STATES COURT OF APPEALS FOR THE FOURTH 
CIRCUIT 

The National Education Association hereby moves, 

pursuant to Rule 42 of the Rules of the Supreme Court, 

for leave to file the attached brief amicus curiae in support 

of the petition for writ of certiorari filed June 18, 1970, in 

behalf of James E. Swann, et al., in the above-entitled cause. 

Consent to the filing of the brief has been sought from the 

petitioners and from the Charlotte-Mecklenburg Board of 

Education and members thereof, respondents. Petitioners 

have consented.! No response has been received to date to 

the requests made of the Charlotte-Mecklenburg Board of 

Education and the members of the Board. 

The written consent of the petitioners has been filed with the 
Clerk.  



  

2 

The National Education Association (hereinafter NEA) is 

an independent, voluntary organization of educators open 

to all professional teachers, supervisors and administrators. 

It presently has over one million regular members, and is 

the largest professional organization in the world. NEA was 

first organized in 1857 and was chartered by a special act 

of Congress in 1906. Its statutory purpose 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 Re- 

presentative Assembly, a body composed of approximately 

7,000 delegates representing affiliated local and state educa- 

tion associations. 

NEA has conducted detailed studies of the educational 

implications of the maintenance of dual school systems 

based upon race. It has long been committed to the princi- 

ple that racial segregation in education adversely affects the 

quality of the education received by both black and white 

students. Reflecting this position, the Representative Assem- 

bly at the June 1969 Convention adopted a formal continu- 

ing resolution providing, in part (NEA Handbook 1969-70, 

p. 66): 

The Association endorses the decision of the U.S. 

Supreme Court in Brown v. Board of Education and 

urges compliance with subsequent federal laws and 

regulations in this area . . 

On March 20, 1970, the Executive Committee of the Asso- 

ciation adopted a more specific resolution on desegregation 

in the public schools and recommended it to the Board of 

Directors and the 1970 Representative Assembly: 

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. 

   



3 

The Association recognizes that acceptable dese- 
gregation 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 implement 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 segregated school systems is required by 

the Constitution. This case presents to the court important 

issues concerning the meaning of a school board’s responsi- 

bility to convert 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 

in this country, NEA can draw upon a breadth of experi- 

ence to inform the court as to the reasonableness of the 

requirements for desegregation framed by the district court’s 

order of February 5, 1970, when judged from the stand- 

point of educational considerations as well as the practices 

and expenditures of other school systems. Pursuant to 

leave granted by the court of appeals, NEA filed a brief 

amicus curiae in the proceedings below (see, e.g., Appendix 

to Petition for Certiorari, pp. 194a, 211a) and, upon invita- 

tion, presented oral argument.? 

Accordingly, the National Education Association respect- 

fully requests that this Court grant leave to file the attached 

>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); Carter v. West Feliciana Parish School Board, No. 29745 
(5th Cir. 1970); 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).  



  

4 

brief amicus curiae in support of the petition for a writ of 

certiorari to the Court of Appeals for the Fourth Circuit. 

Respectfully submitted, 

Stephen J. Pollak 

Richard M. Sharp 

734 Fifteenth Street, N.W. 

Washington, D.C. 20005 

Of Counsel: 

Shea & Gardner David Rubin 

734 Fifteenth Street, N.W. 1201 Sixteenth Street, N.W. 

Washington, D.C. 20005 Washington, D.C. 20036 

Attorneys for Amicus Curiae 

June 25, 1970 National Education Association 

   



IN THE 

Supreme Court of the United States 
OCTOBER TERM, 1969 

No. 1713 

JAMES E. SWANN, ET AL., Petitioners, 

V. 

CHARLOTTE-MECKLENBURG BOARD OF 

EDUCATION, ET AL., Respondents. 

BRIEF FOR THE NATIONAL EDUCATION ASSOCIATION 

AS AMICUS CURIAE IN SUPPORT OF THE PETITION FOR 

A WRIT OF CERTIORARI TO THE UNITED STATES COURT 

OF APPEALS FOR THE FOURTH CIRCUIT 

INTEREST OF THE NATIONAL 
EDUCATION ASSOCIATION 

The National Education Association (hereinafter NEA) is 

an independent, voluntary organization of professional edu- 

cators. It has over one million members, including teachers, 

supervisors, and administrators. As stated in the Association 

Charter, its purpose is “to elevate the character and advance 

the interests of the profession of teachers and to promote the 

cause of education in the United States.” Both the NEA 

and its members have a deep interest in the quality of edu- 

cation received by the children of all races. NEA endorses 

the decision of this Court in Brown v. Board of Education, 

347 U.S. 483 (1954), and considers it imperative that de- 

segregation of the nation’s schools be complete and effec- 

tive. In pursuit of these purposes NEA has recently 

conducted investigations of the problems of race and educa- 

tion in the school systems of Wilcox County, Alabama; 

5  



  

6 

Baltimore, Maryland; some 22 counties in Louisiana; Detroit, 

Michigan; some 30 counties in Mississippi; Hyde County, 

North Carolina; and the region of East Texas. NEA has al- 

so participated in several school desegregation cases, includ- 

ing the appeal proceedings before the Fourth Circuit in the 

instant case, and in numerous others has actively supported 

efforts to secure judicial relief. 

STATEMENT 

1. Description of the Charlotte-Mecklenburg School 
System. The Charlotte-Mecklenburg School System is the 
forty-third largest in the United States, educating more than 
84,500 pupils in 106 schools, including 76 elementary 
schools, 20 junior high schools, and 10 senior high schools. 
While the system covers the county’s 550 square miles, over 

50,000 of the students reside within the City of Charlotte. 
(Appendix to Petition for Certiorari, pp. 9a-10a, 18a, 85a- 
86a, 123a.)! The 1969-70 budget was $57,711,344, of 

which nearly $51,000,000 represented operational expenses 

(139a).2 

Of the 84,500 students, about 29 percent, or 24,714, are 

Negro, and about 71 percent, or 59,828, are white (10a, 

85a). Approximately 21,000 of the system’s 24,714 black 

students attend schools within the City of Charlotte (57a). 

The predominant percentage of the system’s black students 

live in a triangular area, four or five miles on a side, in the 

northwestern quadrant of the city. This area is almost ex- 

clusively Negro. (la, 12a, 14a, 142a-144a.) 

2. History of Desegregation. The Charlotte-Mecklenburg 
Board of Education has operated a dual system of schools 
based upon race (185a). A suit for desegregation was initi- 
ated in 1965 (1a), and the district court ordered into effect 

The Appendix will be cited hereinafter by page number only. 

2Expenditures for construction of school buildings are not included 
in these budget figures (139a). 

   



7 

a plan proposed by the School Board based upon geographic 

zoning with a free transfer provision which was approved by 

the court of appeals (185a). In September 1968, following 

the decisions of this Court in Green v. County School Board 

of New Kent County, 391 U.S. 430 (1968), Raney v. Board 

of Education, 391 U.S. 433 (1968), and Monroe v. Board 

of Commissioners of the City of Jackson, 391 U.S. 450 

(1968), the petitioners filed a motion for further relief 

which sought greater speed in desegregation and elimination 

of other racial inequities (1a). Following a hearing, the dis- 

trict court concluded that the “manner in which the Board 

has located schools and operated the pupil assignment system 

has continued and in some situations accentuated patterns 

of racial segregation in housing, school attendance, and 

community development’ (28a); that the Board has created 

or controlled school zones so as to promote segregation of 

black students (54a); and that the Board has an affirmative 

duty to promote faculty desegregation and desegregation of 

pupils, and to deal with the problem of the all-black schools 

(29a). The district court ordered the Board to submit by 

May 15, 1969, a plan for complete desegregation of teachers 

to be effective with the 1969-70 school year, and for desegre- 

gation of pupils to be predominantly effective in the fall of 

1969 and to be completed by the fall of 1970 (30a, 31a). 

Pursuant to this and subsequent orders of the district 
court, the Board submitted two plans, neither of which was 

considered adequate by the court (51a, 55a, 68a, 69a). On 

August 15, 1969, because of the shortness of time before 

the opening of school, the district court approved an 
interim plan for the 1969-70 school year and directed the 

Board to present, on November 17, 1969, a plan for com- 

plete faculty and student desegregation for 1970-71 (70a- 

71a). The 1969-70 plan proposed to close seven black 
inner-city schools and to transfer their 3,000 students to 

suburban schools, all but one of which were white (83a). 

It also proposed to transfer 1,245 black students from eight 
over-crowded black or predominantly black schools to 
white suburban schools (64a, 83a). The Board, however,  



  

8 

did not carry out the plan (83a). Only 1,315 of the pro- 

mised 4,245 black students were transferred to white 

schools (84a). 

The Board’s November 17, 1969 plan was disapproved 

by the district court which found that ‘it contains no 

promise nor likelihood of desegregating the schools” (93a). 

Among other provisions, the plan provided that no white 

students would be assigned to schools with less than 60 per- 

cent whites; and that where schools were to be desegrated, 

the ratio of black to white students would not exceed 60 

percent white—40 percent black (94a-95a). Seven all-black 

elementary schools were to remain that way (94a). 

The district court thereupon designated a consultant to 

prepare a desegregation plan in accordance with nineteen 

principles drawn from the decisions of this Court and the 

lower federal courts and set forth in the opinion and order 

(103a-108a). The court invited the Board to submit a fur- 

ther plan of its own (110a-111a). 

3. The Desegregation Plan Ordered by the District Court 
on February 5, 1970. Reviewing the results of almost four 

and one-half years of court-ordered desegregation, the dis- 

trict court found in November 1969 that the Charlotte- 

Mecklenburg schools “are still in major part segregated or 

‘dual’ rather than desegregated or ‘unitary’ > (86a). “Of 

24,714 Negro students, something above 8,500 are attending 

‘white’ schools or schools not readily identifiable by race”; 

13,945 were still in 90-100 percent black schools;® and 

9,216 of these were in 100 percent black schools. Of 59,828 
white students, over 45,000 were attending schools which 

were 86-100 percent white (85a-86a). Ninety-eight of the 

106 schools in the System continued to be “readily and 

obviously identifiable by the race of the heavy majority of 

their faculties” (84a). 

3The court found that more than 16,000 black students were 

attending schools which were between 56 percent and 100 percent 
black (85a). 

   



9 

The district court found that these student assignment 

patterns reflected the segregation of Mecklenburg County’s 

residential areas (86a). This segregation, it said, “is the re- 

sult of a varied group of elements of public and private ac- 

tion, all deriving their basic strength originally from the 

public law or state or local governmental action. These ele- 

ments include among others the legal separation of the races 

in schools, school buses, public accommodations and 

housing; racial restrictions in deeds to land; zoning ordi- 

nances; city planning; urban renewal; 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 that there would 

usually be black schools handy to black neighborhoods and 

white schools for white neighborhoods” (86a-87a; see also 

12a-14a). Based upon these findings, the district court ruled, 

“[t]here is so much state action embedded in and shaping 

these events that the resulting segregation is not innocent or 

‘de facto,” and the resulting schools are not ‘unitary’ or de- 

segregated” (87a). 

Faced with these conditions, the district court, on Febru- 

ary 5, 1970, framed a desegregation plan using, where it 

could, portions of the plan submitted by the School Board 

(see 119a-121a). The court held that an acceptable plan 

would have to be consistent with sixteen requirements set 

forth in the order (117a). Some of the requirements were 

expressed in mandatory terms, such as number five “‘[t]hat 

no black school be operated with an all-black or predomi- 

nantly black student body.” Others, although framed as 

requirements, were drawn to allow leeway for practical con- 

siderations incident to the operation of the school system. 

These included number six calling for the assignment of 

pupils so that “‘as nearly as practicable the various schools 

at various grade levels have about the same proportion of 

black and white students,” and number seven providing that 

transportation be offered on a uniform non-racial basis to 

children who live farther from the school to which they are 

assigned “than the Board determines to be walking distance.”  



  

10 

The district court then 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 34 elementary schools 
which were paired and assigned noncontiguous zones. For 
the senior high schools, the court approved a zoning plan 
submitted by the Board which integrated nine of the sys- 
tem’s ten schools with percentages of black students rang- 
ing from 17 percent to 36 percent. The court ordered one 
modification: it required that 300 pupils be transported 
from the black residential area of the city to the Independ- 
ence School which would have been 2 percent black and 

under-capacity under the Board’s plan (190a, 123a). 

The court disapproved the Board’s rezoning plan for the 

junior high schools because it left the Piedmont School 90 

percent black, and offered the Board various alternatives 
which would desegregate all the junior high schools. The 

Board chose to adopt the plan proposed by the court’s con- 

sultant which combined zoning and satellite districts and 
which left the junior high schools from 9 percent to 33 per- 
cent black (125a, 190a-191a). 

The Board’s plan for the elementary schools was based 
entirely upon zoning. It would have left more than half 
the black elementary pupils in nine schools 86 to 100 per- 
cent black and would have assigned about one-half the white 
elementary pupils to schools 86 to 100 percent white (191a). 
Rejecting that proposal, the court adopted a plan offered 

by its consultant which drew new zones for 27 schools and 

paired 34 others, each of which was assigned noncontiguous 

zones. Approximately 22,400 of the 44,000 elementary 

pupils would attend the paired schools, 10 of which are in 
the city and 24 of which are outlying suburban white 
schools. Children in grades 1-4 from the zones surrounding 

all 34 schools would attend the 24 suburban schools, while 

those in grades 5-6 would attend the 10 city schools (133a). 
- The racial make-up of the elementary schools would vary 
from 3 percent to 41 percent black (129a-131a). 

   



11 

Under the court-approved plan, no schools would remain 

all-black or predominantly black. The pairing and grouping 

of schools, as well as rezoning provided for in the plan, 
would, the court found, add a maximum of 13,300 children 
who “may conceivably require transportation’ to the 
23,600 pupils transported daily on school buses and the 
5,000 whose fares on public coach lines are paid by the 
Board (138a, 155a). Of these 13,300 children, 1,500 would 
be at senior high level, 2,500 at junior high, and 9,300 at 
elementary school level (155a). One hundred thirty-eight 
additional buses would be required, 90 for the elementary 
students (155a). The cost of implementing the plan would 
be $266,000 for bus operations ($186,000 of this for the 
elementary school phase) and a one-time expenditure of 
$745,200 for additional buses ($486,000 for the elemen- 
tary phase) (156a-157a, 182a, 191a).? 

4. The Decision of the Court of Appeals. The court of 
appeals, by a vote of four to two, vacated the district court’s 
judgment.® The court carefully analyzed and specifically 
accepted the district court’s finding ‘that residential 

The district court did not consider the plan immutable. It stated 
that “the duty imposed by the law and by this order is the desegre- 
gation 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 end by any means 
at their disposal. The test is not the method or the plan, but the 
results.” The court stated its intention “to leave maximum dis- 
cretion in the Board to choose methods that will accomplish the 
required result.” (118a-119a, 121a.) 

5 Chief Judge Haynsworth and Judge Boreman concurred in an 
opinion of Judge Butzner. Judge Bryan wrote a separate opinion 
dissenting in part but joined in voting to vacate the judgment 
of the district court in accordance with the opinion of Judge Butzner 
“for the sake of creating a clear majority for the decision to remand” 
(226a). Judges Sobeloff and Winter concurred in part and dissented 
in part (201a). Judge Craven disqualified himself (184a).  



  

12 

patterns leading to segregation in the schools resulted in part 

from federal, state, and local governmental action’ (186a). 

It concluded that *[p]redominantly black schools were the 

inevitable result’ of the School Board’s policy of locating 

schools and fixing their size to fit these segregated residen- 

tial patterns (186a). The court of appeals recognized that 

this condition was not unique to Charlotte; that “[s]imilar 

segregation occurs in many other cities throughout the 

nation, and constitutional principles dealing with it should 

be applied nationally” (188a). 

The court of appeals then declared three general princi- 

ples which it would apply to resolve the issues in the case: 

“first, not every school in a unitary school system need be 

integrated; second, nevertheless, school boards must use all 

reasonable means to integrate the schools in their jurisdic- 

tion; and third, if black residential areas are so large that 

not all schools can be integrated by using reasonable means, 

school boards must take further steps to assure that pupils 

are not excluded from integrated schools on the basis of 

race” (189a).6 It held bussing to be “a permissible tool 

for achieving integration,” but declared that ““[i]n determin- 

ing who should be bussed and where they should be bussed, 

a school board should take into consideration the age of 

the pupils, the distance and time required for transportation, 

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

resources’ (194a). : 

Applying these principles, the court of appeals approved 

the desegregation plan for junior and senior high schools, 

holding that ‘it provides a reasonable way of eliminating 

all segregation in these schools” (195a). The appellate court 

also affirmed the district court’s disapproval of the School 

Board’s elementary plan because it left about one-half of 

6The court identified such “further steps” to include special classes, 

functions and programs on an integrated basis to be made available to 

pupils in the black schools, majority to minority transfers with trans- 

portation provided, and assignment to an integrated school for a later 

portion of a black student’s career (189a). 

   



13 

both black and white pupils in schools that were nearly 

completely segregated (197a).” However, the court of ap- 

peals found the elementary plan approved by the district 

court unacceptable, holding that “[t]he board . . . should 

not be required to undertake such extensive additional bus- 

sing to discharge its obligation to create a unitary school 

system” (198a).8 

REASONS FOR GRANTING THE WRIT 

1. Introduction. The decision of the Court of Appeals 

for the Fourth Circuit presents two issues of fundamental 

importance to the future course of school desegregation. 

The first issue is whether a school board, in fulfilling its 

obligations to establish a unitary system, must disestablish 

the identity of all “black” and ‘“‘white” schools by reassign- 

ing students, and providing transportation where necessary, 

even though this will require the board to bear financial and 

other burdens.’ The second issue, which arises only if this 

"The court of appeals also approved the provisions of the district 
court’s order dealing with faculties (185a). 

8The court’s use of the phrase “such extensive additional bussing” 
followed a recitation of the following facts: the plan would require 
transporting 9,300 pupils in 90 additional buses; the greatest portion 

would involve cross-bussing; the average daily round trip would 
approximate 15 miles through central city and suburban traffic; the 
additional elementary pupils would represent an increase of 39 per- 
cent over all pupils presently being bussed and would require an in- 
crease of about 30 percent in the present fleet of buses; and, when 
added to the additional bussing required under the junior and senior 
high plans, the total percentage increases would be: pupils, 56 per- 
cent; and buses, 49 percent (198a). 

% As we show infra, pp. 16-17, the true basis of the conclusion of 

the court of appeals that the elementary school plan was unreason- 
able had to be the financial cost entailed in purchasing and operating 
the 90 additional buses required to transport the 9,300 additional 
children required to be bussed. The reasonableness of the plan judged 
upon the basis of the other measures referred to by the court of ap- 
peals—age of pupils, time and distance required for transportation and 
effect on traffic—appears clear on this record.  



  

14 

Court should conclude that the constitutional obligation to 

establish a unitary system may be circumscribed by the costs 

and other burdens its fulfillment would require a school 

board to assume, is what standards school boards and 

district courts should apply in framing acceptable desegre- 

gration plans. 

As the court itself recognized (186a-187a), the duty of 

virtually every school board with responsibility for an 

urbanized area of any size will hinge upon the resolution of 

these issues. Undoubtedly too, the principle announced by 

the Fourth Circuit, if allowed to stand, would significantly 

influence the future course of desegregation of rural systems 

as well.1® Thus, the case is truly one of national significance. 

2. The Duty to Disestablish Racially Identifiable Schools. 

The court of appeals quite properly affirmed the district 

court’s conclusion that the predominantly black schools in 

the Charlotte-Mecklenburg system are the “inevitable result” 

of state action (186a).!'! Having so ruled, the primary ques- 

tion, then, was whether, under the Equal Protection Clause 

of the Fourteenth Amendment, the School Board was re- 

quired to reassign students so as to disestablish the racial 

identity of these schools. 

Until this case, it was recognized that the constitutional 

duty of a school board under such circumstances was to 

terminate all vestiges of its dual system ‘at once and to 

operate now and hereafter only unitary schools.” Alexander 

y. Holmes County Board of Education, 396 U.S. 19, 20 

10The considerations on which the duty to disestablish the racial 
identity of predominantly black schools would depend—cost, for ex- 
ample—(see discussion, infra, pp. 16-17) are not unique to urban sys- 
tems. History teaches that rural systems would urge them as grounds 

for relief from the constitutional mandate to operate unitary schools. 
Indeed, the court of appeals suggested that the constitutional princi- 
ples “should be applied nationally” wherever segregation exists because 
government policies fostered segregated neighborhood schools (188a). 

UThe findings of the district court and their affirmance by the 
court of appeals are set forth in the Statement, supra, pp. 9, 11-12. 

   



15 

(1969). And a unitary school system had been under- 

stood to be one without schools which are racially identi- 

fiable by reason of their student bodies, Green v. County 

School Board of New Kent County, 391 U.S. 430 (1968), 

or their faculties, United States v. Montgomery County 

Board of Education, 395 U.S. 225 (1969). A number of 

other lower courts, including the Fourth Circuit itself, have 

interpreted these rulings to bar neighborhood student assign- 

ment plans which freeze in the effects of residential segrega- 

tion resulting from state action.!? This was the conclusion 
of the district court which held that an acceptable desegre- 

gation plan must provide ”’[t]hat no school be operated 
with an all-black or predominantly black student body” 
(Order of February 5, 1970; 1162). 

3. The Irrelevance of Monetary Costs. Like the district 

court, the court of appeals recognized the obligation of the 

School Board to reassign students to disestablish the racial 
identity of the schools (189a). However, it held that where 
“black residential areas are so large that not all the schools 

2 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); Valley 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, 798 
(N.D. Ill. 1968), aff'd, 404 F.2d 1125 (7th Cir. 1968); Dowell v. 
School Board of Oklahoma 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, 303 F. Supp. 279, 289 (D. Colo. 1969), stay pending ap- 
peal granted, F.2d _ (10th Cir. No. 432.69, Aug. 27, 1969), 
stay vacated, 396 U.S. 1215; see Cato v. Parham, 302 F. Supp. 129 
(D. Ark. 1969). In Brewer v. School Board of City of Norfolk, 397 
F.2d 37, 41-42 (4th Cir. 1968), the court of appeals went further, 
saying that it is immaterial that the residential patterns are the result 
of private discrimination: “The school board cannot build its exclu- 
sionary attendance areas upon private racial discrimination.” 

bl] 

   



    
16 

can be integrated by using reasonable means,” the school 

board may leave those schools black.!®* The court, we be- 
lieve, correctly recognized that ““bussing is a permissible tool 

for achieving integration” (194a). Kemp v. Beasley, No. 

19782, p. 14 (Slip Op.) (8th Cir. March 17, 1970); United 

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

836, 898 (5th Cir. 1966); United States v. School District 

No. 151, Cook County, 286 F. Supp. 786, 799 (N.D. Ill. 

1968), aff'd, 404 F.2d 1125 (7th Cir. 1968). It said, how- 
ever, that in determining the part bussing may reasonably 

play in a unitary school system “a school board should take 
into consideration the age of the pupils, the distance and 

time required for transportation, the effect on traffic, and . 

the cost in relation to the board’s resources” (194a). 

Viewing the plan for junior and senior high schools 

against these principles and the background of national, 

state and local transportation policies, the court found “it 

provides a reasonable way of eliminating all segregation in 

these schools” (195a). The court, however, reached the 

opposite conclusion with respect to the elementary plan. 

As we now show, a review of the plan against the five mea- 

sures the court said should be taken into consideration 

compels the conclusion that the plan was rejected because 
the court of appeals found the financial cost of the bussing 

“unreasonable.” 1 

Thus, with respect to the measures of time, distance, and 

traffic, the district court found that the children required 

to be bussed by its order “will not as a group travel as far, 

13The steps the court indicated the Board might take to satisfy 
its constitutional duty are set forth, supra, p. 12, n. 6. 

14 At the most, the elementary school plan would have entailed 
an annual expenditure of $186,000 to operate the buses plus a one- 
time investment of $486,000 for the 90 additional buses (191a). In 
aggregate, the first-year expense would be just slightly above one per- 
cent of the system’s annual budget (139a). From this there should 
be subtracted the value of the improvement in the education available 
to black children which is significant, although not easily quantifiable 
in dollars. 

 



17 

nor will they experience more inconvenience than the more 

than 28,000 children who are already being transported . . .” 

(143a), and this finding was not disturbed by the court of 

appeals. The average one-way bus trip per elementary pupil 

would be seven miles (153a), compared to an average of 

between 15 and 17 miles per child in the system today 

(153a, 195a) and 12 to 13 miles under the plan for senior 
high pupils (195a). The average time would be 35 minutes 

as against nearly an hour and a quarter today per child in 

the system (153a). 

Insofar as the age of the pupils to be bussed is concerned, 

the district court found that the plan would require bussing 

of an additional 9,300 elementary students. This figure is 

just under 70 percent of the 13,300 additional students of 

all ages required to be bussed by the plan. Statewide in 
North Carolina 70.9 percent of all pupils bussed are elemen- 

tary students (137a). 

Thus, the reasonable inference is that cost alone was the 
basis for the conclusion of the court of appeals that the 
elementary plan was unreasonable. That this was the sole 
basis for rejection of the plan is confirmed by the court’s 
statement that “[t]he board . . . should not be required to 
undertake such extensive additional bussing . . .”” (198a). 

The court of appeals has thus announced a new consti- 
tutional principle governing school desegregation: that the 
duty to disestablish all racially identifiable schools is a 
conditional one depending upon the financial costs involved. 

This principle conflicts with the well considered holdings of 

this Court which establish that “[t]he obligation of every 

school district is to terminate dual school systems at once 

and to operate now and hereafter only unitary schools.” 
Alexander v. Holmes County Board of Education, 396 U.S. 
19, 20 (1969). In Green v. County School Board, 391 U.S. 
430, 442 (1968), the Court, adopting the language of the 
Court of Appeals for the Fifth Circuit, defined a unitary 
system as “‘a system without a ‘white’ school and a ‘Negro’ 
school, but just schools.”  



  

18 

To date, this Court has never held, or even suggested, that 

this constitutional mandate may be avoided by showing that 

performance would entail monetary costs. In Green, this 

Court held that the school board was under an “‘affirmative 

duty to take whatever steps might be necessary to convert 

to a unitary system,” 391 U.S. at 437-38 (emphasis added).'? 

There was no suggestion that a “unitary system’ was not a 

fixed goal established by the Constitution. Indeed, the 

words chosen by the Court indicated that a unitary system 

is one ‘in which racial discrimination would be eliminated 

root and branch.” [d., at 437-38. Under the decision of the 

court of appeals, the constitutional objective, the unitary 

system, would vary according to the cost of the steps avail- 

able to the school board. 

The interpretation given the Constitution by the court of 

appeals cannot withstand analysis: Thus, no State could be 

heard to justify a denial of a jury trial or due process of law 

on the grounds that fulfillment of these rights costs too 

much. The right to equal protection of the laws stands 

on the same footing. Thus, “[t]he State is forbidden to 

deny due process of law or the equal protection of the laws 

for any purpose whatsoever.” Schlesinger v. Wisconsin, 270 

U.S. 230, 240, (1926). Certainly factors such as “‘conven- 

ience and expediency’ do not exempt the state or other 

governmental agencies from the requirements of the Four- 

teenth Amendment. Ohio Bell Telephone Company v. 
Commissioner, 301 U.S. 292, 305 (1937); Russell-Newman 

Manufacturing Company v. National Labor Relations Board, 

370 F.2d 980, 984, (5th Cir. 1967); Cella v. United States, 

208 F.2d 183, 789 (7th Cir. 1953).1® The right to equal 

158ee Griffin v. County School Board, 377 U.S. 218 (1964), where 
this Court held that a school board may be ordered to spend whatever 
is necessary to afford the pupils in its jurisdiction desegregated educa- 
tion equal to that being afforded pupils inn other systems throughout 
the State. 

16 The ruling of the court of appeals also seems inconsistent with 
the well recognized rule that states may not casually deprive a class 
of individuals of a constitutional right because of some remote admin- 

[continued] 

   



19 

protection, moreover, is a right personal to each individual. 
Sweatt v. Painter, 339 U.S. 629, 635 (1950); Missouri ex 
rel. Gaines y. Canada, 305 1.8. 337, 351 (1958). A black 
child assigned to a black school such as Double Oaks or 
Lincoln Heights (126a, 127a) is afforded little consolation— 
and no vindication of his “personal and present” !7 consti- 
tutional right—by the fact that the Board is affording other 
students an integrated education. 

The court below suggested that where costs of bussing 
warrant, certain “other steps”—the offering of special inte- 
grated classes, freedom of transfer with transportation, and 
an integrated school assignment later on—may be substituted 
for the elimination of predominantly black schools. The 
decisions of this Court in Green v. County School Board, 
supra, and Monroe v. Board of Commissioners of the City 
of Jackson, 391 U.S. 450 (1968), demonstrate the consti- 
tutional inadequacy of these alternatives. In those cases 
this Court disapproved freedom of choice and freedom of 
transfer plans because they left Negro students in all-black 
schools and placed upon them the burden of choosing a 
desegregated experience. 

To postpone assignment of black students to a desegre- 
gated school until a later “portion of their school careers” 
is merely to hold out the hope of a morsel of desegrega- 
tion and to ignore the rule that token desegregation fails 
to comply with the constitutional requirement. During 
their elementary school years these black students would 
be “effectively excluded” from desegregated schools be- 
cause of their race. Alexander v. Holmes County Board 
of Education, 396 U.S. 19, 20 (1969). Beyond these 

istrative benefit to the state. Harman v. Forssenius, 380 U.S. 528, 
542-44 (1965) (requirement of a certificate of residence as a precon- 
dition to voting); Carrington v. Rash, 380 U.S. 89, 96 (1965) (serv- 
icemen permitted to vote only in the county of residence at the 
time of entry into service); Oyama v. California, 332 U.S. 633, 646- 
47 (1948). 

Sweatt v. Painter, supra, 339 U.S. at 635.  



  

20 

constitutional considerations, the unreasonableness of such 

an alternative is shown by the fact that maximum benefits 

from desegregated education come only if pupils are assigned 

to integrated schools at an early age. U.S. Commission on 

Civil Rights, Racial Isolation in the Public Schools 106 204 

(1967). 

4. The Reasonableness of the District Court’s Plan for 

Desegregation of the Elementary Schools. NEA believes 

that the Court should reaffirm its ruling in Green that the 

school board is under an “affirmative duty to take whatever A 

steps are necessary to convert to a unitary system,” 391 U. 

S. at 437-438; and that it should reject the suggestion that 

the duty to disestablish separate schools based upon race 

may be avoided because its fulfillment will cost money. 

Such a ruling would dispose of this case. 

However, if the court should accept the rule framed by 

the court of appeals, a significant issue would still remain: 

the court of appeals purported to apply a “rule of reason,” 

but it did not indicate the standards it applied in reaching 

the judgment that the “undertakings” incident to the plans 

for desegregation of the senior and junior high schools were 

reasonable but those required for the elementary schools 

were not. In essence, that court struck down the elemen- 

tary school plan because of the “extensive additional bus- 

sing” (198a) it would require, but failed to indicate the 

criteria it applied in determining how much bussing was 

too much—and why. !® 

18Gince Brown v. Board of Education, 349 U.S. 294 (1955), it has 

been recognized that the district courts are invested with broad 
powers to frame relief from racial discrimination in the public schools. 
Indeed, 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, at 438 n.4. In 

our view, the district court properly fulfilled this duty and did not 

abuse its discretion in framing the elementary school plan. 

   



21 

School boards and lower federal courts are left at large 

by the appellate court’s ruling. The vast discretion inherent 

in the rule is an open invitation to circumvent the constitu- 

tional right of black children to equal educational opportu- 

nity—an invitation which the 16-year history since Brown 

demonstrates is all too likely to receive wide acceptance. '® 

CONCLUSION 

From Brown to Alexander, the question was one of “all 

deliberate speed” —the timing of transition from separate to 

equal schools. This case presents the question whether, now 

that the Court has declared the transition period closed, the 

constitutional objective itself is to be realized. If the deci- 

sion below is allowed to stand, it forecasts a host of separate 

black schools in every urban community which, for the for- 

seeable future, will be impregnable to constitutional attack. 

NEA urges the Court to grant the petition for a writ of 

certiorari filed in behalf of James E. Swann, et al., and to 

The decisions In Kemp v. Beasley, No. 19072 (8th Cir. March 
17, 1970); United States v. School District No. 151 of Cook County, 

286 F. Supp. 786 (N.D. IlL.), aff'd, 404 F.2d 1125 (7th Cir. 1968); 
Spangler and United States v. Pasadena City Board of Education, Civ. 

No. 68-1438 (M.D. Calif. March 12, 1970); and Keyes v. School Dis- 
trict No. 1, Denver, 303 F. Supp. 279 (D. Colo. 1969), Fad. 
(10th Cir. No. 432-69, August 27, 1969), 396 U.S. 1215 (1969), in- 
dicate that, with the increasing focus on integration of urban schools, 

the need to make bussing a part of such plans wiil be increasingly at 

issue. Paradoxically, while the appellate court’s decision creates a 
wide ambit for the exercise of discretion to limit desegregation, it 
severely, and NEA believes unwarrantedly, restricts the traditional 
discretion of the district court to frame a plan which will secure the 
constitutional objective. Review now by this Court will insure that 
no such unwarranted restriction survives. 

  

 



  

22 

establish an expedited schedule for briefs and argument 

which will permit a decision at the earliest practicable time. 

Respectfully submitted, 

Stephen J. Pollak 
Richard M. Sharp 

734 Fifteenth Street, N.W. 

Washington, D. C. 20005 

Of Counsel: 

Shea & Gardner David Rubin 
734 Fifteenth Street, N.W. 1201 Sixteenth Street, N.W. 

Washington, D. C. 20005 Washington, D. C. 20036 

Attorneys for Amicus Curiae 

June 25, 1970 National Education Association [||024bddc9-cde2-47d4-a9b4-c022859dd5e9||]