Brief for the United States as Amicus Curiae

     [||01807706-9bb0-4ee6-9635-bea0ab46ca5a||] INDEX 

Statement... la aE 
1. Charlotte-Mecklenburg 
2. Mobile County 

Argument. bl el 
Introduction and Summary... o.oo. 0 

I. The Charlotte and Mobile school systems have 
followed policies and practices which perpetuate 
theduslsystom. . .......oo0as. oi t 

IT. The Fourteenth Amendment does not require, 
as a matter of law, racial balance in all public 
schools or integration of every all-white or 
slil-Negroschwol.. ... ol. o.oo ao 

III. The Charlotte and Mobile school boards are 
required, in converting from dual to unitary 
systems, to make organizational and assign- 
ment adjustments to eliminate the vestiges of 
the dual system but not to achieve any par- 
ticular racial balance or ratios 

Conclusion 

Appendix 

CITATIONS 
Cases: 

Adams v. Mathews, 403 F. 2d 18Y .. . _... .. _c. . oot 

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

Andrews v. City of Monroe, 425 F. 2d 1017 

Board of School Commissioners v. Davis 11 L. Ed. 24 26. .14 

Bradley v. Board of Public Instructions of Pinellas 

County, No. 28,639 (C.A. 5), modified on rehearing 

(CA. 5, July 2819700. Coa oo 

Bradley v. School Board, 382 US. 102... ........... 

Branche v. Board of Lducation of Hempstead, 204 F. 
Supp. 150 

405-880—70——1 

ARE eRe gl 6,10, 11, 12, 19, 27 

     
  

  

     
        
    
     

   12 

  

     

  

    

  

17 

     
    
     

  

    

  

23 

31 

33 

    

       

    

   
19 

     
     

19 

  

     
     
     
     
     

     

  
    



   II 

Cases—Continued Page 

Brewer v. School Board of City of Norfolk, No. 14,544 

(C.A. 4, June 22, 1970), reversing 302 F. Supp. 18, 

BOSE. Supp. 1274... cnet r ranma 22 

Brown v. Board of Education, 347 U.S. 483 _ _ ___---- 7,10, 13 

Brown v. Board of Education, 349 U.S. 294________ 9,13,27 

Carter v. Jury Commission, 396 U.S.320_ __ _____--- 27 

Carter v. West Feliciana Parish School Board, 396 

US 290... oc ooh an aaa 5,10, 11, 27 
Cassell v. Texas, 330 US, 283 cn ian de nnngianan 17 

Clark v. Board of Education of Little Rock School 

District AZ F20A008. idl 2B neni ye 16 

Cooper v.Aaron,358 U.S. 1____ o-oo 11 

Davis v. Board of School Commissioners of Mobile 

County, 414 F.2d 609_ _ _ 4, 14 

Davis v. Board of School Commissioners of Mobile 

County, No. 29,332 (C.A. 5, Aug. 28,1970) ________ 5 

Goss v. Board of Education, 373 U.S. 683____________ 11,22 

Green v. County School Board, 391 U.S. 430. ______. 2,6,9, 

11, 12, 18-19, 21, 22, 23, 24, 26, 27, 28 
Griffin v. School Board, 377 U.S. 218__ 27 

Hall v. St. Helena Parish School Board, 417 F. 2d 801 

certiorari denied, 396 U.S. 904 ________________.__ 19 

Harris v. St. John the Baptist Parish School Board sub. 

"nom. Singleton v. Jackson. Municipal Separate School : 

District, 419 F.2d 1211 _ _ o-oo 19 

Henry v. Clarksdale Municipal Separate School District, 

No. 29,165 (C.A. 5, Aug. 12,1970). _ 26 

Kemp v. Beasley, No. 19,782 (C.A. 8, March 17, 1970) - 20 

Lee v. Macon County Board of Education, C.A. No. 

604-E (M.D. Ala., April 3, 1970) _______._._.__. 22 

Mannings v. Board of Public Instruction of Hills- 

borough County, No. 28,643 (C.A. 5, May 11, 1970)... 20, 
25-26 

Monroe v. Board of Commissioners, 3904 U.S. 450__ 6,9, 10, 11 

Northeross v. Board of Education, 397 U.S. 232. _______ 10, 11 

Raney v. Board of Lducation, 391 US. 443___ 6,9,10,11,28 

Singleton v. Jackson Municipal Separate School 

District, 419 F. 2d 1211 reversed sub nom. Carter v. 

West Feliciana Parish School Board, 396 U.S. 290__ 5, 19 

  

  
i 

{ 

f 

  

Cases—C 

Smith 

Span 

Ed 

 



Page 

1 

2 22 

7,10, 13 

9, 13, 27 

® 27 

6 
0,11, 27 

. 17 

91 
. 16 

v 11 

le 

. 4,14 

le 
: 5 

- 11,22 

1 2,6,9, 

26, 27, 28 

27 

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AE 19 

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oy 19 

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i 26 

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0. 

L- 22 

’'s- 
PRA 90, 

25-26 

. 9,10, 11 

10,1} 

10, 11, 28 

bol 

Vv. 

  

  

  

  

III 

Cases—Continued ' 

Singleton v. Jackson Municipal Separate School District, 
No. 29,226 (C.A. 5, May 5, 1970)... . loo. 

Singleton v. Jackson Municipal Separate School Dis- 
trict, No. 29,226 (C.A. 5, Aug. 12, 1970) 

Swvith v. Texos, 331 US 128 aceon oc ug) 

Spangler and United States v. Pasadena City Board of 
Education, 31 X. Supp. 50L. cme 

Swann v. Charlotte-Mecklenburg Board of Education, 
243 F. Supp. 667, affirmed, 369 F. 2d 29__________ 

Swann v. Charlotte-Mecklenburg Board of Eaucation, 
SOF. Supp. 1209... conan 

Swann v. Charlotte-Mecklenburg Board of Education, 

No. MBIT CAN... ow oo Fe 
Swann v. Charlotte-Mecklenburg Board of Education, 

C.A. No. 1974 (W.D.N.C. Aug. 3, 1970) 
Turner v. Fouche, 396 U.S. 346... ... cu... 0. 
United States v. Georgia, C.A. No. 12,972 (N.D. Ga., 

Doo, 17,0000). pe vo oF 
United States v. Hinds County School Board, 417 F. 2d 

Unated States v. Jefferson County Board of Education, 
372 F. 2d 836 affirmed on rehearing, 380 F. 2d 385, 
certiorari denied sub nom. Caddo Parish School 

Board v. United States, 389 U.S. 840________________ 
United States v. Montgomery County Board of Educa- 

tion, 395 U.S. 225 
Valley v. Rapides Parish School Board, No. 30,099 

(C.A. 5, Aug. 25, 1970) 

  

Page 

21 

19 

11,13 

i i wa A A A 5 ok 2 11, 23, 27, 30 

20



  

  

dn the Supreme Gourt of the Wnited States 
OcroBer TERM, 1970 

Nos. 281, 349 

JAMES E. SWANN, ET AL. PETITIONERS, CROSS- 
RESPONDENTS 

v. 

CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, ET AL., 
RESPONDENTS, CROSS-PETITIONERS 

No. 436 

BirbiE MAE Davis, ET AL., PETITIONERS 

v. 

BoArp oF ScHoor, COMMISSIONERS OF MOBILE County, 
ET AL. 

ON PETITIONS FOR WRITS OF CERTIORARI TO THE UNITED 
STATES COURTS OF APPEALS FOR THE FOURTH AND FIFTH 
CIRCUITS 

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE 

STATEMENT 
‘ Charlotte-Mecklenburg. This case was com- 

menced in January 1965, and the district court there- 
after approved a free-transfer desegregation plan. 
243 F. Supp. 667 (W.D.N.C.), affirmed, 369 F. 2d 
29 (C.A. 4). The present proceedings were initiated 

(1)  



2    
in September 1968 by the plaintiffs’ motion for 

supplemental relief based on Green v. County School 

Board, 391 U.S. 430, and its companion cases. Fol- 

lowing an evidentiary hearing, the district court held 

on April 23, 1969, that the school system was not 

being operated in conformity with constitutional re- 

quirements and directed submission of a plan for 

faculty desegregation to be effective in the fall of 1969 

and for student desegregation to be implemented in 

two steps at the commencement of the 1969 and 1970 

school years (App. 285a). The school board, in sub- 

AS stance, declined to submit a plan for either faculty 

or student desegregation (App. 330a-340a). 

Further evidentiary hearings were held, and on 

June 20, 1969, the district court again directed sub- 

mission of a plan (App. 448a). The school board 

thereafter proposed a plan by which some all-black 

schools would be closed and students from those 

schools, as well as from over-crowded black schools, 

would be permitted to attend predominantly white 

schools, and otherwise the free-transfer plan would 

remain in effect; no faculty desegregation plan was 

offered (App. 480a). The district court approved 

i the board’s submission on an interim basis and di- 

rected the preparation by November 17, 1969, of a 

plan for student and faculty desegregation to be 

effective for the 1970-1971 school year. The school 

board, indicating that a plan was being prepared, 

moved for an extension of time until February 1970. 

The district court denied the motion (App. 6552), 

and the board again indicated that a plan for student 

  

  

  

desegr 

i1ses th 

segreg: 

were ¢ 

(App. 

On | 

the bc 

pointe 

tion pl 

board 

On Fe 

modific 

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819a) 

suggest 

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the Co 

March 

district 

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the dist 

rejected 

and ren 

mit the 

(App. 

June 29 

court’s 

court (A 

On re 

were sul 

 



on for 

School 

>s. Fol- 

irt held 

vas not 

nal re- 

lan for 

of 1969 

nted in 

nd 1970 

in sub- 

faculty 

and on 

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1 board 

11-black 

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schools, 

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lan was 

pproved 

and di- 

39, of a 

1 to be 

> school 

repared, 

Ty 1970. 

. 655a), 

student 

  

    
  

3 

desegregation was being prepared based on the prem- 
ises that only rezoning would be used to achieve de- 
segregation and that no school to which white students 
were assigned would be less than 60 percent white 
(App. 670a-671a). 

On December 1, 1969, the District court held that 
the board’s submission was unacceptable and ap- 
pointed an education expert to prepare a desegrega- 
tion plan (App. 698a). Plans were filed by the school 
board (App. 726a) and the court-appointed expert. 
On February 5, 1970, the court adopted, with some 
modifications, the board’s plan for secondary schools 
and the expert’s plan for elementary schools (App. 
819a) and adopted a timetable for implementation 
suggested by the board. 

Implementation of the plan was partially stayed by 
the Court of Appeals for the Fourth Circuit on 
March 5; and thereafter stayed in its entirety by the 
district court (App. 1255a). This Court declined to 
disturb the Fourth Cireuit’s order. 397 U.S. 978. On 
appeal, the court of appeals indicated approval of 
the district court’s order of February 5 insofar as it 
rejected the school hoard’s plan but vacated the order 
and remanded the case for reconsideration and to per- 
mit the board to submit a new elementary school plan 
(App. 1262a). This Court granted certiorari on 
June 29, 1970, directing reinstatement of the district 
court’s order pending further proceedings in that 
court (App. 1320a; 399 U.S. 926). 

On remand, two new plans for elementary schools 
were submitted: a plan prepared by the United States 

  



   

Department of Health, Education, and Welfare based 

on contiguous grouping and zoning of schools, and a 

plan prepared by four members of the nine-member 

school board achieving substantially the same results 

as the court-expert plan but requiring somewhat less 

transportation. A majority of the school board de- 

clined to amend its proposal. After a lengthy eviden- 

tiary hearing, the district court directed the board to 

adopt the minority board plan or to submit a new, 

equally effective plan; the court ordered that the 

court-expert plan would remain in effect in the event 

that the school board declined to adopt a new plan. 

@: August 7 the board so declined. 
2. Mobile County. This case was initiated by private 

plaintiffs in 1963, and the United States intervened 

as a party-plaintiff in 1967. The history of the litiga- 

tion is recorded in a lengthy series of decisions cited 

on page two of the Memorandum for the United 

States on the petition for a writ of certiorari. 

In June 1969 the Court of Appeals for the Fifth 

Circuit reversed the district court’s approval of a de- 

segregation plan combining elements of freedom of 

choice, geographic zoning, and minority-to-majority 

transfers. 414 KF. 2d 609. The district court was di- 

rected to order the school board to engage the assist- 

@.. of the United States Department of Health, Jdu- 

cation, and Welfare in preparing a new desegregation 

plan for the entire system. HEW developed a two- 

step desegregation plan, reaching all rural schools and 

the schools in the western portion of metropolitan 

Mobile in 1969 and reaching the eastern urban schools   

  

  

  

m 197 

tially t 

directe: 

schools. 

v. Jack 

2d 121; 

in part 

School 

On L 

board 

Depart 

separat 

On Jan 

modific: 

geogray 

States : 

On J 

adoptin 

by the ] 

tioned f 

‘has sin 

reprinte 

randum 

Commas 

Aug. 28, 

Sever: 

minate 

cases. 

405-8¢ 

 



based 

and a 

ember 

results 

at less 

rd de- 

viden- 

ard to 

L new, 

it the 

event 

plan. 

rivate 

vened 

litiga- 

y cited 

Tnited 

Fifth 

a de- 

om of 

jority 

as di- 

assist- 

, du- 

ration 

1, two- 

Is and 

volitan 

chools 

  

  

  

  

R- 

3, 

in 1970. The district court adopted a plan substan- 
tially the same as the first step of the HEW plan and 
directed submission of revised plans for the eastern 
schools. That decision was affirmed sud nom. Singleton 
v. Jackson Municipal Separate School District, 419 TF. 
2d 1211 (C.A. 5) (en bane) (per curiam), reversed 
in part sub nom. Carter v. West Feliciana Parish 
School Board, 396 U.S. 290 (per curiam). 

On December 1, 1969, plans were filed by the school 
board and HEW. At the district court’s request, the 
Department of Justice filed on January 27, 1970, a 
separate proposal for implementation pendente lite. 
On January 31 the district court adopted, with some 
modification, the school hoard’s submission based on 
geographic zoning. The plaintiffs and the United 
States appealed. 

On June 8, 1970, the court of appeals reversed, 
adopting with some modifications the plan submitted 
by the Department of Justice, and the plaintiffs peti- 
tioned for a writ of certiorari. The court of appeals 

‘has since twice amended its mandate (see decision 
reprinted in appendix to the government’s memo- 
randum on the petition and Davis v. Board of School 
Commissioners of Mobile County, No. 29,332 (C.A. 5, 
Aug. 28, 1970)). 

ARGUMENT 

INTRODUCTION AND SUMMARY 

Several threshold considerations may serve to illu- 
minate the issues in these two school desegregation 
cases. 

405-880—70——2



   6 

First, these are school districts which contain large 

metropolitan areas. While this Court has dealt with 

such districts in the past, it has not had occasion since 

the Green trilogy * and Alexander v. Holmes County 

Board of Education, 396 U.S. 19, to define with par- 

ticularity the obligations of large metropolitan school 

systems with respect to pupil assignment. Green and 

Alexander answered many of the questions as to the 

obligations of rural and small town systems, and the 

uestion now is the extent to which the remedial prin- 

® developed in those cases of classic dualism apply 

to large metropolitan systems. In this sense, these 

are cases of first impression. 

Second, both of these school systems are character- 

ized by residential patterns of racial separation as 

well as a history of racial separation in the public 

schools, The two types of separation are interrelated, 
  

but the extent of the relationship is at best ‘specula- : 

“ive. (These ca cases might thus involve the questions” 

whether school boards can retain a “neighborhood 

school” assignment policy where the result is to oper- 

ate some schools that are racially identifiable at least 

the extent reflected by the racial composition of the 

udent bodies, whether the Fourteenth Amendment 

requires school boards to achieve some mathematical 

degree of integration regardless of housing patterns, 

and the extent to which the burdens of alleviating 

racial isolation are to be borne by school boards and 

1 Green v. County School Board, 391 U.S. 430; Raney v. 

Board of Education, 391 U.S. 443; Monroe v. Board of Com- 

missioners, 391 U.S. 450. 

  

school el 

governme 

power to 

Third, 

previousl 

some dua 

dual trar 

are, there 

school sy 

tary syste 

unitary s 

what ren 

districts 

ments? A 

a method 

the scope 

priate rer 

These « 

dies and - 

school sys: 

_ rights anc 

balance b 

a conflict 

dents an : 
pp ATT A 

“of” other 1 

ance, or if 
    

  
would jus 

segregatio 

goals is n 

nanced, b; 

right of ¢ 

 



large 

with 

since 

yunty 

par- 

chool 

1 and 

o the 

d the 

prin- 

pply 
these 

reter- 

mn as 

yublic 

lated, 

>eula- 

stions 

rhood 

oper- 

least 

Hf the 

lment 

atical 

Lerns, 

ating 

5 and 

ney Vv. 

Com- 

  

    
  

7 

school children rather than being shared by other 

governmental institutions and agencies having the 

power to affect such isolation. 

Third, there is evidence that these school hoards 
previously maintained aspects of dualism—such as 

some dual, overlapping zones, faculty segregation, and 

dual transportation systems. If these school districts 

are, therefore, properly regarded as traditionally dual 

school systems, whose obligation is to convert to uni- 

tary systems, the question remains: what constitutes a 

unitary system? Stating this question another way: 

what remedial adjustments would bring these school 

districts into compliance with constitutional require- 

ments? And, when school boards have failed to select 

a method of compliance, a further question arises as to 
the scope of judicial discretion in ordering appro- 

priate remedial adjustments. 

These questions relate hoth to rights and to reme- 
dies and raise yet another question: In desegregating 

school systems is there a conflict between individual 
rights and public need, and, if so, 1s there some proper 
balance between them ¢ We think there could be such 

a conflict if the Fourteenth Amendment, granted stu- 
dents an absolute right to attend school with children 

i A ATT on 1 rr a TN RR ba fo 

or other races, 1.e. , required some form of racial bal- 
ance, or if there were an unyielding public need which 
would justify the wholesale maintenance of racial 
segregation; but we think the first of these conflicting 
goals is not prescribed, and the second not counte- 
nanced, by the Constitution. Rather, we think the 
right of school children articulated in Brown is to 

  



8    
attend school in a system where the school board exer- 

cises its decision-making powers so as to operate a non- 

racial unitary school system free from discrimination, 

and that where this has not been done there is a viola- 

tion of the rights of such children requiring remedial 

adjustments which give proper weight to that which 

is feasible and that which is just. If choices exist 
  

which may have a racial impact, they cannot be exer- 

cised in a racially neutral manner where to do so no 

to perpetuate segregation. Thus, the right and the 
Se tints 

medy are interrelated. 

This interrelationship is most easily perceived in 

rural systems, such as New Kent County, Virginia, 

where the violation was the maintenance of two 

twelve-grade schools, one nearly all white and one 

black, cach serving the entire system. Pairing or 

zoning the two schools were remedies that flowed 

naturally from this violation. But where scores of 

schools serve the same grades, some attended largely 

by students of one race, the remedy is not self- 

evident. 

The controversy in these cases is over the standards 

eo be applied in fashioning remedies for state-imposed 

egregation in large metropolitan areas. We believe 

that an appropriate standard should give proper 

attention to a number of circumstances, such as the 

size of the school district, the number of schools, the 

relative distances between schools, the ease or hard- 

ships for the school children involved, the educational 

soundness ef the assignment plan, and the resources 

of the school district. Chr 

  

  
  

  

All tl 

count bj 

ment of 

That Of 

school d 

have an 

cisions 

but are f 

benefits { 

neighbor: 

‘this prine 

expandin 

or cluste 

principle 

courts an 

This ( 

Board, 3 

the disms 

tems ten 

multiface 

quire tim 

vd. at 437, 

ating stat 

clearly ec 

whatever 

unitary s; 

be elimin. 

Raney v. 

Monroe v. 

460. Last ' 

every sche 

tems at o 

 



exer- 

1 NON- 

ation, 

viola- 

nedial 

which 

exist 

emer- 
, 50 1S 

d the 

ed in 

"ginia, 

fF two 

d one 

ng or 

Howed 

res of 

argely 

. self- 

1dards 

posed 

yelieve 

roper 

as the 

Is, the 

hard- 

ational 

ources 

  

    

J 

All these circumstances have been taken into ae- 

count by HEW’s Office of Education in the develop- 

ment of desegregation plans for urban school systems. 
That Office has followed the general principle that 
school districts which are under a duty to reorganize 
have an obligation to make all reorganizational de- 
cisions so as to eliminate the vestiges of dualism, 
but are free at the same time to take into account the 
benefits to be derived from preserving the traditional 
nei ighbor hood method of school assignment. In applying 

this principle, the Office has employed the techniques of 

expanding contiguous geographic zones and pairing 
or clustering schools having contiguous zones. This 
principle has found general acceptance in the lower 
courts and should be adopted by this Court. 

This Court observed in Green v. County School 
Board, 391 U.S. 430, that “Brown IT was a call for 
the dismantling of well-entrenched dual [school] sys- 
tems tempered by an awareness that complex and 
multifaceted problems would arise which would re- 
quire time and flexibility for a suceessful resolution,” 
vd. at 437, and held that “[s]chool boards * * * then oper- 
ating state-compelled dual systems were nevertheless 
clearly charged with the affirmative duty to take 
whatever steps might be necessary to convert to a 
unitary system in which racial discrimination would 
be eliminated root and branch.” Id. at 437-438; see 
Raney v. Board of Education, 391 U.S. 443, 447-448; 
Monroe v. Board of Commissioners, 391 U.S. 450, 458- 
460. Last Term this Court held that “the obligation of 
every school district is to terminate dual school Sys- 
tems at once and to operate now and hereafter only  



    

1 

unitary schools.” Alexander v. Holmes County Board 

of Education, 396 U.S. 19, 20; see Carter v. West 

Feliciana Parish School Board, 396 U.S. 290; North- 

cross v. Board of Education, 397 U.S. 232. 

These decisions clearly contemplated the reorgani- 

zation of racially segregated, dual school systems. But, 

like earlier school desegregation decisions of this 

Court, they arose in the context of rural, classically 

dual systems or the perpetuation of the most egregious 

forms of racially dual operation. New Kent County 

operated two schools, one attended solely by Negroes 

nd the other almost exclusively by whites, offering 

exactly the same grades and serving exactly the same 

attendance area (coextensive with the entire county), 

while both whites and blacks resided throughout the 

district. Similarly, in Raney “[t]here [were] no at- 

tendance zones, each school complex providing any 

necessary bus transportation for its respective pupils.” 

391 U.S. at 445. In Monroe v. Board of Commission- 

ers, supra, involving a small city school district in 

which many residential areas were racially segregated, 

a zoning plan had “assigned students to * * * schools 

in a way that was capable of producing meaningful 

desegregation,” 391 U.S. at 458, but a free-transfer 

[| N. superimposed on geographic zoning had ‘‘per- 

mitted the ‘considerable number’ of white or Negro 

students * * * to return, at the implicit invitation of 

the Board, to the comfortable security of the old, es- 

tablished discriminatory pattern.” Id. at 458-4509. 

Hence, while this Court has dealt with large urban 

school districts in the past, including Topeka, Kansas, 

Rrown v. Board of Education, 347 U.S. 483; Little 

& 

  

  

Rock, A: 

Tenness 

683; Ri 

382 U.S 

Montgor 

225; ans 

of Fduc 

an oceas 

constitu 

signmen 

Green-It 

ated wit 

those ca: 

held to I 

because 

perpetus 

“[t]he ¢ 

public 

County . 

5), affirr 

bane), c 

School F 

In ace 

Court’s 

Holmes 

Carter v. 

that dus 

nearly a 

are dese 

plans bas: 

restructe 

 



Board 

West 

Jorth- 

rgani- 

ut, 

* this 

sically 

gious 

ounty 

2gTO0es 

fering 

Same 

anty), 

ut the 

no at- 

g any 
1pils.” 

§SSLON- 

"ict In 

cated, 

ichools 

ingful 

ansfer 
‘“‘per- 

Negro 

tion of 

ld, es- 

9. 

urban 

.ansas, 

Little 

    

  

A A 

Rock, Arkansas, Cooper v. Aaron, 358 U.S. 1; Knoxville, - 

Tennessee, Goss v. Board of Education, 373 U.S. 

683; Richmond, Virginia, Bradley v. School Board, 

382 U.S. 102; Montgomery, Alabama, United States v. 

Montgomery County Board of Education, 395 U.S. 

225; and Memphis, Tennessee, Northcross v. Board 
of Education, 397 U.S. 232, the Court has not had 

an occasion to define with any degree of finality the 

constitutional obligations—particularly the pupil as- 

signment obligations—of such school systems. The 

Green-Roney-Monroe trilogy presented issues associ- 

ated with traditional dualism. In the circumstances of 

those cases, freedom of choice and free transfer were 
held to be unacceptable methods of student assignment 

because they maintained racial segregation by tacitly 

perpetuating dual, overlapping attendance areas, 

“[t]he central vice in a formerly de jure segregated 

public school system,” United States v. Jefferson 

County Board of Education, 372 F. 2d 836, 867 (C.A. 
5), affirmed on rehearing, 380 F. 2d 385 (C.A. 5) (en 
banc), certiorari denied sub nom. Caddo Parish 

School Board v. United States, 389 U.S. 840. 

In accordance with the mandate of Green and this 

Court’s definitive announcement in Alexander v. 
Holmes County Board of Education, supra, and 

Carter v. West Feliciana Parish School Board, supra, 

that dual systems must be converted ‘‘at once,” 
nearly all of the traditionally dual school districts 
are desegregating by implementing desegregation 

plans based on compact geographic zones and grade 
restructuring, through either litigation or voluntary 

   



   agreements with the United States Department of 
Health, Education, and Welfare.’ 

Most of these are rural systems which, by the use 

of contiguous zoning and contiguous pairing, have con- 

verted to systems “without a ‘white’ school and a 

‘Negro’ school, but just schools.” Green, 391 U.S. at 

442. In urban school systems like Mobile and Char- 

lotte, however, the constructive use of contiguous zon- 

ing and pairing places biracial student populations in 

most, but not all, schools. This distinction was well 

stated by Judge Butzner in the Charlotte case below: 

All schools in towns, small cities, and rural 
w areas generally can be integrated by pairing, 

zoning, clustering, or consolidating schools and 

transporting pupils. Some cities, in contrast, 

have black ghettos so large that integration of 

every school is an improbable, if not an un- 
attainable, goal. [ App. 1267a-1268a.] 

In this respect, then, these cases present issues of 

first impression for this Court and may require the 

Court to distinguish between rural and metropolitan 

school districts. 

I. THE CHARLOTTE AND MOBILE SCHOOL SYSTEMS HAVE 

FOLLOWED POLICIES AND PRACTICES WHICH PERPETUATE 

¢ DUAL SYSTEM 

aclal dualism in large urban systems may be found 

not only in overlapping attendance areas but also in 

2 See Appendix, infra, for a summary of the status of school 
districts in eleven Southern states, which brings up to date the 
table in the Appendix to the government’s Supplemental 
Memorandum. filed in this Court in Alexander v. Holmes 
County Board of Education, No. 632, October Term, 1969.   

the orga 

ance of 

distortec 

mandere 

ious oth 

tion of 

patterns 

Neithe 

quires 1: 

and inso 

a part 1 

boards’ j 

ingful o 

decision 

and day-1 

all of tho: 

the exten 

criminati 

U.S. 483. 

294, 300: 

of Educa 

v. Texas, 

Site sel 

aspects o: 

bilities in 

dential sc 

substitute 

lotte-Mech 

a TY 

405-880- 

 



t of 

use 

con- 

id a 

3 at 

har- 

7,01- 

1S in 

well 

ow: 

ural 

ing, 

and 

~ast, 

1 of 

un- 

"AVE 

ATE 

nnd 

) 1n 

hool 

_ the 

ntal 

"mes 

969. 

  

e
i
 

  
| | 
| 
| 
| 
| 

{ 

| 

{ 
] 

13 

the organizational decisions of the system in further- 
ance of racial separation. It may be manifested in 
distorted grade structures, outsized schools, gerry- 
mandered zones, curriculum manipulation, and var- 
ious other devices for accommodating the organiza- 
tion of the system to fluctuating racial residential 
patterns. 

Neither North Carolina nor Alabama presently re- 
quires racial segregation in public education by law; 
and insofar as an official policy of segregation plays 
a part in defining the Charlotte and Mobile school 
boards’ present constitutional obligation, it is mean- 
ingful only to the extent that it is manifested in the 
decision-making (involving hoth long-range planning 
and day-to-day operations) of the boards. Accordingly, 
all of those decisions must be considered in determining 
the extent to which a school district has engaged in dis- 
crimination contrary to Brown of Education, 347 
U.S. 483. See Brown v. Board of Education, 349 U.S. 
294, 300-301; United States v. Jefferson County Board 
of Liducation, 372 F. 2d 836 (C.A. 5). See, also, Smith 
Vv. Texas, 311 U.S. 128, 132. 

Site selection and school construction are important 
aspects of a school board’s decision-making responsi- 
bilities in school districts characterized by racial resi- 
dential segregation, because they have heen used as 
substitutes for dual zoning. The records in both Char- 

   

  

[lotte-Mecklenburg and Mobile suggest that the school   

boards have consciously selected building sites and 
    

EA ym ee npn 
    

405-880—70——3 

—



   14 

constructed schools in a manner designed to perpet- 

“iate—separate schools for whites and blacks. Thus in 
“1963, when the Mobile board sought a stay of a Fifth 

Circuit order directing it to commence admitting 

Negro students to white schools under the Alabama 

pupil-placement laws, the board argued that 

desegregation would “seriously delay and pos- 

sibly completely stop” the Board’s building pro- 

gram, ‘particularly the improvement and 

completion of sufficient colored schools which 

are so urgently needed.” In recent years, more 

» than 50% of its building funds, the Board 

pointed out to the parents and guardians of its 

colored pupils, had been spent to “build and 

improve colored schools,” and of eleven million 

dollars that would be spent in 1963, over seven 

million would be devoted to “colored schools.” 

Board of School Commissioners v. Davis, 11 L. Ed. 2d 

26, 28 (Black, J., on application for a stay). As Mr. 

Justice Black then observed, “It is quite apparent 

from these statements that Mobile County’s program 

for the future of its publie school system ‘lends itself 

to perpetuation of segregation,” a consequence which 

the Court recently had occasion to condemn as unlaw- 

Jul.” Id. at 28-29. This policy continued until at least 

June of 1969. See Davis v. Board of School Com- 

missioners of Mobile County, 414 F. 2d 609 (C.A. 5). 

Similarly, in Charlotte-Mecklenburg the district 

court found that the “[1]ocation of schools in Char- 

lotte has followed the local pattern of residential 

development, including its de facto patterns of segre- 

  

  

gation. 

schools 

black 

comple 

and pr 

App. 3 

Othe 

cisions 

progra 

on the 

separa 

the siz 

serve. 

examp 

virtual 

dential 

schools 

schools 

for Pe 

same 1 

isfacto 

school 

twelve 

served 

and su 

13 n.¢ 

tains ¢ 

  

3 That 

the nun 

to be sei 

 



rpet- 

us in” 

Fifth 

itting 

bama 

| pos- 
ry pro- 

and 

which 

more 

Board 

of its 
1 and 

illion 

seven 

00ls.” 

id. 2d 

s Mr. 

yarent 

gram 

itself 

which 

mlaw- 

bt least 

Com- 

A. 5). 

istrict 

Char- 

lential 

segre- 

  

I 
| 

15 

gation. With a few significant exceptions * *. * the 
Rea £2 bi Sa 

schools” which have been built recently have been 

black or almost completely black, or white or almost 

completely_white, and _this_ probability was apparent 

and predictable when the schools were built.” Charlotte 

App. 305a; see id. at 456a—457a. 

Other necessary educational and administrative de- 

cisions must be coordinated with a school-construetion 

program; and the record in Mobile is especially clear 

on the potential effects of those decisions on racial 

separation. The capacities of schools can be based on 

the size of the racially identifiable areas they are to 

serve. Two" junior high schools were constructed, for 

example, to serve relatively small white neighborhoods 

virtually surrounded by predominantly Negro resi- 

dential areas; accordingly, the capacities of those 

schools were far smaller than the capacities of other 

schools in the system serving the same grades. Brief 

for Petitioners in Mobile, Appendix at 15, n. 24. The 

same is true of grade structures. No reason can sat- 

isfactorily explain, for instance, why one all-Negro 

school was the only school in the city to offer all 

twelve grades except that the Negro area to be 

served by the school was relatively small, compact, 

and surrounded by white residential areas.’ Id. at 4, 

15 n. 24; see, also, td. at 10. The Mobile record con- 

tains evidence of numerous instances in which port- 

3 That school has now been fully desegregated by reducing 
the number of grades and expanding the neighborhood zone 
to be served.



16    
able classrooms were used at schools serving one race 

while nearby schools offering the same grades but 

serving another race operated under capacity. Id. 

at 10-11; sce, also, #d. at 64-67. The location of at- 

tendance-zone boundaries (including the use of noncon- 

tiguous zones) has also been utilized in Mobile to pro- 

duce segregation. Id. at 7-9. 

We submit, therefore, that the constitutional viola- 

tions which have occurred in these two cases are the 

products of a process of decision-making in which the 

ate chose, in spite of the availability of feasible 

alternatives, courses which perpetuated the racially 

segregated dual systems. In light of the fact that in 

many metropolitan school systems ‘‘black residential 

areas [may be] so large that not all schools can be 

integrated by using reasonable means,” Swann V. 

Charlotte-Mecklenburg Board of Education, No. 14,617 

(C.A. 4) (App. 1267a), 1t is appropriate, therefore, to 

look to that decision-making process as ‘the focal point of 

a proper remedy. Accordingly, an appropriate remedy 

is to require that the governmental decisions affecting 

racial segregation be so made and implemented, when 

eo. alternatives are available, as to disestablish the 

1al system and eliminate its vestiges. In this sense, 

the remedy is a dynamic one, cf. Clark v. Board of 

Education of Lattle Rock School District, 426 F. 2d 

1035 (C.A. 8), and not a static one. And, as we shall 

now show, it does not require, as an a prior: constitu- 

tional standard, racial balance or integration of every 

all-white, all-Negro, or predominantly Negro school. 

  

II. THE 

A M!/ 

SCHO! 

ALL-D 

The 

burg a 

constit 

tifiabili 

this vie 

cially i 

jority 

It wou 

the pe 

that th 

1S as nq 

dents 1 

either 

ings of 

spect te 

accepts 

dial dv 

is not 

obligat 

gard t 

Fducai 

(E.D.2 

+ Tt 3s, 
ment of 

scribe a 

ship of 

Cassell 

 



= race 

5 but 

Id. 

Hf at- 

neon- 

) pro- 

viola- 

~e the 

=h the 

nsible 

cially 

1at in 

ential 

an be 

nn Vv. 

14,617 

ire, to 

int of 

medy 

seting 

when 

sh the 

sense, 

rd of 

F.2d 

» shall 

1stitu- 

every 

Hol. 

  

IT. THE FOURTEENTH AMENDMENT DOES NOT REQUIRE, AS 

A MATTER OF LAW, RACIAL BALANCE IN ALL PUBLIC 

SCHOOLS OR INTEGRATION OF EVERY ALL-WHITE OR 

ALL-NEGRO SCHOOL 

The plaintiffs-petitioners in both Charlotte-Mecklen- 

burg and Mobile argue that school boards have a 

constitutional obligation to eradicate the ‘‘racial iden- 

tifiability’’ of all schools within their jurisdiction. In 

this view a predominantly Negro school would be ‘‘ra- 

cially identifiable’” in a school district having a ma- 

jority of white students such as Charlotte and Mobile. 

It would appear that all school boards, according to 

the petitioners’ theory, must be required to ensure 

that the ratio of white to black students in each school 

is as near as possible to the ratio of white to black stu- 

dents in the system as a whole. We do not agree that 

either general constitutional principles or the hold- 

ings of this Court or the courts of appeals with re- 

spect to disestablishment of dual school systems compel 

acceptance of this formulation of school boards’ reme- 

dial duty. In our view, ‘‘[hJow far that duty extends 

is not answerable perhaps in terms of an unqualified 

obligation to integrate public education without re- 

gard to circumstance * * *.”’ Branche v. Board of 

Education of Hempstead, 204 TF. Supp. 150, 153 

(E.D.N.Y.). 

+ Tt is, of course, clear that the Fourteenth Amendment's require- 
ment of due process and equal protection does not, by itself, pre- 
scribe any particular racial (or other) admixture in the member- 
ship of individual institutional groups, such as a particular jury. 
Cassell v. Texas, 339 U.S. 282. 

  



   18 

As the court of appeals stated in the Charlotte case, 

“if a school board makes every reasonable effort to 

integrate the pupils under its control, an intractable 

remnant of segregation * * * should not void an 

otherwise exemplary plan for the creation of a ‘uni- 

tary school system’’”” (App. 1268a). Neither, on the 

other hand, do the decisions support the use of racial 

quotas, as in the Charlotte-Mecklenburg school board’s 

plan, as a limitation on the extent of a school board’s 

remedial obligation. 

Federal courts have made basically three uses of 

Q. expressions as “racially identifiable schools,” 
8 bf ‘““all-Negro schools,” and ‘‘racial balance,”” none of 

which supports the near-absolute standard suggested 

by the plaintiffs-petitioners. The courts have used 

these expressions as a characterization of the state’s 

holding out a classically dual school system in tacit 

perpetuation of legally required segregation, as an 

analytical starting point, and as a convenient refer- 

ence to a remedial standard requiring the comparison 

of available alternatives. 

This Court said in Green that an acceptable de- 

segregation plan must “promise realistically to con- 

ert promptly to a system without a ‘white’ school 

and a ‘Negro’ school, but just schools.”” 391 U.S. at 

442. But that remark was made in the context of the 

state’s holding out one school for whites and another 

for blacks serving the same attendance area, just as 

it had done when racial segregation was enforced by 

law. In holding that the state could not maintain such 

a system, even though it had the appearance of racial 

- 

  

neutral 

based « 

that th 

or ‘‘rac 

effectin 

see 391 

actly t 

It was 

freedor 

~ dual af 

: moribu 

was ur 

See, e.( 

Hall v. 

801 (C 

States 

(CA. 

v. Hols 

(revers 

the Ba 

v. Jacl 

F.2d 1 

The 

standa 

showin, 

for the 

schools 

ton V. 

No. 29, 

City of 

 



> case, 

prt to 

ctable 

id an 

‘uni- 

m the 

racial 

yard’s 

pard’s 

ses of 

ools,”’ 

ne of 

rested 

used 

state’s 

tacit 

as an 

refer- 

rison 

le de- 

) con- 

school 

SS. at 

of the 

10ther 

ust as 

ed by 

1 such 

racial 

  

19 

neutrality in the sense that student assignments were 

based on free choice, this Court might well have said 

is the schools of New Kent County must be merged 

or “racially balanced,” for the simplest techniques of 

a desegregation (such as zoning and pairing, 

see 391 U.S. at 442 n. 6) would necessarily promise ex- 

actly that result in the circumstances of that case. 

It was in the same context, namely, the failure of 

freedom of choice to alter significantly the racially 

dual attendance patterns of the past, that the Court 

a f Appeals for the Fifth Circuit adopted the rule, now 

moribund, that an existing student- assignment plan 

was unacceptable if it retained an all-Negro school. 

See, e.g., Adams v. Mathews, 403 F. 2d 181 (CA. 5); 

Hall v. St. Helena Parish School Board, 417 F. 2d 

801 (C.A. 5), certiorari denied, 396 U.S. 904; United 

States v. Hinds County School Board, 417 IF. 2d 852 

(C.A. 5), related order reversed sub nom. Alexander 

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

(reversing as to timing). But see Harris v. St. John 

the Baptist Parish School Board, sub nom. Singleton 

v. Jackson Municipal Separate School District, 419 

F. 2d 1211, 1221 (C.A. 5) (en banc). 

The Fifth Circuit, although no longer relying on a 

standard of no all-Negro schools, has required a 

showing and findings of the specific “reasons, if any, 

for the continuation of any all Negro or all white 

schools” under proposed desegregation plans. Single- 

ton v. Jackson Municipal Separate School District, 

No. 29,226, at 14 (C.A. 5, May 5, 1970) ; Andrews v. 

City of Monroe, 425 F. 2d 1017, 1021 (C.A. 5). This



   20 

requirement, obviously, is an analytical starting point 

designed to inform the court of appeals of both the 

extent to which racial concentration remains in a school 

district and the feasibility of reducing concentration by 

alternative means. For numerous recent decisions of 

that court, including the decision in Mobile, have ap- 

proved plans even though all-Negro schools remained. 

See, e.g., Bradley v. Board of Public Instruction of 

Pinellas County, No. 28,639 (C.A. 5), modified on 

rehearing (C.A. 5, July 28, 1970); Valley v. Rapides 

Parish School Board, No. 30,099 (C.A. 5, Aug. 25, 

970) ; Mannings v. Board of Public Instruction of 

Hillsborough County, No. 28,643 (C.A. 5, May 11, 

1970). Similarly, the Court of Appeals for the Fighth 

Circuit observed with respect to racial balance: 

We do not rule that precise racial percentages 

across the District at the respective elementary, 

junior high, and high school levels are as yet 

constitutionally required. * * * We certainly 

can conceive of a fully desegregated system 

where percentages do vary from school to school 

and in which even one school might have a black 

majority and another a white majority but 
still, when all factors are fairly and unemotion- 

ally considered, the system is ‘‘unitized” within 

w the Supreme Court’s Alexander requirement. 

That happy day may not yet be upon us and 

until it arrives percentages may be more sig- 

nificant than they eventually deserve to be. 

Kemp v. Beasley, No. 19,782, at 14-15 (C.A. 8, 

March 17, 1970) (El Dorado, Arkansas) ; see Swann Vv. 

  

Charlo 

Supp. 

States 

1969) 

in ligl 

district 

Fina 

schools 
remedi 

“natives 

could 1 
© Unated 

unrepo 

report 

articul 

the un 

tioners 

Meckle 

the ple 

has no 

is requ 

schools 

partic 

rect ir 

Swann 

C.A. M 

id. (IF 

medial 

and fir 

more | 

 



point 

-h the 

school 

on by 

ms of 

ve ap- 

ained. 

“on of 

ed on 

wpides 

g. 25, 

“on of 

3y 11, 

Nighth 

1tages 

ntary, 

as yet 
tainly 

ystem 

school 

black 

y but 
,otion- 

within 

xment. 

1s and 

e Sig- 

e. 

i A . 8, 

ann v. 

Charlotte-Mecklenburg Board of Education, 306 KF. 

Supp. 1299, 1312 (W.D.N.C.) (App. 710a); United 

States v. Georgia, C.A. No. 12972 (N.D. Ga., Dec. 17, 

1969) (and subsequent orders amending the formula 

in light of the circumstances of individual school 

districts). 

_ Finally, tl the standard of no predominantly Negro 

schools has been used as a means of translating into 

remedial terms a finding, in view of available alter- 

“natives, of “the exteiit to which racial concentr ation 

could feasibly be eliminated. See, e.g., Spangler and 

“United States v. Pasadena City Board of Education, 

unreported order entered on findings and conclusions 

reported at 311 F. Supp. 501 (C.D. Calif.). Such an 

articulation of remedial obligations cannot be read in 

the unyielding terms suggested by the plaintiffs-peti- 

tioners. Indeed, the district court in Charlotie- 

Mecklenburg, while approving the plan supported by 

the plaintiffs, was careful to point out, “This court 

has not ruled, and does not rule that ‘racial balance’ 

is required under the Constitution; nor that all black 

schools ‘in all cities are unlawful; * * * nor that the 

particular order entered in this case would be cor- 

rect in other circumstances not before this court.” 

Swann v. Charlotte-Mecklenburg Board of Education, 

C.A. No. 1974, at 12 (W.D.N.C,, Aug. 3, 1970); see 

td. (Feb. 5, 1970) (App. 822a). Insofar as such re- 

medial expressions are made on the basis of a record 

and findings on “the availability to the board of other 

more promising courses of action,’ 391 U.S. 439, they  



  

    
22 

represent no departure in constitutional principle 

from Green, which directed district courts to assess 

proposed plans “in light of any alternatives which 

may be shown as feasible and more promising in their 

effectiveness.”’ Ibid. 

The desegregation plan supported by the Charlotte- 

Mecklenburg school board is based on the premise 

that “‘[n]o school district to which white students are 

assigned should have less than 60 per cent white 

student population * * *.”” App. 671a. In the factual cir- 

umstances of the Charlotte school system, this rule, 

@Q.. coupled with the board’s declining to consider 

any technique of desegregation except geographic 

zoning, inevitably constitutes a limitation on the ex- 

tent of desegregation to be achieved: Whenever an 

all-Negro school could not be so zoned as to make it 

at least sixty percent white, this limitation would re- 

quire that it remain all-Negro. As the district court 

observed, such a use of a ‘‘ ‘60-40’ ratio is a one-way 

street,” App. T01a, and the court of appeals properly 

rejected it. App. 1276a. See Lee Vv. Macon County 

Board of Education, C.A. No. 604-E (M.D. Ala, 

April 3, 1970) (Conecuh County) ; Brewer v. School 

@ of City of Norfolk, No. 14,544 (C.A. 4, June 22, 

1970), reversing 302 F. Supp. 18, 308 F. Supp. 1274 

(E.D. Va.). No use of racial quotas “of which racial 

segregation is the inevitable consequence may stand 

under the Fourteenth Amendment.” Goss v. Board 

of Education, 373 U.S. 683, 689. 

     

      

     

  

Il. THI 

QUIR 
TEMS 

this fie 

the ba 

of Hn 

school 

a req 

in all 

of no 

inatec 

“syste 

been ] 

at 43 

can, 3 

of a- 

the 

of me 

police: 

long 

objec 

439), 

 



ciple 

ssess 

= hich 

—their 

Sotte- 

—mise 

—s are 

=vhite 

= eir- 

rule, 

sider 

—aphic 

ne ex- 

=cI' an 

=ke it 

1d re- 

court 

_e-way 

Operly 

"ounty 

Ala., 

School 

ane 22, 

». 1274 

racial 

stand 

Board 

III. THE CHARLOTTE AND MOBILE SCHOOL BOARDS ARE RE- 

QUIRED, IN CONVERTING FROM DUAL TO UNITARY SYS- 

TEMS, TO MAKE ORGANIZATIONAL AND ASSIGNMENT 

ADJUSTMENTS TO ELIMINATE THE VESTIGES OF THE DUAL 

SYSTEM BUT NOT TO ACHIEVE ANY PARTICULAR RACIAL 

BALANCE OR RATIOS 

L. Clarification of the proper remedial standards in 

this field thus begins, in our view, with recognition of 

the basic principle that the constitutional requirement 

of “a completely unified, unitary, nondiseriminatory 

school system” (Montgomery, 399 U.S. at 235) is not 

a requirement that racial balance need be achieved 

in all schools within the system or that all instances 

of non-diseriminatory racial isolation need be elim- 

inated. It is, instead, a requirement of a school 

“system in which racial discrimination * * * [has 

been] eliminated root and branch” (Green, 391 U.S. 

at 438). It follows that the constitutional objective 

can, in most situations, be achieved by means of any 

of a variety of methods of pupil assignment, and that 

the choice of the particular method, or combination 

of methods, to be employed is a matter of educational 

policy within the discretion of the school board—so 

long as that choice accomplishes the constitutional 

objective. As this Court said in Green (391 U.S. at 

439): 

There is no universal answer to complex prob- 

lems of desegregation; there is obviously no one 

plan that will do the job in every case. The mat- 

ter must be assessed in light of the circum-  



24 

stances present and the options available in each 

instance. It is incumbent upon the school board to 

establish that its proposed plan promises mean- 
ingful and immediate progress toward dis- 

establishing state-imposed segregation. * * * 

  

Indeed, the Court in Green specifically declined to 

“hold that ‘freedom of choice’ can have no place in 

such a plan,” or ‘that a ‘freedom-of-choice’ plan might 

of itself be unconstitutional’ (391 U.S. at 439), even 

though it noted that ‘‘the general experience under 

‘freedom of choice’ to date has been such as to indicate 

s ineffectiveness as a tool of desegregation’ (391 U.S. 

440) and held that in the three cases before it the 

freedom-of-choice plans were constitutionally inade- 

quate. And the Court specifically indicated in Green 

that either geographic zoning or pairing (consolida- 

tion) of the two schools in the rural district involved in 

that case would be an acceptable method of pupil as- 

signment (391 U.S. at 442 n. 6). 

We submit that a system of pupil assignment on the 

g basis of contiguous geographic. (residential) zones— 

the “neighborhood” school system, which is the most 

4 amiliar and traditional method of pupil assignment’ 

e. throughout the Nation—is constitutionally 

eptable i in desegregating g urban’ school systems also. 

We recognize, however, that where dual systems have 

previously been maintained, school buildings and fa- 

cilities will frequently be located on sites which would 

not have been chosen had the system been operated on 

a unitary basis, and that there will generally be avail- 

able to school boards more than one choice of pupil 

  

assigr 

neigh 

In 

of th 

a due 

depen 

nique 

1ImMpos 

(see 

schoo 

All 

appre 

have 

gletor 

No. 2 

of P 

(C.A 

 



each 

1rd to 

nean- 

dis- 
“ ¥ 

ed to 

ce In 

night 

even 

imder 

icate 

U.S. 

t the 

1ade- 

Freen 

lida- 

ed in 

1] as- 

ould 

xd on 

vail- 

upil 

  

25 

assignment plans which would be consistent with the 

neighborhood school concept. 

In many such districts the constitutional adequacy 

of the ‘neighborhood school” method of converting 

a dual system into a unitary one will, accordingly, 

depend on the choice of those complementary tech- 

niques designed to eliminate the effects of state- 

imposed discrimination that would otherwise remain 

(see supra, pp. 13-16). The techniques available to 

school officials include: 

(a) Change the grade structure. A school with 
fewer grades can accommodate more children 

in each grade, so that it would serve a larger 

area. 
(b) Permit students to transfer from a school 

in which their race is in the majority to one in 
which it is in the minority. The courts below, in 
adopting this technique, also required that such 
students be provided transportation. 

(¢) Close unneeded or substandard schools. 
(d) Draw zone lines so that they cut across 

racially impacted residential areas instead of 
encircling them. 

(e) Plan new construction of school facili- 

ties so as to serve students of both races. 

All of these techniques are utilized in the plan 

approved by the court of appeals in Mobile, and they 

have been used successfully elsewhere. See, e.g., Sin- 

gleton v. Jackson Municipal Separate School District, 

No. 29,226 (C.A. 5, Aug. 12, 1970); Bradley v. Board 

of Public Instruction of Pinellas County, No. 28,639 

(C.A. 5, July 28, 1970) ; Mannings v. Board of Public



   26 

Instruction of Hillsborough County, No. 28,643 (C.A. 

5, May 11, 1970) ; Henry v. Clarksdale Municipal Sep- 

arate School District, No. 29,165 (C.A. 5, Aug. 12, 

1970). The good faith utilization of such techniques to 

promote desegregation would, in our view, ordinarily 

enable any district which prefers a “neighborhood” 

school policy to achieve compliance with constitutional 

requirements by means of that method of pupil assign- 

ment.® Such racial isolation as might then persist, not 

attributable to school officials, can best be undone 

rough the action of the numerous public and private 

agencies and individuals whose daily decisions can in- 

fluence the racial composition of a neighborhood. 

2. In the present cases, the courts of appeals cor- 

rectly held that neither school board came forward 

with a pupil assignment plan adequate to meet its 

constitutional obligations. Nothing in the record in 

either case would suggest that either school board’s 

objective in the plans it offered was anything other 

than to attempt to maintain racial segregation while 

eliminating overlapping attendance zones. This plainly 

did not fulfill the boards’ ‘‘affirmative duty’’ (Green, 

91 U.S. at 437) to eliminate the effects of racial 

discrimination, “root and branch” (391 U.S. at 438). 

5 Of course, the Constitution does not require the adoption 

of a “neighborhood” pupil assignment policy, and school dis- 
tricts are free, if they prefer, to choose an assignment method 
designed to achieve racial balance or any other non-discrimina- 
tory assignment method. See Memorandum for the United 
States as Amicus Curiae in McDaniel v. Barresi, No. 420, this 

Term. 

  

We 

the qu 

by the 

defau 

ance 

that : 

wide 

e.g., 1 

300; 

Educ 

Boare 

Schoc 

Coma: 

396 TL 

quirt- 

thoug 

the e 

dates 

tion, 

Scho- 

bent 

prop 

of am 

and 

391 ® 

wayss 

395 L 

In 

 



(C.A. 

d Sep- 

2.12, 

es to 

marily 

hood’ 

tional 

1SSign- 

st, not 

ndone 

srivate 

-an 1n- 

Is cor- 

srward 

eet its 

ord in 

yoard’s 

- other 

while 

Hlainly 

Green, 

racial 

t 438). 

vdoption 
ool dis- 

method 

rimina- 

United 

120, this 

27 

We come, then, to the precise issue in these cases: 

the question of the propriety of the remedies adopted 

by the courts below in the face of each school board’s 

default. This Court has consistently held, in accord- 

ance with general principles of equitable remedies, 

that in this situation the lower federal courts have 

wide diseretion in formulating appropriate relief. See, 

e.g., Brown v. Board of Education, 349 U.S. 294, 299- 

300; United States v. Montgomery County Board of 

Education, 395 U.S. 225; Green v. County School 

Board, 391 U.S. 430, 438 n. 4, 439, 442 n. 6; Griffin v. 

School Board, 377 U.S. 218, 232-234; cf. Carter v. Jury 

Commission, 396 U.S. 320, 336-337; Turner v. Fouche, 

396 U.S. 346, 355. Indeed, this Court has authorized re- 

quiring implementation of desegregation plans al- 

though recognizing that the particular plans were not 

the exclusive means of satisfying constitutional man- 

dates. Alexander v. Holmes County Board of Educa- 

tion, 396 U.S. 19; Carter v. West Feliciana Parish 

School Board, 396 U.S. 290. It is, in general, incum- 

bent on the federal courts to assess the school boards’ 

proposals ‘“in light of the facts at hand and in light 

of any alternatives which may be shown as feasible 

and more promising in their effectiveness’ (Green, 

391 U.S. at 439). And, ‘“in this field the way must al- 

ways be left open for experimentation’ (Montgomery, 

395 U.S. at 235). 
In Mobile, we believe that the plan approved by the 

court of appeals meets these standards. It is basically 

a “neighborhood” school plan, supplemented by judi-  



   28 

cious use of complementary techniques (see supra, 

p. 25) designed to minimize residual racial isolation. 

Especially in light of the court’s inclusion of a 

majority-to-minority transfer option and its serupu- 

lous attention to desegregation of faculty and of school 

facilities and activities (See Pet. App. 12a-13a, 16a), 

the plan, in our view, ‘promises realistically to work, 

and promises realistically to work now” (Green, 391 

U.S. at 439). It should, of course, be re-evaluated in 

practice by the courts below, after it has been in op- 

ation for a sufficient time (see 391 U.S. at 439; 

9. v. Board of Education, 391 U.S. 443, 449). 

In Charlotte, we believe the court of appeals cor- 

rectly sustained the district court’s judgment as to 

the junior and senior high schools, in light of the 

unaceeptability of the school board’s proposal and the 

feasibility and practicality of the court’s modifications 

thereof. We also believe the court of appeals was correct 

in remanding the case to the district court for further 

consideration of that aspect of the court’s order requir- 

ing far-reaching cross-busing of elementary school 

pupils, since the district court had initially indicated 

‘some doubt as to whether racial balance was the constitu- 

@ required objective (see App. 710a) and may, 

therefore, have exercised its remedial discretion in pur- 

suit of an erroneous constitutional standard. On 

remand, the district court reconsidered the matter. Al- 

though it had another opportunity to do so, the school 

board again failed to come forward with a constitu- 

tionally adequate plan. The Department of Health, 

Edueati 

tiguous 

acceptal 

and ind 

plan.’ 

In th 

the HE 

was bas 

a const: 

for the 

In light 

by the c 

from tl 

that the 

own ple 

ions of 

quireme 

of the 1 

¢ See 'T 
1078 (Mi 

TH 

that « 

So 

iS nos 

the 1 

tions 

Boar 

situa 

does 

feel 

midc 

See, also. 

 



pra, 

tion. 

of 4 

upu- 

hool 

16a), 

york, 

, 391 

din 

1 Op- 

439; 

cor- 

as to 

[the 

1 the 

tions 

rrect 

rther 

quir- 

chool 

cated 

stitu- 

may, 
 pur- 

«On 

r. Al- 

chool 

stitu- 

ealth, 

  

Education, and Welfare did submit a plan of con- 

tiguous zoning which we believe was constitutionally - 

acceptable, but the school hoard objected to it strongly 

and indicated that it might prefer the court’s original 

plan.’ 

In these circumstances the district court rejected 

the HEW plan. If the decision of the district court 

was based on an understanding that racial balance is 

a constitutional requirement, it cannot be supported 

for the reasons stated in earlier portions of this brief. 

In light of the fact that the plan ultimately adopted 

by the court went beyond the HEW plan in departing 

from the neighborhood school concept, and the fact 

that the school board rejected any alternative to its 

own plan which failed, in our opinion and the opin- 

ions of the courts below, to meet constitutional re- 

quirements, we believe that in further consideration 

of the problem the board should be required to choose 

¢ See Transcript of Hearing, July 15-24, 1970, at 1071, 1077 
1078 (Mr. Waggoner, attorney for the school board) : 

The HEW plan, under anybody’s estimation, is a plan 
that doesn’t produce any satisfactory solutions in any way. 

k * * * * 

So we take the position, if the Court please, that there 
is no reasonable alternative between the Finger plan and 
the Board plan, the alternatives suggested here or por- 
tions thereof are unreasonable, and this places * * * the 
Board and the plaintiffs in the difficult position of seeing a 
situation where an appellate court has ruled one plan 
doesn’t go far enough and the other plan goes too far. We 
feel this is where the chips in this case fall, there is no 
middle ground. : 

See, also, id. at 1113.



  

   

  

30 

from among those plans in the record, including the 

“Finger” plan, the minority board plan, and the Tho 

HEW plan, or in the alternative submit to the district jurisd 

court a plan meeting the standards and requirements it wor 

of the Constitution as enunciated by this Court. tho sl 

The decisions below should not be regarded as pre- sopra 

seribing the only method of pupil assignment which ther 

may, in the future, be used in these districts. It 18 Ron 

still the school boards, and not the federal courts, that 

have the authority, within constitutional limitations, 

to make educational policy—including pupil assign- 

@ policy. The role of the courts in these matters 

  

arises only because of the school boards’ failure to Oct 

fulfill their constitutional obligations. So long as that Th 

failure persists, the eourts must, to a limited extent, lotte 

assume the functions of the school boards and, within ole 

the traditional confines of equitable discretion, en- aond 

gage in ‘‘experimentation’” (Montgomery, 395 1.8. at plan i 

235) comparable to that appropriate for the boards in gested 

achieving the constitutionally required objective. The i 

boards are free, however, to reassert their authority 

whenever they wish, by coming forward with consti- 

tutionally acceptable proposed modifications of the 

Q plan or with an entire new plan that meets 

bonstitutional standards. We see no reason why the 

school boards in these cases should not be permitted 

to propose, for the approval of the courts below, 

new pupil assignment plans (if they so desire) for 

implementation in the 1971-1972 school year. 

 



1g the 

d the 

istrict 

ments 

. 

s pre- 

which 

It 1s 

5, that 

ations, 

.Ssign- 

patters 

ire to 

1s that 

xtent, 

within 

n, en- 

1.8. at 

yrds in 

e. The 

-hority 

consti- 

of the 

meets 

hy the 

mitted 

below, 

e) for 

  

JA 

CONCLUSION 

In view of the district courts’ express retention of 

jurisdiction to entertain amendments to the plans, 

it would be appropriate for this Court to enunciate 

the standards which are applicable to cases of this 

sort and to remand the cases to those courts for fur- 

ther proceedings in the light of those standards. 

Respectfully submitted. 

Erwin N. GRISWOLD, 

Solicitor General. 

JERRIS LEONARD, 

Assistant Attorney General. 

OcToBER 1970. 

"The August 3, 1970, decision of the district court in Char- 

lotte properly retained jurisdiction pursuant to the directive of 

the court of appeals that “after a plan has been approved, the 

district court may hear additional objections or proposed 

amendments, but the parties shall comply with the approved 

plan in all respects while the district court considers the sug- 

gested modifications.” In Mobile the court of appeals also di- 

rected the district court to retain jurisdiction. 

   



  

APPENDIX 
The following status report on eleven southern 

states as of September 1970, indicates how many 

school districts were unitary prior to 1970-71, how 
many are committed to terminal 1970-71 plans, and 

how many are currently not committed to a terminal 

1970-71 plan. This information was compiled from a 

central status report now maintained jointly by the 

Department of Justice and the Department of Health, 

Education and Welfare. While absolute accuracy in 

placing school systems in appropriate categories is not 
possible, every effort has been made to reconcile the 
sometimes conflicting information by using the most 
recent data. 
Under the heading “Unitary Prior to 70-71” are 

included the following: 

1. Those desegregated districts as enumerated 

by HEW, 
2. Those few districts operating under court- 

ordered freedom of choice plans which, accord- 
ing to the statistics, are effectively desegregating 
the systems. 

3. Those districts ordered by district courts 
to desegregate totally before 1970-71. 

Under the heading “ Committed—1970-71 Terminal ”’ 
are included: 

1. Those districts for which the district court 

has ordered a terminal 1970-71 plan. 
2. Those districts for which such a plan has 

been achieved ‘through voluntary agreement 

with HEW., 

(33) 

 



   34 

Under the heading “Uncommitted—1970-71 Term- 

inal” are included: 

1. Those systems currently in court proceed- 

ings where a final plan has not yet been filed or 

ordered. : : 

92. Those districts which are under court or- 

der but which (a) have been ordered to imple- 

ment a terminal 1971-72 plan, or (b) are 

operating under a freedom of choice or other 

court-ordered plan (terminal later than 1971- 

72) which does not appear to he effectively de- 

» segregating the system for 1970-71; districts in 

this category are not currently involved in 

court proceedings. 

3. Those districts which are committed to 

neither a court order nor a voluntary plan; this 

category includes districts from which HEW is 

trying to obtain voluntary compliance, those 

which are involved in out-of-court negotiations 

with the Justice Department, and those which 

have reneged on voluntary plans. 

Under the heading ‘Private Suit-Status Unknown” 

are included districts involved in private suits where 

our information regarding the progress or status of 

hat suit is not current. 

The use of the word “terminal’’ to describe a plan 

and “unitary” to describe a system means that the 

system has been ordered or has agreed to follow a plan 

which would achieve conversion to a unitary system 

by the fall of 1970. But some cases are on appeal, 

some plans may not be fully implemented, and all may 

still be subject to challenge or modifications in the 

district courts. In Texas, we have classified as unitary 

prior to 1970-71 some all-black districts; a govern- 

  

ment s 

grated 
not re 

dents, 
involv 

studen 

 



‘erm- 

ceed- 

ed or 

t or- 

nple- 

are 

other 

1971 

y de- 
cts In 

din 

xd to 

: this 

IW is 

those 

tions 

which 

, plan 

it the 

1, plan 

ystem 

ppeal, 
1 may 

in the 

nitary 

OVern- 

  

35 

ment suit to merge some of these distriets with inte- 

grated distriets is pending. Because Texas law did 

not require segregation of Spanish-surnamed stu- 

dents, the report does not take into account litigation 

involving discrimination against Spanish-surnamed 

students.



  

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~ 
° 

STATUS OF SCHOOL SYSTEMS IN 11 SOUTHERN STATES 
  

  

  

  

  

  

Alabama Arkansas Florida Georgia Louisi- Mississ North South  Ten- Virginia Texas Total 
ana sippi Carolina Carolina nessee 

Unitary prior 10 1070-71. vin serie nsanshansmnians 32 305 35 66 33 98 12 109 107 1,126 1,986 

Committed: 1970-71 terminal: 
BT ibe | ERE A 88 18 23 102 26 56 10 32 23 14 28 420 

Voluntary DIAN... oo cnn mnie mmm nm mw mn 0 48 9 13 3 28 35 49 9 11 35 240 

Subiotal i icra sen ST 120 371 67 181 62 147 143 93 141 132 1,189 2, 646 

Uncommitted: 1970-71: 
In current court proceedings... ..._....... 2 7 0 1 2 f } 4 0 0 X 4 22 

Under court order: 
(a) 197-72 terminal... . . nov siubamamaan i i 0 0 0 1 0 0 0 0 0 3 

(b) Not unitary and not in current 
court proceedings........neameeaas 1 1 0 1 1 0 0 0 0 0 9 13 

Not committed to voluntary plan and not in 
E17 Dehn bea ae DEE Se SR Se SL 0 3 0 5 1 1 2 0 3 0 2 17 

bye RE A WC Ee OM 4 12 0 7 4 3 [i 0 3 1 15 55 

Private suit—Status unknown... .........__.._. 0 3 0 3 0 0 4 0 [1 2 3 20 

Total number of districts. .cocoenmnnernan=n 124 386 67 191 66 150 153 93 149 135 1,207 Zn [||01807706-9bb0-4ee6-9635-bea0ab46ca5a||]