Pasadena City Board of Education v. Spangler Brief Amicus Curiae

    Supreme (Emtrt cf tl  ̂ luifrii
O ctober T erm , 1975 

No. 75-164

I n  th e

P asadena City B oard of E ducation, et al.,

v.
Petitioners,

Nancy A nne Spangler, et al.,

and

U nited States oe A merica,

Respondents,

Respondent.

on petition for writ of certiorari to the 
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF AMICUS CURIAE OF THE 
N.A.A.C.P. LEGAL DEFENSE AND 

EDUCATIONAL FUND, INC.

J ack Greenberg 
J ames M. Nabrit, III 
Charles Stephen R alston 
D rew S. D ays, III 
Melvyn L eyenthal

10 Columbus Circle 
New York, New York 10019 

Attorneys for the N.A.A.C.P. 
Legal Defense and Educational 
Fund, Inc.



TABLE OF CONTENTS

Interest of Amicus

Argument ....... ......

C onclusion .............

A ppendix A  ..........

A ppendix B ....... .

PAGE

1

4

17

la

5a

T able op A uthorities

Cases

Alexander v. Holmes County Board of Education, 396 
TT.S. 19 (1969) ............. ...... ........... ..................................  2

Brown v. Board of Education, 349 TT.S. 294 (1955) .......  2
Brown v. Board of Education, 347 TT.S. 483 (1954) 2, 4, 5,15

Cooper y. Aaron, 358 U.S. 1 (1958) ................................... 2

Green v. County School Board of New Kent County,
391 U.S. 430 (1968) ..... ........................... ................... .....  2

Griffin v. County School Board of Prince Edward 
County, 377 U.S. 218 (1964) ..........................................  2

Lemon v. Bossier Parish School Board, 444 F.2d 1400 
(5th Cir. 1971) ....... ...........................................................  5

Swann v. Charlotte-MecJdenburg Board of Education,
402 U.S. 1 (1971) ............................ ..... 2,3,5,6,14,15,17

Swann v. Charlotte-MecJdenburg Bd. of Ed. No. 1974 
(W.D.N.C. July 11, 1975) .......................................... 14,16



11

PAGE

Swann v. Charlotte-Mecklenburg Bd. of Ed., 501 F.2d
383 ( lth. Cir. 1974) .......... - ................ .................... ........  13

Swann v. Charlott e-Mecklenburg Bd. of Ed., 379 F.
Supp. 1102 (W.D.N.C. 1974) ...... ........................13,14,16

Swann v. Charlott e-Mecklenburg Bd. of Ed., 362 F. 
Supp. 1223, appeal dismissed, 489 F.2d 966 (4th Cir.
1974) ........................ .......................................-.11,12,13,15

Sivann v. Charlotte-Mecklenburg Bd. of Ed., 334 F.
Supp. 623 (W.D.N.C. 1971) ......... ................. ............. ..9,10

Swann v. Charlotte-Mecklenburg Bd. of Ed., 328 F.
Supp. 1346, Aff'cl 453 F.2d 1377 (4th Cir. 1972) .......  7, 8

Swann v. Charlotte-Mecklenburg Bd. of Ed., 311 F. 
Supp. 265 (W.D.N.C. 1970) ..........................................  8

Youngblood v. Board of Public Instruction, 448 F,2d 
770 (5th Cir. 1971) 5



In th e

i>uprmp (Eoart of tlj? iUttfpii
October T erm , 1975 

No. 75-164

P asadena City B oard oe E ducation, et al.,

Petitioners,
v.

Nancy A nne Spangler, et al.,

and
Respondents,

U nited States oe A merica,
Respondent.

ON PETITION FOR WRIT OE CERTIORARI TO THE 
UNITED STATES COURT OE APPEAJLS FOR THE NINTH CIRCUIT

BRIEF AMICUS CURIAE OF THE 
N.A.A.C.P. LEGAL DEFENSE AND 

EDUCATIONAL FUND, INC.

Interest of Amicus*

The N.A.A.C.P. Legal Defense and Educational Fund, 
Inc., is a non-profit corporation, incorporated under the 
laws of the State of New York to assist blacks to secure 
their constitutional rights through the courts. Its charter 
declares that its purposes include rendering legal aid

* Letters of Consent from counsel for the petitioners and respon­
dents in this case have been filed with the clerk of the Court.



2

gratuitously to blacks suffering injustice by reason of race 
who are unable, on account of poverty, to employ legal 
counsel on their own behalf. The charter was approved 
by a New York court, authorizing the organization to serve 
as a legal aid society. The N.A.A.C.P. Legal Defense Fund, 
Inc., is independent of other organizations and is supported 
by contributions from the public. For many years its at­
torneys have represented parties in this Court and the 
lower courts, and it has participated as amicus curiae in 
this Court and other courts.

Attorneys from the N.A.A.C.P. Legal Defense and Edu­
cational Fund, Inc. litigated before this Court the land­
mark case of Brown v. Board of Education, 347 U.S. 483 
(1954) which declared unconstitutional state-imposed seg­
regation of the races in public education. Since Brown, 
its attorneys have been actively involved in litigation de­
signed to ensure that the mandate of that decision was 
properly and effectively implemented by lower federal 
courts. In Swann v. Charlotte-Mecklenburg Board of Edu­
cation, 402 U.S. 1 (1971), a case also handled by Legal 
Defense Fund attorneys, this Court attempted to provide 
guidance to lower federal courts and school boards with 
respect to the nature and degree of desegregation required 
by Brown, nearly seventeen years after that decision be­
came the law of the land.1 It was clearly this Court’s hope 
that segregated school systems would proceed with the 
job of converting to unitary status. Thereafter, federal 
courts could turn their limited resources to other important

1 Between Brown and Swann, Legal Defense Fund attorneys 
argued the following desegregation eases, among other's, before this 
Court: Brown v. Board of Education, 349 U.S. 294 (1955) ; Cooper 
v. Aaron, 358 U.S. 1 (1958); Griffin v. County School Board of 
Prince Edward County, 377 U.S. 218 (1964) ; Green v. County 
School Board of New Kent County, 391 U.S. 430' (1968) ; and 
Alexander v. Holmes County Board of Education, 396 U S 19 
(1969).



3

matters, leaving school hoards with full authority to man­
age their educational programs free of judicial interven­
tion or supervision.

In this litigation, the Court is faced for the first time 
with the task of construing language in Swann relating to 
the circumstances under which federal court jurisdiction 
over a desegregation case may appropriately be ended. In 
that regard, Swann stated:

At some point, these school authorities and others like 
them should have achieved full compliance with this 
Court’s decision in Brown I. The systems would then 
be “unitary” in the sense required by our decisions 
in Green and Alexander.
It does not follow that the communities served by 
such systems will remain demographically stable, for 
in a growing, mobile society, few will do so. Neither 
school authorities nor district courts are constitution­
ally required to make year-by-year adjustments of the 
racial composition of student bodies once the affirm­
ative duty to desegregate has been accomplished and 
racial discrimination through official action is elimi­
nated from the system. This does not mean that federal 
courts are without power to deal with future problems ; 
but in the absence of a showing that either the school 
authorities or some other agency of the State has 
deliberately attempted to fix or alter demographic 
patterns to affect the racial composition of the schools, 
further intervention by a district court should not be 
necessary. 402 U.S. 1, at 31-32'.

Based upon the extensive involvement of Fund attorneys 
in school desegregation cases over the years, we submit 
that this Court’s decision in Swann has been a significant, 
positive force in increasing the pace and improving the



4

quality of efforts to dismantle dual systems of public edu­
cation. But, meaningful changes brought about by Swann 
did not happen overnight. Since 1971, lower federal courts, 
with few exceptions, have been required to exercise close 
and continuing supervision of various systems to ensure 
that acceptable desegregation plans would be devised and 
effectively implemented.

In some situations, many of which are handled by Legal 
Defense Fund attorneys, court supervision is still neces­
sary. This brief is being filed to bring to the Court’s 
attention considerations which warrant application of a 
realistic standard for determining whether lower federal 
courts have properly decided to retain jurisdiction over 
desegregation cases.

Argument

Almost seventeen years passed after Brown before ex­
tensive compliance got underway. Given this history of 
resistance it is not surprising that court efforts to secure 
compliance with Swann have encountered more than a little 
difficulty. In some systems, boards resisted assuming re­
sponsibility for devising plans that achieved the “greatest 
possible degree of desegregation;” other devised plans 
that appeared on paper to have prospects for eradicating 
segregation but proved ineffective. Yet others have imple­
mented generally acceptable desegregation plans that have 
required minor adjustments after implementation to ensure 
continued effectiveness. In each case, successful desegre­
gation has depended largely upon the extent to which the 
lower federal courts have faithfully discharged the crucial 
supervisory roles this Court defined in Swann. Where 
courts have insisted that boards produce desegregation 
plans that worked and worked realistically “now,” and have 
required boards to make adjustments to avoid foreseeable



5

resegregation, stable desegregated systems have resulted. 
Where courts have accepted “ paper compliance” and 
resisted the duty to review how so-called unitary plans 
operated in practice, unstable, resegregated and dislocated 
systems have developed. In the former situations, courts 
have been able to get out of the desegregation business; 
in the latter, litigation persists. As the Fifth Circuit Court 
of Appeals pointed out, “one swallow does not make a 
spring.” Lemon v. Bossier Parish School Board, 444 F.2d 
1400, 1401 (5th Cir. 1971): even under the best of circum­
stances, district courts should observe the operation of a 
desegregation plan in practice for a few years before 
declaring a system unitary.2

Here, the Pasadena City Board of Education asserts 
that it has dismantled its dual system and should be freed 
from further judicial supervision. Alternatively, it argues 
that continuing supervision does not justify its being pro­
hibited from instituting a new student assignment plan 
which it regards as educationally superior to one previously 
approved by court order. The respondents contend that 
the Pasadena Board has not entirely satisfied the require­
ments of Brown and Swann and that the proposed new 
plan would resegregate, not further desegregate, the Pasa­
dena system. Both the district court and the court of 
appeals below have agreed that continuing supervision is 
required and that the Board’s new proposal would not 
advance desegregation. Presented for this Court’s reso­

2 In fact, the Fifth Circuit, after Swann, established a circuit- 
wide rule that district courts should retain jurisdiction of desegre­
gation cases where terminal plans had been implemented for “not 
less than three school years,” during which time affected school 
boards must file semi-annual reports on such things as pupil and 
teacher assignments, proposed construction, transportation and 
student transfers. At the end of the three-year period, dismissal 
may be granted only after plaintiffs have received notice and the 
opportunity to be heard. Youngblood V. Board of Public Instruc­
tion, 448 F.2d 770 (5th Cir. 1971).



6

lution, therefore, is the question of whether the lower 
courts abused their discretion and acted contrary to Swann 
by determining that continued supervision of the Pasadena 
system was necessary under the circumstances.

We submit that the Court would be aided in deciding 
this case by the example of the Swann case itself, where 
active, close, sensitive, yet resolute, lower federal court 
supervision successfully moved a dual system to the point 
of stable desegregation, warranting an end to judicial 
intervention. By assessing the facts which the district court 
addressed in achieving compliance in Swann, this Court 
may perceive the Pasadena case in a useful perspective.

On May 6, 1971, plaintiffs in Swann filed a motion for 
further relief in the trial court seeking an order 1) requir­
ing the defendant Board to comply with previous desegre­
gation orders and 2) enjoining the Board from proceeding 
with any school construction, additions, or abandonments 
without judicial approval. On June 17 and 18, 1971, the 
district court held hearings with respect to a Board pro­
posal to alter the Charlotte-Mecklenburg desegregation 
plan (the “Finger Plan” ) upheld by this Court in Swann v. 
Charlotte-Mecklenburg Board of Education, 402 U.S. 1 
(1971). These “partly formed proposals” involved the fol­
lowing notable changes: 1) closing two formerly black 
schools; 2) utilizing a formerly high school; 3) reducing 
the capacity of 15 formerly black elementaries; 4) convert­
ing 9 of these 15 elementaries to sixth grade centers; 5) 
employing “ one-way” busing of blacks to formerly all- 
white schools; 6) increasing the number of vacant class­
rooms in the system; and 7) increasing the busing times 
and distances particularly for black children. The Court’s 
response, in its memorandum of June 22, 1971 was :

[WJhen the plan is studied in depth and its purposes
and results emerge through its statistics, it becomes



7

apparent that it seeks to raise issues which were de­
cided two years ago; that it is regressive and unstable 
in nature and results; that it would retreat from ap­
proved arrangements and put the burdens of desegre­
gation primarily upon the black race; that it would 
unlawfully discriminate against black children; that 
its methods are discriminatory; and that it should not 
be approved. Swann v. Chariotte-Mecklenburg Board 
of Education, 328 F..Supp. 1346, at 1350 (W.D.N.C. 
1971)

The court, noting that “ ‘white flight’ was advanced as the 
chief reason for the board’s proposals,” concluded that it 
was not a “ serious threat to the public schools of Mecklen­
burg.” Id. at 1352. In response, the Board withdrew its 
proposals and promised to present revised suggestions 
within a few days. The revised proposals, a “feeder plan,” 
envisioned the closing of one black school (Double Oaks) 
and the use of two others (Villa Heights and University 
Park) as sixth grade centers. In its order of .June 29, 1971, 
the court found no valid, non-racial reasons for these 
proposals. The court decided, however, to allow the Board 
the option of implementing its feeder plan, as long as 
Double Oaks was not closed and Villa Heights and Uni­
versity Park were used to capacity, or of continuing to 
utilize the “ Finger Plan.” In any event, the court ruled 
that:

The defendants are enjoined and restrained from 
operating any school for any portion of a school year 
with a predominantly black student body. The move­
ment of children from one place to another within the 
community and the movement of children into the 
community are not within the control o f the school 
board. The assignment of those children to particular



8

schools is within the total control of the school board. 
The defendants are therefore restrained from assign­
ing a child to a school or allowing a child to go to a 
school other than the one he was attending at the 
start of the school year, if the cumulative result of 
such assignment in any given period tends substan­
tially to restore or to increase the degree of segrega­
tion in either the transferor or the transferee school.3 
32S F.Supp. at 1349-50.

On an appeal to the Fourth Circuit Court of Appeals of 
this decision by the Board, the district court was unani­
mously affirmed, en banc. Swann v. Charlotte-MecMenburg 
Board of Education, 453 F.2d 1377 (4th Cir. 1972).

On August 27, 1971, plaintiffs filed a motion for further 
relief alleging as grounds for court action as follows:

At the board meeting on April 24, 1971, the board dis­
regarded its conditional transfer provision for senior 
high school students and transferred all senior high 
school students who had indicated a desire to transfer 
to another school. This has resulted in resegregation 
of West Charlotte High School, the previously all black 
school, and has substantially reduced the number of 
students assigned to that school for the 1971-72 school 
year. Additionally, the board has permitted transfers 
of students in other grades in a way which has pro­
moted resegregation of schools. The board has also 
failed to determine the correct addresses of students 
and has thereby permitted the assignment of many 
students to schools other than the ones they were to

3 This order merely restated an earlier requirement with respect 
to the Board’s duty to prevent the creation of all-black or pre­
dominantly black schools, approved by this Court. See 311 F.Supp. 
265, 268 (W.D.N.C. 1970).



9

attend under the Board’s proposed Feeder plan. This 
is [sic] further tended to resegregate the schools.

[and]

Since the Court’s June 29, 1971 order, the board has 
made numerous changes in the proposed Feeder Plan 
it previously submitted to the Court. The board has 
not filed copies of these changes with the court or 
served copies of same upon counsel for the plaintiffs, 
(pp. 2-3)

After a hearing conducted on September 22, 1971 with 
respect to these allegations, the court found on October 21, 
1971, that “ several highly specific official actions of the 
school board itself since the April, 1971 decision of the 
Supreme Court have added new official pressures which 
tend to restore segregation in certain schools.” 334 F.Supp. 
623, at 628 (W.D.N.C. 1971). It identified these pressures 
as stemming from 1) the construction program (use and 
location of mobile units), 2) the under population and pro­
posed closing of formerly black schools, and 3) several 
recent decisions about pupil assignments and transfers. 
The court pointed out that the current plan contemplated 
the use of 232 mobile units, primarily at suburban schools 
remote from the black community, that black schools were 
being operated at considerably less than capacity, that low- 
and middle-income white children were being assigned to 
and wealthier white children removed from formerly black 
schools and that the Board had allowed numbers of white 
children to abandon and black children to return to for­
merly black schools in violation of existing court orders. 
Id. at 628. The court indicated moreover that:

With that history in view, it is necessary to inquire 
into the board’s present plan or program for dealing



10

with foreseeable problems of re-segregation in response 
to the pressures which have been mentioned in this 
order. If the board has a program or policy to deal 
with the results of these pressures, the schools can 
nevertheless be operated in compliance with the law. 
If it has no plan, many of the schools are likely to 
re-segregate.

There is no such plan and no such program.

On the issue of “ resegregation” of certain formerly all­
black elementaries under the feeder plan, the court pointed 
out that this result was caused by the Board’s failure to 
make allowance for the 1,500 westside, low-cost, principally 
black housing units which were currently being completed 
or occupied. It concluded:

Racial discrimination through official action has not 
ended when a school board knowingly adopts a plan 
likely to cause a return to segregated schools and then 
refuses to guard against such resegregation.

It is therefore apparent that although the current 
plan as now working should be approved, the case will 
have to be kept active for a while longer. Id. at 629.

Plaintiffs’ motion for further relief was denied by the 
court.

On November 7, 1972, plaintiffs filed a motion for fur­
ther relief seeking an order:

. . . directing the defendants to take immediate steps 
to eliminate the continued racial identity of West 
Charlotte Senior High School and continued racial 
discrimination with respect to professional personnel
(p. 1).



11

On April 2, 1973, plaintiffs filed a motion to add addi­
tional parties defendants—new board members and white 
plaintiffs in a new suit. Plaintiffs alleged that:

The Board has failed to comply with the Court order. 
Several schools have now or are becoming resegre­
gated because of the Board’s plan and the Board’s 
failure “ to adopt and implement a continuing pro­
gram . . .  of assigning pupils . . . for the conscious 
purpose of maintaining each school . . .  in a condi­
tion of desegregation.”

At a May 8, 1973 hearing, the Board proposed what the 
court described as a “ ‘bare minimum’ or ‘get by’ ” group 
of changes. The court suggested that it would be wise 
for the Board to develop a more comprehensive revision 
for 1974-75 implementation, and directed that certain 
changes be made in its plan for 1973-74. On May 18, the 
Board returned to court with these 1973-74 revision.

In its order of June 19, 1973, the court approved modifi­
cations for the 1973-74 academic year but required the 
Board to prepare by March 1, 1974 a comprehensive plan 
for “pupil assignment and desegregated school operation” 
to be implemented at the start of the 1974-75 school year. 
Though the court found that much genuine progress was 
promised by current Board proposals, it concluded that 
they did “not yet satisfy the constitutional requirements 
of equal protection of the laws (fairness)” and that con­
tinuing jurisdiction was still required.

Of particular relevance to the issues in the Pasadena 
case before the Court is the court’s analysis of the rela­
tionship between pupil assignments and so-called “white 
flight”  within the Charlotte-Mecklenburg system:

Defendants proposed to increase the West Charlotte 
studenty body by transferring to West Charlotte 180 
white and 100 black students from the Statesville



12

Road (North High School) area and 350 white and 
125 black students from the Devonshire (Independence 
High School) area . . .

The problem with the proposal is not with its numer­
ical results, but with its fairness and stability.

# # #

The sore spot may not really be the assignment to a 
school eight or ten miles away (high school students 
usually have to travel quite a ways to school); nor, 
it is to be hoped, is it the educational shortcomings of 
West Charlotte; West Charlotte is not expected to 
suffer any deficiency of academic offerings nor extra­
curricular activities in the future. Rather, the sore 
spot with the people of Devonshire and elsewhere in 
the Garinger-North-West Charlotte-Harding area is 
that people in the southeast part of the county, in­
cluding many who live closer to West Charlotte High 
School than Devonshire, are not being required to at­
tend a “black”  school at any time during their high 
school career (nor, as a practical matter, for more 
than a year or two at any stage of their education). 
I f the assignments were done in fairness instead of 
in such a way that they effectively re-zone real estate 
and drastically affect land values, most, but of course 
not all of the valid objections would be reduced or 
eliminated.

Significantly, the Pupil Assignment Study (p. 10)4 
reports that “ the assignment plan has had greater 
and more immediate effect on housing in Charlotte 
than on the schools.”

A fair plan would not have such effects.

362 F. Supp. 1223 at 1235-36. (W.D.N.C. 1973).

4 This study was done in March, 1973 by Board staff.



13

The Board’s appeal of this June 19, 1973 district court 
opinion and order was dismissed on January 15, 1974 by 
the Fourth Circuit Court of Appeals, sitting en banc. 
Sivann v. Charlotte-Mecklenburg, 489 F.2d 966 (4th Cir. 
1974).5

On July 10, 1974, the Board submitted to the court a 
comprehensive desegregation plan for Charlotte-Mecklen­
burg schools to be implemented for the 1974-75 academic 
year. In approving this plan by order of July 30, 1974, 
the district court remarked as follows:

Adoption of these new guidelines and policies is un­
derstood as a clean break with the essentially “ reluc­
tant” attitude which dominated Board actions for 
many years. The new guidelines and policies appear 
to reflect a growing community realization that equal 
protection of laws in public education is the concern 
of private citizens and local officials and is not the 
private problem of courts, federal or otherwise. This 
court welcomes the new guidelines and policies and 
the new plan, and the declared intention of the new 
Board to carry them out. If implemented according 
to their stated principles, they will produce a “unitary” 
(whatever that is) school system. 379 F. Supp. 1102, 
1103 (W.D.N.C. 1974).

The court noted that the comprehensive plan would in­
clude the following features, among others (1104-05):

1) Transfer policies and procedures for the purpose of 
maintaining an integrated school system with a 
stable assignment program;

B On December 10, 1973, the district court enjoined certain white 
parents from prosecuting a state action which challenged the 
Board’s decision to increase black participation in a program for 
talented students. The Court of Appeals affirmed this ruling on 
July 23, 1974. Swann v. Charlotte-Mecklenburg Board of Educa­
tion, 501 F.2d 383 (4th Cir. 1974).



14

2) Distances of bus travel have been somewhat reduced; 
years of bussing for many children have been re­
duced; and the burdens of bussing have been more 
equally, though of course not perfectly, redistributed;

3) Monitoring procedures to prevent adverse trends in 
racial make-up of schools are promised ; and

4) School location, construction and closing are to be 
planned to simplify rather than, to complicate de­
segregation.6

On July 11, 1975, the United States District Court for 
the Western District of North Carolina closed its files on 
Swann v. Charlotte-Mecklenburg Board of Education, Civil 
No. 1974, with the following words:

Dismissal is neither usual nor correct in a case like 
this where continuing injunctive or mandatory relief 
has been required. Pacts and issues once decided on 
their merits ought, generally, to remain decided. This 
case contains many orders of continuing effect, and 
could be re-opened upon proper showing that those 
orders are not being observed. The court does not 
anticipate any action by the defendants to justify a 
re-opening; does not anticipate any motion by plain­
tiffs to re-open; and does not intend lightly to grant 
any such motion if made. This order intends therefore 
to close the file; to leave the constitutional operation 
of the schools to the Board, which assumed that bur­
den after the latest election; and to express again a 
deep appreciation to the Board members, community 
leaders, school administrators, teachers and parents 
wdio have made it possible to end this litigation. (Slip 
op. at 1-2)

6 In Swann, this Court emphasized the important role that school 
board decisions with respect to construction of new schools and the 
closing of old ones play in determining whether a system remains 
desegregated or resegregates. Id. at 20.



15

A  copy of this entire “ Swan Song,” as the district court 
characterized its final order, is included in Appendix A 
hereto.

The Charlotte-Mecklenburg experience described above 
demonstrates several important points about the appro­
priate nature, extent and duration of federal court super­
vision of so-called “unitary” systems.7 First, even the best 
desegregation plan on paper may require extensive revi­
sions and modifications in practice. An entirely new plan 
may be necessary where original proposals for desegrega­
tion have proved unworkable and ineffective. Second, a 
desegregation plan will be effective only if the school board 
wants it to work.. Even in the absence of actual bad faith, 
the oversight of a district court is crucial to ensure that 
disregard for the segregative consequences of board conduct 
will not go uncorrected. Third, plans which place the 
burden of desegregation upon blacks and low- and middle- 
income whites, while leaving “protectorates” of wealthier 
whites untouched, have produced resistance, instability and 
“white flight.”  “ Fair” plans may be expected to have the 
opposite effect. Fourth, the key to a successful plan, which 
a court can expect with confidence to effect compliance 
with Brown and Swann in the long run without judicial 
supervision, is a school board that accepts affirmative con­
stitutional responsibility to establish and maintain a de­
segregated system. Compare the ways in which the court 
described the two Charlotte-Mecklenburg boards in office 
between April, 1971 and July, 1975. In passing upon the 
1973 Board’s proposals for 1973-74, the court remarked:

Until now, defendants had taken no initiative whatever
in coping with problems of desegregation; their

7 Charlotte-Meeklenburg’s history is not unique. In Appendix 
B, hereto, we have listed from the Legal Defense Fund’s docket 31 
case's in 12 states where significant litigation occurred after Swann. 
These cases have also either been dismissed or are inactive, subject 
to montoring through periodic reports filed by affected school 
boards.



16

actions have awaited court orders or instructions, and 
have been based on minimum interpretation of what 
compliance would require. 362 F.Supp. 1223, at 1236-37.

In its order dismissing the case, the court referred to the 
Board now in office in the following manner:

Since early 1974, the case has been quiet. No new or 
old issues have been raised by the litigants or decided 
by the court. The new Board has taken a more positive 
attitude toward desegregation and has at last openly 
supported affirmative action to cope with recurrent 
racial problems in pupil assignment. Though con­
tinuing problems remain, as hangovers from previous 
active discrimination, defendants are actively and in­
telligently addressing these problems without court 
intervention. It is time, in the tenor of the previous 
order, to be “closing the suit as an active matter of 
litigation . . . ”

The lesson of Charlotte-Mecklenburg then, for purposes 
of this Court’s determination of the issues raised in the 
Pasadena case, is that in moving a segregated school system 
to unitary status:

The attitude or state of mind at the top, among the 
Board of Education, is far more important than the 
physical details or logistics of pupil assignment. If 
that attitude or policy is negative or technical, the 
children know it and feel i t ; then “ ratios” and “bussing” 
assume unwanted but unavoidable significance. On the 
other hand, if the top level attitude or policy is equal 
treatment for all, the word gets around; hackles fall; 
litigants and lawyers and courts get easier to please; 
and the details of pupil assignment become less con­
troversial and more commonplace.



17

And tile recurrent injury to the spirits and motivation 
of the children themselves—as well as the unrest 

among parents—can be alleviated. 379 F.Supp. at 1104.

In Pasadena, the petitioner school board has shown 
hostility to making desegregation work, a commitment to 
doing the very minimum to comply with court orders, and 
a desire to replace the current plan with an approach that 
offers strong possibilities for resegregating the system. 
Under such circumstances, the trial and appellate courts 
were correct in determining that continuing judicial super­
vision of the Pasadena system was necessary and proper. 
Until the Pasadena board demonstrates that it has the 
commitment to make desegregation work, an appraisal 
the trial court is uniquely qualified to make, Swann vali­
dates an exercise of discretion which determines that 
judicial supervision should continue.

CONCLUSION

For the foregoing reasons, the decisions below should 
be affirmed by this Court.

Bespectfully submitted,

J ack Greenberg 
J ames M. Nabbit, III 
Charles S tephen B alston 
D rew S. D ays, III 
Melvyn L eventhal

10 Columbus Circle 
New York, New York 10019 

Attorneys for the N.A.A.C.P. 
Legal Defense and Educational 
Fund, Inc.



APPENDICES



Appendix A

Final Order of the District Court

(Filed July 11, 1975)

l x  THE

DISTRICT COURT OF THE UNITED STATES 

F ob the W estern D istrict oe N orth Carolina 

Charlotte Division 

Civil No. 1974

J ames E. Sw ann , et al., 

—vs—
Plaintiffs,

T he Charlotte-M ecUlenbtjrg B oard oe E ducation, et al.,

Defendants.

F inal Order 
(S wann Song)

On July 10, 1974, defendants filed a report covering 
certain changes in the proposed 1974-75 pupil assignment 
plan, and requested the court to dismiss the suit. On 
July 30, 1974, the court entered an order approving the 
revised plan under specified conditions, and expressing 
appreciation to the Board, the Citizens Advisory Group 
and the school staff people and others who had worked 
to make it possible. The order closed with the comment 
that, after May 1, 1975,

“ . . . assuming and believing that no action by the 
court will then be required, I look forward with

la



2a

pleasure to closing the suit as an active matter of 
litigation . .

Since early 1974, the case has been quiet. No new or 
old issues have been raised by the litigants or decided 
by the court. The new Board has taken a more positive 
attitude toward desegregation and has at last openly 
supported affirmative action to cope with recurrent racial 
problems in pupil assignment. Though continuing prob­
lems remain, as hangovers from previous active discrim­
ination, defendants are actively and intelligently address­
ing these problems without court intervention. It is time, 
in the tenor of the previous order, to be “ closing the 
suit as an active matter of litigation . .

Dismissal is neither usual nor correct in a case like 
this where continuing injunctive or mandatory relief has 
been required. Facts and issues once decided on their 
merits ought, generally, to remain decided. This case 
contains many orders of continuing effect, and could be 
re-opened upon proper showing that those orders are 
not being observed. The court does not anticipate any 
action by the defendants to justify a re-opening; does 
not anticipate any motion by plaintiffs to re-open; and 
does not intend lightly to grant any such motion if made. 
This order intends therefore to close the file; to leave 
the constitutional operation of the schools to the Board, 
which assumed that burden after the latest election; and 
to express again a deep appreciation to the Board mem­
bers, community leaders, school administrators, teachers 
and parents who have made it possible to end this liti­
gation.

The duty to comply with existing court orders respect­
ing pupil assignment of course remains. So, also, does

Appendix A



3a

the duty to comply with constitutional and other legal 
requirements respecting other forms of racial discrimina­
tion.

Ghosts continue to walk. For example, some perennial 
critics here and elsewhere are interpreting Professor James 
Coleman’s latest dicta in support of the notion that courts 
should abandon their duty to apply the law in urban 
school segregation cases. Coleman is worried about “white 
flight,” they say; school desegregation depends on Cole­
man; therefore the courts should bow out; “ cessante ra~ 
tione, cessat ipsa lex,”  they say.

The local School Board members have not followed 
that siren. Perhaps it is because they realize that this 
court’s orders, starting with the first order of April 23, 
1969, are based, not upon the theories of statisticians, 
but upon the Constitution of the United States, and be­
cause they recall and are prepared to follow the law of 
this case which, as to Coleman, is contained in the order 
of August 3, 1970 (318 F.Supp. 786, 794, W.D.N.C. 1970), 
as follows:

“ The duty to desegregate schools does not depend 
upon the Coleman report, nor on any particular ra­
cial proportion of students [emphasis from original], 
— The essence of the Brown decision is that segrega­
tion implies inferiority, reduces incentive, reduces mo­
rale, reduces opportunity for association and breadth 
of experience, and that the segregated education it­
self is inherently unequal. The tests which show the 
poor performance of segregated children are evidence 
showing one result of segregation. Segregation would 
not become lawful, however, if all children scored 
equally on the tests.”  (Emphasis added.)

Appendix A



Appendix A

I do not anticipate a revival, in the Charlotte-Mecklen- 
bnrg school system, of this and other questions which 
have already been exhaustively (and expensively) liti­
gated and definitively answered.

With grateful appreciation to all who have made pos­
sible this court’s graduation from Swann, it is therefore

Ordered:

1. That this cause be removed from the active docket.

2. That the file be closed.

This 11th day of July, 1975.

/ s /  J ames B. M cM illan 
James B. McMillan

United States District Judge



5a

Appendix B

A labama

Hereford v. Huntsville Board of Education, 504 F.2d 857 
(5th Cir. 1974)*—Terminal desegregation plan approved 
February 19, 1975.

Miller v. Board of Education of Gadsden, 482 F.2d 1234 
(5th Cir. 1973)— Terminal desegregation plan ordered 
September 11, 1973.

A rkansas

Clark v. Board of Education of Little Rock, 449 F.2d 493 
(8th Cir. 1971), cert, denied 405 IT.S. 936 (1972)—Plain­
tiffs entered into stipulation barring litigation over plan 
in force for at least two years from June 28, 1973 and 
for so long as Board abides by plan implemented for 
1973-74 and for future years.

Davis v. Board of Education of North Little Rock, 449 F.2d 
500 (8th Cir. 1971)—Terminal desegregation plan im­
plemented in 1971-72.

Yarborough v. Hulbert-West Memphis School Dist. No. 4, 
457 F.2d 333 (8th Cir. 1972)— Terminal desegregation 
plan ordered February 11, 1972.

F lorida

Allen v. Board of Public Instruction of Broward County, 
432 F.2d 362, cert, denied 402 U.S. 952 (1971)— Terminal 
desegregation plan ordered June 21, 1971.

* Citations to the latest reported decision's in these cases are in­
cluded primarily for purposes of identification.



6a

Bradley v. Board of Public Instruction of Pinellas County, 
431 F.2d 1377, cert, denied 402 U.S. 943 (1971)— Terminal 
desegregation plan ordered January 11, 1972.

Ellis v. Board of Public Instruction of Orange County, 
465 F.2d 878, cert, denied 410 U.S. 966 (1973)— Terminal 
desegregation plan approved December 30, 1972.

Harvest v. Board of Public Instruction of Manatee County, 
429 F.2d 414, cert, denied 402 U.S. 943 (1971)— Case 
dismissed from active docket, September 15, 1973; re­
porting required as to proposed new construction.

Steele v. Board of Public Instruction of Leon County, 448 
F.2d 767 (5th Cir. 1971)— Terminal plan ordered May 
10, 1974, reinstating plan approved January 30, 1970.

Weaver v. Board of Public Instruction of Brevard County, 
467 F.2d 473, cert, denied 410 U.S. 982 (1973)—Terminal 
plan approved May 15, 1973.

Youngblood v. Board of Public Instruction of Bay County, 
448 F.2d 770 (5th Cir. 1971)—Terminal plan approved 
for 1971-72.

Georgia

Harrington v. Colquitt County Bd. of Education, 460 
F.2d 193, cert, denied 409 U.S. 915 (1972)—Terminal 
plan ordered October 27, 1972.

Lockett v. Board of Education of Muscogee County, 442 
F.2d 1336 (5th Cir. 1971).

L ouisiana

Celestain v. Vermillion Parish. School Board, 364 F.Supp. 
618 (W.D. La. 1972)—Terminal plan ordered December 
30, 1974; case placed on inactive docket for two years.

Appendix B



7a

Gordon v. Jefferson Davis Parish School Board, 460 F.2d 
1062 (5th Cir. 1972)— Terminal plan ordered for 1972-73.

M ississippi

Adams v. Rankin County Board of Education, 485 F.2d 
324, 524 F.2d 928 (5th Cir. 1975).

Bell v. West Point Municipal Separate School Dist., 446 
F.2d 1362 (5th Cir. 1971)—Terminal plan ordered Au­
gust 31, 1971.

Franklin v. Quitman County Board of Education, 443 F.2d 
909 (5th Cir. 1971).

Henry v. Clarksdale Municipal Separate School Dist., 480 
F.2d 583 (5th Cir. 1973).

Singleton v. Jackson Municipal Separate School Dist., 509 
F.2d 818 (5th Cir. 1975).

N orth Carolina

Eaton v. New Hanover County Bd. of Education, 459 F.2d 
684 (4th Cir. 1972)— Terminal plan ordered July 22,1971.

Wheeler v. Durham City Bd. of Education, 521 F.2d 1136 
(4th Cir. 1975)— Terminal plan approved August 13,1975.

Oklahoma

Dowell v. Board of Education of Oklahoma City, 465 F.2d 
1012 (10th Cir. 1972)— Terminal plan ordered February, 
1972; modified in part June 3, 1974.

South Carolina

Adams v. School Dist. No. 5, Orangeburg County, 444 F.2d
99 (4th Cir. 1971)—Terminal plan ordered July 6, 1971.

Appendix B



8a

Appendix B

T ennessee

Kelley v. Metropolitan County Board of Educ., 463 F.2d 
732, cert, denied, 409 U.S. 1001 (1972)— Terminal plan 
implemented 1971-72.

T exas

Flax v. Potts, 464 F.2d 865, cert, denied, 409 U.S. 1007 
(1972)—-Terminal plan approved August 23, 1973.

V irginia

Brewer v. School Bd. of Norfolk, 456 F.2d 943, cert, denied, 
406 U.S. 933 (1972).

Downing v. School Board of Chesapeake, 455 F.2d 1153 
(4th Cir. 1972).

Hart v. County School Board of Arlington County, 459 
F.2d 981 (4th Cir. 1972)— Terminal plan ordered August
10, 1971.

Thompson v. School Board of Newport News, 363 F. Supp. 
458 (E.D. Va. 1973)— Terminal plan approved September
11, 1973.



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