Answer to Motion to Add Additional Parties Defendant and for Further Relief

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IN THE DISTRICT COURT OF THE UNITED STATES 
FOR THE WESTERN DISTRICT OF NORTH CAROLINA 

. Charlotte Division 4 

JAMES E. SWANN, et al., x 
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Plaintiffs, % 
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CHARLOTTE-MECKLENBURG BOARD * 
OF EDUCATION; NORTH CAROLINA { 
STATE BOARD OF EDUCATION; DR. % 
A. CRAIG PHILLIPS, Superintendent { 
of Public Instruction of the State of * 

North Carolina, et als., | 
* 

Defendants. | nn, 
» 

AND 1. CIVIL ACTION NO. 197g 
* “: 

HONORABLE ROBERT H. SCOTT, I 
Governor of the State of North Carolina; % 3 Siri 
HONORABLE A. C. DAVIS, Controller I 

sk of the State Department of Public Instruction; 
HONORABLE WILLIAM K. McLEAN, 
ES Saw Boe ot the Runeplon anv af Af arte an Judge Oi tile Superior Court of Mecklen- 

burg County, et als., 

Additional Parties Defendant. 

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ANSWER TO MOTION TO ADD ADDITIONAL PARTIES 
  

  

DEFENDANT AND FOR FURTHER RELIEF 

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THE DEFENDANTS, THE NORTH CAROLINA STATE BOARD ki 

OF EDUCATION, DR. A, CRAIG PHILLIPS, SUPERINTENDENT oF na 

~ PUBLIC INSTRUCTION, ROBERT H. SCOTT, GOVERNOR OF THE | 

STATE OF NORTH CAROLINA; A. C. DAVIS, CONTROLLER OF THE 

‘STATE DEPARTMENT OF PUBLIC INSTRUCTION, AND WILLIAM Ei 

McLEAN, JUDGE OF THE SUPERIOR COURT OF MECKLENBURG COUNTY 

(hereinafter referred to as: STATE OFFICIALS ), ANSWERING THE 

MOTION TO ADD ADDITIONAL PARTIES DEFENDANT, AND FOR FUR- _ 
fie | "THER RELIEF, FOR THEIR ANSWER ALLEGE: : ed 

 



  

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(1 It is admitted that on February 3, 1970, the Disivicl Court 

of the United States for the Western District of North Carolina entered 

an order directing the Charlotte-Mecklenburg Board of Education to de- 

segregate the public schools administered by said Board; it is Sarthar 

admitted that the Court ordered that students be assigned to the various 

public school facilities of said Board under plans adopted by the Board 

‘and by the Court's consultant, and all orders and plans are referred to 

and made a part of this allegation not for the purpose of acquiescing therein 

or admitting the validity thereof, but for the purpose ‘of showing the action 

taken by the Court ond the action taken by the Board; # is denied that any 

action to whiclr the motion of the plaintiffs refers was taken by the Char- 

lotte- Mecklenburg Board of Education as a voluntary act on the part of 

" * sald Board, but, to the contrary, these defendants allege that each such 

action taken was compelled by orders of the Court; the plaintiffs them- 

selves in their allegations refer to dr dire of the Court and directives of 

the Court, bey : 

2) It is admitted that a group of individuals, an unincorporated 

association by the name of "Concerned Parents Association", instituted 

an action in the Superior Court of Mecklenburg County and obtained an 

order from a Superior Court j udge enjoining the superintendent from 

paying expenses and fees of the Court consultant; that said civil action now 

4 ponding in the Superior Court of Mecklenburg County and all its pleadings, 

orders and proceedings are hereby referred to and madé a part of this 

“Answer; it is further alleged that said "Concerned Parents Association" 

had a right under the laws of the State of North Covolin to institute said 

” action, which is related to the use of public funds, including the proceeds 

of taxes eoltebied from and petit bg Saiitidin of the said Association and 

‘other persons similarly situated; it is admitted that said civil action in the 

Superior Court of Mecklenburg County was instituted prior to the filing of 

the Order of the District Court of the United States on February 5, 1970. 

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(3) It is admitted that on February 12, 1970, the "Concerned 

Parents Association' obtained an order from the Judge of the Superior 
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Court of Mecklenburg County, enjoining the Charlotte-Mecklenburg 
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Board of Education from spending any public funds to purchase and 

operate school buses for the purpose of redressing any racial imbalance. 

It is denied, however, that said Order was obtained to obstruct the en- | 

forcement of any lawful order of the District Court of the United States, 

but, to the contrary, said Order was obtained to prevent the busing of 

school children for the purpose of changing the racial composition of the 

student enrollment in specific public schools by compelling school children 

to attend a specific public school contrary to the will of their parents 

solely because of the race of such children, contrary to the Fourteenth 

Amendment to the Constitution of the United States as construed in BROWN 

v. BOARD OF EDUCATION, 347 U. S. 483, 98 L. ed. 873 "4 S. Ct. 686, 38 

ALR 2d 1180, and contrary to the Civil Rights Act of 1964, and Chapter 

1274 of the Session Laws of 1569, enacted by the General Assembly of North 

Carolina; that the Superior Court of Mecklenburg County had a legal right 

to pass upon the statutes and status of busing pupils and to enter the order 

therein complained of by the plaintiffs, and the prosecution of the action 

in the State courts is not subject to injunction or restraint on the part of 

the District Court of the United States; that the action in the State court is 

lawfully brought therein to enjoin the unlawful expenditure of State funds 

and County funds, these being a matter of State law over which the United 

States District Court has no jurisdiction. 

(4) It is admitted that Robert H. Scott, Governor of the State 

of North Carolina, ordered and directed that no public State funds be 

expended for the busing of public school pupils to redress racial imbalance 

as he had a right and duty to do under the Executive Budget Act of the State 

of North Carolina inasmuch as he was dealing with and preventing an 

unlawful expenditure of the State's public funds which are subject to the 

control of the State of North Carolina and its administrative authorities; 

that the lawful use which may be made of such funds is a matter of State 

 



  

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law and involves no question arising under the Constitution or laws of 

the United States; it is further admitted that the State Superintendent of 

Public Instruction of North Carolina and the defendant, North Carolina 

State Board of Education, approve the action taken 0 the Givotnnr of 

North Carolina in the use of State funds, which, it is alleged, do not 

belong to the Federal Government, and which are not subject to allocation 

by agents of the Federal Government; that said sieliion was taken pursuant 

to the statutes above retorts to, which prohibit the use of the said 

State funds for the busing of public school children for the mere purpose 

of nthe racial imbalance. 

(5) That these defendants, State officials, do not know the 

motives and intentions of the Honorable James Carson, a member of the 

House of Representatives of the State of North Carolina, and, therefore, 

for lack of information and belief deny the ATlonrtions related to the Honor- 

able James Carson and also deny the allegations as to the motives and in- 

tentions of other persons in relation to said Court order for lack of | 

information and belief. 

(6) It is denied that the North Carolina State Board of Education 

and the State Superintendent of Public Instruction have any statutory duties 

or any duties at all in regard to the transportation of school children; it 

is further alleged that the local boards of education are under no legal 

duty to provide transportation for school children to, from and between 

their homes and the schools in which said children are enrolled; that said 

Board of Education has no authority or control over the transportation of 

pupils in the public school system, and titer the Governor of North 

Carolina nor the North Carolina State Board of Education is required or 

permitted to allocate funds for public school transportation of pupils for 

purposes prohibited by Federal and State station: that these defendants, 

State officials, do not know the intentions of the Charlotte-Mecklenburg | 

Board of Education as to providing school buses for the transportation of 

school pupils to redress racial imbalance, and, therefore, deny all alle- 

gations relating to said subject. 

 



  

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(7) It is denied that these defendants are. seeking to prevent 

desegresation of the public schools administered by the Charlotte- 

Mecklenburg Board of Education or to thwart any proper activity of this 

Court; it is further denied that these defendants are inciting disobedience 

of the law and seeking the overthrow of law and order or to coerce, or 

compel, school officials to desist or refrain from any duty imposed upon 

them by the Constitution or laws of the United States; that these defendants, 

State officials, are informed and believe, and so allege, that they have no 

authority to and may not lawfully be required to use State public funds 

contrary to the provisions of Chapter 1274 of the Session Laws of 1889, 

which expressly prohibits the use of such funds for the purpose of financing 

the transportation of public school children to, from At TELA, their 

homes and the school wherein they are enrolled for the purpose of changing 

the ratio of the children of the respective races attending such schools or 

any other school; that A. C. Davis is Controller of the State Board of Edu- 

“cation and not the Controller of the State Department of Public Instruction; 

that the said Davis is an administrative officer only, and, as such, does 

not determine the policy of the State of the expenditure of public State funds 

for public school transportation and is not a proper and necessary party to 

this action; that the Governor of North Carolina is not 2 proper and neces- 

sary party to this action and should not be added as a party defendant, and 

such addition would constitute a suit against the State as prohibited by the 

Eleventh Amendment to the Constitution of the United States; that the Honor- 

able William K. McLean is a Judge of the Superior Court of the State of 

North Carolina, and, as such, has the lawful right, authority and duty to 

hear and determine any and all civil actions instituted in any such Court 

over the sessions of which he is lawfully assigned to preside; that the 

action instituted on or about February 12, 1970, in the Superior Court of 

Mecklenburg County, to which reference is made in the motion of the 

plaintiffs in the present action, was lawfully instituted therein and it is the 

lawful right, authority and duty of the Honorable William McLean, or such 

 



  

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other judge as may from time to time be lawfully assigned to preside over 

the sessions of said Court, to hear and determine, subject to lawful 

appellate review, all issues of law and fact which have arisen or may 

arise in such action, and he may not lawfully be restrained from the lawful 

exercise of such jurisdiction and authority by the Order of this Court; 

that under the appropriate Federal statute of the United States Code 

(28 USCA 2283 ) he is immune from any restraint on the part of this Court 

~which would prohibit him from hearing and lawfully determining the issues 

of law fo fact in civil actions lawfully initiated in the said Superior Court, 

including said action to which the Motion of the plaintiffs in this action 

refers, and he is immune from restraint on the part of the Federal Court 

in the exercise by him of the said jurisdiction and authority to hear and 

determine, subject to lawful appellate review, all issues of law and fact 

arising in the said action, and, therefore, he may not lawfully be made a 

party to this action in this Court. 

| (8) That the plaintiffs are not entitled to a temporary or perm- 

- anent injunction restraining the actions of these defendants, said State 

officials, nor or the plaintiffs entitled to any mandatory injunction requir- 

ing these defendants, State officials, to proceed with providing transportation 

to or for public school students; that all allegations as to issuance of in- 

junctions relating to these defendants, State officials, are untrue and are 

denied; it is denied that as to these defendants, State officials, the plaintiffs 

are entitled to any costs or counsel fees. 

WHEREFORE, having fully answered said Motion, these dotondaintis, 

State officials, pray the Court as follows: | 
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(a) That as to these defendants, State officials, the said Motion 

be dismissed; 

(b) that all applications and requests for injunctions relating to 

the busing of the public school pupils for the redress of racial imbalance, 

or for any other purpose, as to these defendants, be dismissed and denied; 

(c) that the plaintiffs’ request for costs and counsel fees as to 

these defendants be denied; 

 



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(d) for such other and further relief as to the Court may seem 

proper and just, and that these defendants recover their costs incurred 

herein. 

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